If a magistrate issues an emergency protective order giving someone possession of a pet, can the JDR court enforce it by contempt if the other party takes the animal anyway?

Plain-English summary

The 25th Judicial District Chief JDR Judge asked a procedural question about a new piece of the protective-order statute. During the 2014 session the General Assembly amended § 16.1-253.4 to let a judge or magistrate include a provision in a family-abuse emergency protective order giving the petitioner possession of any "companion animal" (as defined in § 3.2-6500), as long as the petitioner qualifies as an "owner" under the same section. Unlike most EPO violations, which are handled as criminal misdemeanors under § 16.1-253.2, a violation of the companion-animal provision was carved out and labeled "contempt of court."

That created a practical question: when the EPO with the companion-animal provision was issued by a magistrate (which most EPOs are, because they are emergency orders often entered at night or on weekends), and the respondent then takes the dog or cat anyway, who enforces? Magistrates do not have contempt power. Could the JDR court enforce a contempt provision in an order it did not issue?

AG Herring said yes, on three connected grounds.

The statute makes the contempt provision uniform regardless of who issued the EPO. Section 16.1-253.4 does not distinguish judge-issued and magistrate-issued EPOs for purposes of the contempt remedy. The General Assembly knew magistrates issue most EPOs. By using the contempt remedy across the board, the legislature was treating the magistrate-issued EPO's companion-animal provision as equivalent to a court order for enforcement purposes.

Magistrates have no contempt power; JDR courts do. Contempt power is inherent in courts but not in magistrates, whose authority is limited to what statute confers. No statute gives magistrates contempt authority. Section 16.1-241(M) gives JDR courts broad jurisdiction over "petitions filed for the purpose of obtaining an order of protection pursuant to . . . [§] 16.1-253.4," and § 16.1-253.4(E) requires that copies of EPOs (other than those issued by a circuit court) be filed in the JDR court, that returns of service be made to the JDR court, and that motions to modify or dissolve the order go to the JDR court. The General Assembly clearly intended the JDR court to be the enforcement court. Section 16.1-227 also instructs that the JDR court's powers be construed liberally and that the judge "shall possess all necessary and incidental powers and authority." The plain reading is that the JDR court can use its inherent contempt power to enforce a magistrate-issued EPO's companion-animal provision.

The right procedure is a show cause summons for indirect contempt. Because the violation of the companion-animal provision will happen outside the courtroom (the respondent takes the dog from the petitioner's house, for example), it is "indirect" rather than "direct" contempt. Summary contempt is unavailable. The court issues a show cause summons giving the respondent notice and an opportunity to be heard; if the respondent does not appear, the court can issue a capias. The sentence is capped at six months in jail or $500 in fines unless the court affords the respondent the right to a jury trial under Cheff v. Schnackenberg.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The protective order statutes (§§ 16.1-253.1, 16.1-253.2, 16.1-253.4, 16.1-279.1) and the magistrate statute (§ 19.2-45) have been amended several times since 2014. Companion-animal provisions in protective orders have been expanded in scope. Any contempt proceeding today should rely on current statutory text and any later Virginia Supreme Court guidance on protective-order enforcement.

Common questions

What is a "companion animal" in Virginia's protective-order statutes?
Section 3.2-6500 defines it broadly as any domestic or feral dog, cat, equine, or other animal that has traditionally been kept as a pet or for service to the owner. Livestock, wildlife, and animals kept for breeding or sale are generally outside the definition. The protective-order provision requires that the petitioner meet the § 3.2-6500 definition of "owner," not just "person with the pet."

Why are companion-animal violations treated as contempt, not a misdemeanor?
Section 16.1-253.2 makes most EPO violations criminal misdemeanors. The 2014 legislature carved out companion-animal violations and made them contempt. This treats them more like a court-order enforcement question (the petitioner has the pet; the respondent took it back; the petitioner asks the court to enforce the order) than like the separate-crime model used for stay-away violations. It also gives the JDR judge flexibility on sanction.

Can a magistrate issue a contempt sanction directly?
No. Magistrates can issue EPOs, but they cannot conduct contempt proceedings or impose contempt sanctions. The enforcement step always runs through the JDR court (or a circuit court, where the EPO was issued there).

What is "direct" versus "indirect" contempt?
Direct contempt is contemptible conduct that occurs in the presence of the court (yelling at the judge in open court, refusing to be sworn). The court can handle it summarily. Indirect contempt is contemptible conduct that occurs outside the court (violating an order at home). It requires due process: notice, summons, and an opportunity to be heard.

How does the show cause summons process work?
The petitioner (or the court on its own) files a petition alleging the violation. The court issues a show cause summons telling the respondent to appear and explain why they should not be held in contempt. If the respondent fails to appear, the court can issue a capias (an arrest warrant) to bring them in. The hearing follows normal due process: the petitioner proves the violation, the respondent gets to respond, the court decides.

What is the maximum punishment without a jury trial?
Per Cheff v. Schnackenberg (1966) and Virginia cases following it, a defendant facing more than six months in jail or a $500 fine for criminal contempt is entitled to a jury trial. The court can avoid the jury-trial right by limiting itself to those caps.

Does this apply only to family-abuse EPOs or also to preliminary and final protective orders?
The opinion focuses on EPOs under § 16.1-253.4. The 2014 amendments also added companion-animal provisions to the preliminary and final protective order statutes and to protective orders under Title 19.2. The same enforcement logic likely applies, with the relevant differences being that preliminary and final orders are only issuable by a court (not a magistrate), so there is no magistrate-vs-judge question.

Background and statutory framework

• Va. Code § 16.1-253.4: Family-abuse emergency protective order statute; allows a judge or magistrate to issue the EPO and to include conditions, including (post-2014) a companion-animal possession provision.
• Va. Code § 16.1-253.4(L): Violation of a companion-animal provision is contempt of court.
• Va. Code § 16.1-253.2: Criminal penalties for most EPO violations (with the companion-animal exception in § 16.1-253.4(L)).
• Va. Code § 16.1-241(M): JDR court jurisdiction over family-abuse protective-order petitions.
• Va. Code § 16.1-227: Liberal-construction directive for JDR court powers.
• Va. Code § 19.2-45: Magistrate authority limited to enumerated statutory powers.
• Va. Code § 3.2-6500: Definitions of "companion animal" and "owner."
• Va. Sup. Ct. R. 3A:2: Magistrate definitional reference.

The interpretive moves:

• The General Assembly intentionally chose contempt as the remedy for companion-animal-provision violations, treating magistrate-issued and judge-issued orders alike.
• JDR courts have inherent contempt power; magistrates do not.
• Section 16.1-241(M) gives the JDR court the right enforcement court for these orders.
• Indirect contempt requires show-cause due process.
• The six-months/$500 cap applies absent jury-trial procedures.

Citations

• Va. Code §§ 16.1-227, 16.1-241(M), 16.1-253.1, 16.1-253.2, 16.1-253.4, 16.1-279.1
• Va. Code §§ 3.2-6500, 19.2-11, 19.2-45
• Va. Sup. Ct. R. 3A:2
• 2014 Va. Acts ch. 346
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Nelson v. Cnty. of Henrico, 10 Va. App. 558, 393 S.E.2d 644 (1990)
• Univ. of Va. v. Harris, 239 Va. 119, 387 S.E.2d 772 (1990)
• Bd. of Supvrs. v. King Land Corp., 238 Va. 97, 380 S.E.2d 895 (1989)
• Bryant v. Commonwealth, 198 Va. 148, 93 S.E.2d 130 (1956)
• Berry v. Smith, 148 Va. 424, 139 S.E. 252 (1927)
• Wall v. Am. Bank & Trust Co., 159 Va. 871, 167 S.E. 425 (1933)
• Fenner v. Dawes, 748 F. Supp. 404 (E.D. Va. 1990)
• Parham v. Commonwealth, 60 Va. App. 450, 729 S.E.2d 734 (2012)
• Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010)
• United Steelworkers of Am. v. Newport News Shipbuilding & Dry Dock Co., 200 Va. 547, 260 S.E.2d 222 (1979)
• Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911)
• Davis v. Commonwealth, 219 Va. 395, 247 S.E.2d 681 (1978)
• Burdett's Case, 103 Va. 838, 48 S.E. 878 (1904)
• Morris v. Creel, 3 Va. 333 (1814)
• Commonwealth v. Dandridge, 4 Va. 408 (1824)
• Cheff v. Schnackenberg, 384 U.S. 373 (1966)
• Kessler v. Commonwealth, 18 Va. App. 14, 441 S.E.2d 223 (1994)
• Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974)
• 2012 Op. Va. Att'y Gen. 90

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-033_Filson.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 21, 2014

The Honorable Anita D. Filson
Chief Judge
Juvenile and Domestic Relations District Court
25th Judicial District
20 South Randolph Street, Suite 201
Lexington, Virginia 24450

Dear Judge Filson:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether a juvenile and domestic relations court ("JDR court") may enforce, through contempt proceedings, a provision of an emergency protective order ("EPO") granting the petitioner the possession of a companion animal when the EPO was issued by a magistrate. If the court may enforce such a provision, you further ask the appropriate mechanism for initiating the proceedings. Finally, you ask the maximum punishment that may be imposed for violating an EPO provision relating to a companion animal.

Response

It is my opinion that a JDR court may enforce, through indirect contempt proceedings, a provision of an EPO granting the petitioner the possession of a companion animal when a magistrate has issued the EPO. Further, it is my opinion that the contempt proceedings may be initiated by a JDR court through the issuance of a show cause summons. Finally, it is my opinion that a JDR court has discretion in imposing punishment for a violation of a companion animal provision in an EPO, but the punishment may not exceed a jail sentence in excess of six months or a fine in excess of $500 without affording the defendant the right to trial by jury.

Applicable Law and Discussion

As an initial matter, I note the following principles of statutory construction that guide response to your inquiry. First, "[w]hen construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute."[1] Nonetheless, statutes are not to be interpreted in isolation, but are to be read in pari materia.[2] Moreover, "[s]tatutes must be construed consistently with each other and so as to reasonably and logically effectuate their intended purpose."[3] "Remedial statutes are to be 'construed liberally, so as to suppress the mischief and advance the remedy' in accordance with the legislature's intended purpose. All other rules of construction are subservient to that intent."[4]

EPOs in instances of family abuse are governed by § 16.1-253.4 of the Code of Virginia. The law provides that "[a]ny judge of a circuit court, general district court, juvenile and domestic relations district court or magistrate may issue [an EPO] in order to protect the health or safety of any person."[5] When issuing an EPO, the judge or magistrate may impose certain conditions on the respondent.[6] During its 2014 legislative session, the General Assembly amended § 16.1-253.4 to allow the judge or magistrate additionally to "[grant] the petitioner the possession of any companion animal as defined in § 3.2-6500[,] if such petitioner meets the definition of owner in § 3.2-6500."[7] While a violation of any other condition of an EPO is subject to the criminal sanctions contained in § 16.1-253.2, § 16.1-253.4(L) provides that a violation of a companion animal provision "shall constitute contempt of court."[8]

In declaring the failure to obey a companion animal provision of an EPO contempt of court, § 16.1-253.4 makes no distinction between EPOs that are issued by magistrates and those that are issued by judges. By providing the same sanction irrespective of who issues the EPO, the General Assembly has shown its intent to treat a companion animal provision in a magistrate-issued EPO as equivalent to a court order or process for purposes of enforcement.

"The power of a court to punish for contempt is inherent in the nature and constitution of the court,"[9] but a magistrate has no such inherent power, and no statute confers such enforcement power upon magistrates.[10]

The General Assembly has given JDR courts jurisdiction over all "[p]etitions filed for the purpose of obtaining an order of protection pursuant to . . . [§] 16.1-253.4 . . ." that fall within [the court's] geographic territory.[11] Moreover, except for those EPOs issued by a circuit court, a copy of an EPO is required to be filed with the JDR court, and all returns of service of EPOs are to be made to JDR court, irrespective of who issued the protective order.[12] Also, amendments to EPOs remain within the province of the JDR court.[13] Accordingly, in light of the broad jurisdiction conferred by the General Assembly upon JDR courts over family abuse EPOs and the clear mandate that violations of any companion animal provision of such orders be punishable as contempt of court, I conclude that a JDR court may use its inherent contempt powers to enforce a companion animal provision in a magistrate-issued EPO.[14]

Because a violation of a companion animal provision in an EPO presumably will occur outside the presence of the court, the court's power to employ summary contempt proceedings is not applicable,[15] and the offense is indirect contempt.[16] Accordingly, an aggrieved party first must file a petition with the court,[17] and then, "the offender must be brought before the court by a rule or some other sufficient process."[18] Here, the proper procedure is for the court to issue a show cause summons to provide the alleged violator with notice and the opportunity to be heard.[19] Should the alleged violator fail to appear on the return date, the court may issue a capias to secure his appearance.[20]

For indirect contempt, the sanctions that may be imposed by the court are subject only to the constitutional limitation that there may not be a jail sentence in excess of six months or a fine in excess of $500 unless the defendant is afforded the right to trial by jury.[21]

Conclusion

Accordingly, it is my opinion that a JDR court may enforce, through indirect contempt proceedings, a provision of an EPO granting the petitioner the possession of a companion animal when a magistrate has issued the EPO. Further, it is my opinion that the contempt proceedings may be initiated by the JDR court through the issuance of a show cause summons. Finally, it is my opinion that a JDR court has discretion in imposing punishment for a violation of a companion animal provision in an EPO, but the punishment may not exceed a jail sentence in excess of six months or a fine in excess of $500 without affording the defendant the right to trial by jury.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted).

[2] See, e.g., 2012 Op. Va. Att'y Gen. 90, 91 (citing Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957)).

[3] Nelson v. Cnty. of Henrico, 10 Va. App. 558, 561, 393 S.E.2d 644, 646 (1990).

[4] Univ. of Va. v. Harris, 239 Va. 119, 124, 387 S.E.2d 772, 775 (1990) (quoting Bd. of Supvrs. v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 898 (1989)).

[5] VA. CODE ANN. § 16.1-253.4(A). I note that, in contrast to EPOs, which can be issued by a magistrate, preliminary and final protective orders may be issued only by a court. See §§ 16.1-253.1 (Supp. 2014); 16.1-279.1 (Supp. 2014).

[6] Section 16.1-253.4(A).

[7] 2014 Va. Acts ch. 346. The 2014 legislation similarly amended the statutes governing preliminary and final protective orders in cases of family abuse as well those that apply to protective orders issued pursuant to Title 19.2 of the Code.

[8] Section 16.1-253.4(L) expressly provides that, "Except as provided in 16.1-253.2, a violation of a protective order issued under this section shall constitute contempt of court." Section 16.1-253.2 sets forth criminal penalties for all EPO violations, with the exception of violations of companion animal provisions. See § 16.1-253.2 (Supp. 2014). By process of elimination, therefore, § 16.1-253.4(L) applies only to companion animal provisions, and establishes contempt as the applicable enforcement mechanism.

[9] Bryant v. Commonwealth, 198 Va. 148, 152, 93 S.E.2d 130, 133 (1956).

[10] Although deemed a judicial officer for certain purposes, see VA. SUP. CT. R. 3A:2; Berry v. Smith, 148 Va. 424, 426-27, 139 S.E. 252, 253 (1927), a magistrate's powers are limited by statute. See VA. CODE ANN. § 19.2-45 (Supp. 2014) (providing that a magistrate's authority is limited to the powers enumerated therein and "such other acts or functions specifically authorized by law"); Fenner v. Dawes, 748 F. Supp. 404, 411 (E.D. Va. 1990); cf., e.g., Wall v. Am. Bank & Trust Co., 159 Va. 871, 875, 167 S.E. 425, 426 (1933) (referring to the limited powers of justices of the peace, the historical predecessors to magistrates in Virginia). I find no statutory provision authorizing a magistrate to conduct contempt proceedings, nor to impose fines or jail sentences.

[11] Section 16.1-241(M) (Supp. 2014).

[12] Section 16.1-253.4(E).

[13] See § 16.1-253.4(C) ("The respondent may at any time file a motion with the court requesting a hearing to dissolve or modify the order[.]").

[14] This conclusion comports with the directive of § 16.1-227, which establishes that the law related to JDR courts "shall be construed liberally and as remedial in character, and the powers hereby conferred are intended to be general to effect the beneficial purposes herein set forth. It is the intention of this law that in all proceedings the welfare of the child and the family, the safety of the community and the protection of the rights of victims are the paramount concerns of the Commonwealth and to the end that these purposes may be attained, the judge shall possess all necessary and incidental powers and authority, whether legal or equitable in their nature."

[15] Summary contempt proceedings dispense with formal process normally afforded defendants; summary contempt is available only for behavior that occurs in the presence of the court. See Parham v. Commonwealth, 60 Va. App. 450, 729 S.E.2d 734 (2012) (explaining differences between "direct" and "indirect" contempt); Scialdone v. Commonwealth, 279 Va. 422, 442-43, 689 S.E.2d 716, 727-28 (2010) (concluding that, because "all the essential elements of the alleged contemptible conduct did not occur in the presence of the[] court[,] ... the defendants were, therefore, entitled to the due process rights associated with a plenary proceeding"). See also United Steelworkers of Am. v. Newport News Shipbuilding & Dry Dock Co., 200 Va. 547, 550, 260 S.E.2d 222, 224 (1979) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911)); Davis v. Commonwealth, 219 Va. 395, 398, 247 S.E.2d 681, 682 (1978) (quoting Burdett's Case, 103 Va. 838, 845-846, 48 S.E. 878, 880-881 (1904)).

[16] "In dealing with indirect contempts -- that is, such as are committed not in the presence of the court -- the offender must be brought before the court by a rule or some other sufficient process." Burdett, 103 Va. at 845-46, 48 S.E. at 880-81.

[17] See JUVENILE & DOMESTIC RELATIONS DIST. COURT MANUAL, at 8-18, 8-19 (rev. Sept. 2013), available at http://www.courts.state.va.us/courts/jdr/jdrman/chapter08.pdf.

[18] Davis, 219 Va. at 398, 247 S.E.2d at 682 (quoting Burdett, 103 Va. at 845-46, 48 S.E. at 880-81).

[19] See § 19.2-11 (2008); Morris v. Creel, 3 Va. 333, 334 (1814); but see Commonwealth v. Dandridge, 4 Va. 408, 426-27 (1824) (noting that a show cause summons is sometimes dispensed with in favor of a direct attachment on the defendant).

[20] Dandridge, 4 Va. at 427.

[21] See Greene v. Tucker, 375 F. Supp. 892, 898-99 (E.D. Va. 1974) (citing Cheff v. Schnackenberg, 384 U.S. 373 (1966)); Kessler v. Commonwealth, 18 Va. App. 14, 17, 441 S.E.2d 223, 225 (1994).