                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, McCullough and Senior Judge Annunziata
UNPUBLISHED


              Argued at Alexandria, Virginia


              JULIAN CARDENAS-NAJARRO
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0699-13-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                  MARCH 4, 2014
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                               Burke F. McCahill, Judge

                               Thomas K. Plofchan, Jr. (Lavanya K. Carrithers; Westlake Legal
                               Group, on briefs), for appellant.

                               Susan Baumgartner, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Julian Cardenas-Najarro, appellant, appeals his conviction of violating the terms of a

              preliminary protective order. Appellant argues the Commonwealth failed to prove he had notice of

              the terms of the preliminary protective order and that he intended to violate the terms of the order.

              The evidence was sufficient to prove appellant had adequate notice of the terms of the preliminary

              protective order and that he intended to violate it. We affirm the trial court’s judgment of

              conviction.

                                                           Background

                     “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

              granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

              26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,

              443, 358 S.E.2d 415, 418 (1987)). “The credibility of the witnesses and the weight accorded the

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence

as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

       Viewed in this light, the Commonwealth’s evidence proved that on August 30, 2012, Nelly

Nunez, appellant’s wife, obtained a preliminary protective order against appellant from the juvenile

and domestic relations district court. The order prohibited appellant from engaging in acts of family

abuse against Nunez; Johan Cardenas, their son; and Miguel Ramos, appellant’s stepson. The order

directed that appellant have no contact with the family except by telephone with Nunez to “discuss

household bills.” The same day the order issued, Deputy Zaldua personally served appellant with

the preliminary protective order. Nunez did not hear the conversation Zaldua had with appellant

outside the house when he served the order. Nunez testified, however, that Zaldua spoke Spanish to

her and she heard him tell appellant in Spanish that he had ten minutes to leave the house.

       Nunez testified appellant sent her two text messages on September 1, 2012. The first stated,

“Hola.” The second message was translated to say, “Nelly, please, I want to talk with you and with

Johan. You can tell Miguel that I want to apologize for everything as well. I would like to speak

with him. Forgive me for what happened to you. You’re my family.” On September 2, 2012,

appellant sent another text message which was translated to say, “Please answer your telephone. I

want to speak with him.”

       Appellant concedes he was personally served with the order and that he sent the text

messages. However, appellant testified he speaks and understands very little English. Appellant

recounted that Zaldua served the order on him, but Zaldua did not speak fluently in Spanish.

Appellant asserted that Zaldua told him only that he had to leave for fifteen days and could not have

“face-to-face” contact with Nunez. Appellant stated Zaldua did not tell him he could not contact her

by telephone, he did not understand he was not permitted to contact Nunez by telephone, and he did

not intend to violate the preliminary protective order by texting her. Although appellant testified to

                                                 -2-
his understanding of what Zaldua told him, Zaldua’s actual statements to appellant were not in

evidence.

        The trial court noted appellant was able to answer some questions without the assistance of

the interpreter. The trial court also emphasized that appellant had been working at the same job for

nine years and gave credit to Nunez’s testimony that appellant spoke English in the course of his

employment. The trial court accepted Nunez’s assertion that appellant spoke better English than she

spoke. Finally, the trial court gave weight to Nunez’s account that Zaldua spoke in Spanish, thereby

discounting appellant’s claim that Zaldua did not speak fluently. Reviewing all the evidence before

it, the trial court found it sufficient to prove appellant violated the terms of the preliminary

protective order.

                                           Procedural Default

        The Commonwealth contends appellant’s assignment of error does not comply with the

requirements of Rule 5A:20(c) because Rule 5A:12(c)(1) requires the assignment of error “to list,

clearly and concisely and without extraneous argument, the specific error in the ruling below upon

which the party intends to rely.” The Commonwealth argues appellant’s assignment of error does

not include the arguments he makes on brief. Appellant’s assignment of error reads as follows:

                The trial court denied Mr. Cardenas due process of law by
                determining there was sufficient evidence to prove [he] violated a
                preliminary protective order beyond a reasonable doubt based on
                (a) inconsistent testimony and uncorroborated evidence from the
                complainant, who also does not read, write, or speak English,
                regarding Mr. Cardenas’ ability to communicate in English;
                (b) evidence that Mr. Cardenas was served with the preliminary
                protective order but not evidence that he was explained the terms of
                the order in his native tongue; and (c) evidence of the text message
                that was sent from his cell phone.

Appellant’s arguments in support of this assignment of error are that (1) he did not receive sufficient

notice of the terms of the protective order because the officer did not explain the terms to him in

Spanish and (2) because he did not have notice of the terms, he did not intend to violate the terms of
                                                   -3-
the preliminary protective order. The assignment of error does not encompass the argument

regarding appellant’s intent to violate the order, but does suggest the notice argument in subsection

(b).

        “Rule 5A:12 applies only to petitions for appeal. Rule 5A:12 does not apply to opening

briefs, which are filed once a petition for appeal has been granted by this Court. The requirements

for opening briefs are set out in Rule 5A:20.” Calloway v. Commonwealth, 62 Va. App. 253, 258,

746 S.E.2d 72, 74-75 (2013). Rule 5A:20 requires only that the brief contain an assignment of

error, without qualification or description as to what the assignment of error must contain. “[I]f the

Commonwealth seeks to challenge the sufficiency of an assignment of error under Rule 5A:12, it

must do so prior to the granting of the petition for appeal. . . . Compliance with Rule 5A:12(c)(1) is

subject to waiver if not timely raised.” Id. at 259, 746 S.E.2d at 75 (footnote omitted). The

Commonwealth did not file a brief in opposition at the petition stage and, thus, did not raise the

objection to the assignment of error. “The Commonwealth’s failure to object to the sufficiency of

the assignment of error under Rule 5A:12 prior to the granting of the petition for appeal will be

considered a waiver of that objection.” Id. (footnote omitted).

        However, the assignment of error must alert the Court to the specific issue being raised.

                A properly crafted assignment of error will “point out the specific
                errors claimed to have been committed by the court below.” First
                Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 341,
                56 S.E. 158, 163 (1907) (citation omitted). Such specificity
                “enable[s] the reviewing court and opposing counsel to see on what
                points plaintiff’s counsel intends to ask a reversal of the judgment or
                decree, and to limit discussion to those points.” Id.

Whitt v. Commonwealth, 61 Va. App. 637, 646-47, 739 S.E.2d 254, 259 (2013) (en banc).

Appellant’s assignment of error does not address the argument that appellant did not intend to

violate the order. Therefore, we analyze only the intent argument to the extent that appellant’s

intent is established by the sufficiency of the notice he received.

                                                  -4-
       Further, appellant assigns error to the sufficiency of the evidence based on inconsistent and

uncorroborated evidence of the complainant, subsection (a), and the text messages he sent,

subsection (c). Appellant presented no argument or authority in support of these contentions and,

thus, appellant has abandoned these arguments on brief. See Rule 5A:20(e) (requiring the opening

brief of appellant to contain “[t]he standard of review and the argument (including principles of law

and authorities) relating to each assignment of error”); see also Farmer v. Commonwealth, 62

Va. App. 285, 295-96, 746 S.E.2d 504, 509 (2013); Epps v. Commonwealth, 59 Va. App. 71, 77

n.6, 717 S.E.2d 151, 154 n.6 (2011); Atkins v. Commonwealth, 57 Va. App. 2, 20, 698 S.E.2d 249,

258 (2010). Thus, we decline to review these issues assigned as error.

                                         Notice of the Order

       Appellant contends the Commonwealth failed to prove he had notice of the terms of the

preliminary protective order because Zaldua did not explain the order to him in Spanish. Code

§ 16.1-253.1(A) allows the juvenile and domestic relations district court to “issue a preliminary

protective order against an allegedly abusing person in order to protect the health and safety of the

petitioner or any family or household member of the petitioner.” Code § 16.1-253.1(B) directs that

“the order shall be served forthwith on the allegedly abusing person in person as provided in

§ 16.1-264 . . . .” (Emphasis added.)

               In order to hold a litigant in contempt for violation of a court order,
               the litigant must have knowledge of the terms of the order. See Tsai
               v. Commonwealth, 51 Va. App. 649, 653, 659 S.E.2d 594, 596
               (2008) (holding that a court may not hold a person in contempt when
               that person never received “notice of any kind” of an order); see also
               Calamos v. Commonwealth, 184 Va. 397, 406, 35 S.E.2d 397, 400
               (1945) (“Since the evidence fails to show that [the plaintiff] had
               actual knowledge or notice of the . . . order . . . the court erred in
               holding him (the plaintiff in error) in contempt for violating such
               order.”).

Zedan v. Westheim, 60 Va. App. 556, 574, 729 S.E.2d 785, 794 (2012).



                                                 -5-
        Appellant concedes, and the record reflects, he received personal service of the order.

Zaldua noted on the order’s return that he personally served appellant on August 30, 2012, at

3:25 p.m. The order clearly stated appellant could have no contact with the family members, except

by telephone with Nunez to discuss household bills. Once an order is served on a litigant, the

litigant is deemed to have notice of the document or proceeding. “Personal service satisfies [a]

requirement of actual notice. Appellant’s failure to read the papers or to ascertain their content does

not nullify the fact that he received actual notice.” Smoot v. Commonwealth, 18 Va. App. 562, 566,

445 S.E.2d 688, 691 (1994) (personal service of habitual offender order deemed actual notice,

despite Smoot’s claim he never read or determined contents of the order). Thus, the

Commonwealth met its burden in proving appellant had notice of the order.

        Appellant further argues, however, that when he was served with the order the officer did

not “explain[] the terms of the order in his native tongue.” Appellant cites no authority, and we find

none to say, that the process server must explain the document to the recipient in order for him to

have knowledge of the terms of the order. Appellant’s reliance on Tsai, 51 Va. App. at 653, 659

S.E.2d at 596, is misplaced. In Tsai, the Court found Tsai did not have knowledge of the terms of

the order because there was no evidence it had ever been served on her. Thus, she did not have

notice of any kind, personal or otherwise, of the terms of the order.

        Here, appellant received personal service and, thus, is charged with notice of the contents of

the order. It is well settled that “[a] court speaks through its orders . . . .” McBride v.

Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). Neither Code § 16.1-253.1 nor

§ 16.1-264 requires the process server to explain or interpret the order being served. If the litigant is

properly served, it is incumbent upon the recipient to learn the import of the order. See Smoot, 18

Va. App. at 566, 445 S.E.2d at 691. The trial court did not err by finding appellant had proper

personal service and notice of the terms of the order.

                                                   -6-
                           Intent to Violate the Preliminary Protective Order

        Prohibited acts of contact in protective orders “are intentional acts . . . that intentionally

pierce the protective barrier between the petitioner and the respondent fashioned by the protective

order.” Elliott v. Commonwealth, 277 Va. 457, 464, 675 S.E.2d 178, 182 (2009). Having found

that appellant had notice of the terms of the order, the trial court rejected appellant’s evidence that

he did not understand English sufficiently and that he thought he was prohibited only from having

“face-to-face” contact with family members. The trier of fact is not required to accept a party’s

evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986),

but is free to believe and disbelieve in part or in whole the testimony of any witness, Rollston v.

Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). At trial, appellant was able to

respond at times without the help of the interpreter and there was evidence that he used English in

his employment of nine years. Nunez also testified that Zaldua spoke Spanish. The trial court

reasonably could rely on this evidence to determine that appellant had sufficient understanding to

recognize he was violating the terms of the order.

        Appellant had notice of the terms of the preliminary protective order. Appellant admitted

sending the text messages, an intentional act of contact with Nunez. The evidence adduced at trial

supports the trial court’s finding that appellant intended to violate the order.

                                               Conclusion

        The evidence proved that after proper service of the order prohibiting contact, appellant sent

three text messages to Nunez, not for the purpose of discussing household bills. Based on the return

of personal service, appellant had notice of the terms of the order and he acted intentionally in

violation of those terms. Accordingly, the evidence was sufficient to find beyond a reasonable




                                                   -7-
doubt that appellant violated the preliminary protective order. We affirm the judgment of the trial

court.

                                                                                           Affirmed.




                                                -8-
