                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 1550-02-2                JUDGE WALTER S. FELTON, JR.
                                              OCTOBER 28, 2002
DENISE DUMONT


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge

          Susan M. Harris, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellant.

          Esther J. Windmueller for appellee.


     The Commonwealth appeals the judgment of the trial court

granting Denise Dumont's motion to dismiss.    The Commonwealth

contends that the trial court erred in finding that the language

"clear and significant violation" renders Code § 18.2-49.1(A)

unconstitutionally vague.   For the following reasons, we reverse

the judgment of the trial court and remand for further proceedings

consistent with this opinion.

                            I.   BACKGROUND

     D.D., who was twelve years old at the time of these events,

is the subject of a custody and visitation order originally

entered by the Circuit Court of Kane County, Illinois.     The


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Illinois court granted Robert Dumont the physical custody of

D.D. on January 20, 2000.

     On November 27, 2000, the Chesterfield County Juvenile and

Domestic Relations District Court amended the Illinois order.

The amended order required that any contact between Ms. Dumont

and D.D. be supervised by D.D.'s father, Mr. Dumont.

     On June 14, 2001, D.D. traveled to Illinois to visit her

grandmother.   While she was there, on June 27, 2001, Ms. Dumont

sought an emergency protective order in the Kane County

(Illinois) Circuit Court to gain custody of D.D.    Ms. Dumont

alleged that D.D. had reported to her that Mr. Dumont had

grabbed her hair and kicked her.   The alleged physical

altercation occurred approximately eight months prior to Ms.

Dumont initiating the action in the Kane County Circuit Court in

Illinois.   Ms. Dumont contacted social services in Florida. 1   The

Florida social services department investigated the allegations

and determined that they were unfounded.   The Kane County

Circuit Court denied Ms. Dumont's request for an emergency

protective order.

     Following the Illinois court's refusal to grant Ms.

Dumont's request, she took D.D. from her grandmother's house in

Illinois and absconded with her to Wisconsin.   She thereafter




     1
       Mr. Dumont was a resident of Florida at that time and
continues to be so as of this hearing.

                               - 2 -
refused to tell Mr. Dumont where D.D. was located and refused to

return her to Mr. Dumont as required by the amended court order.

     On July 9, 2001, Mr. Dumont obtained a parental abduction

warrant asserting that Ms. Dumont violated the court order by

taking D.D. from her grandmother's house, absconding with the

child to Wisconsin, refusing to return D.D. to him, and refusing

to tell him where D.D. was located.       Ms. Dumont was charged with

parental abduction in violation of Code § 18.2-49.1(A).

     Prior to trial, Ms. Dumont filed a motion to dismiss the

charges against her, alleging that Code § 18.2-49.1(A) was

unconstitutionally vague.   On April 30, 2002, the Circuit Court

of Chesterfield County granted Ms. Dumont's motion, declaring

Code § 18.2-49.1(A) unconstitutionally void for vagueness.      The

Commonwealth appeals the judgment of the trial court.

                            II.    ANALYSIS

     "All actions of the General Assembly are presumed to be

constitutional.   Thus, courts will declare an enactment

unconstitutional only when it clearly is repugnant to some

provision of either the state or federal constitution."       Hess v.

Snyder Hunt Corp., 240 Va. 49, 52-53, 392 S.E.2d 817, 820

(1990).   "[E]very presumption is to be made in favor of an act

of the legislature, and it is not to be declared

unconstitutional except where it is clearly and plainly so."

Peery v. Board of Funeral Directors & Embalmers, 203 Va. 161,

165, 123 S.E.2d 94, 97 (1961).

                                  - 3 -
     It is well settled that "'the person to whom a statute may

constitutionally be applied may not challenge that statute on

the ground that it may conceivably be applied unconstitutionally

to others in situations not before the Court.'"    Cottee v.

Commonwealth, 31 Va. App. 546, 553, 525 S.E.2d 25, 29 (2000)

(quoting Los Angeles Police Dept. v. United Reporting Publishing

Corp., 528 U.S. 32, 38 (1999)).    "This general rule reflects two

'cardinal principles' of our constitutional order:   the personal

nature of constitutional rights and the prudential limitations

on constitutional adjudication."    Cottee, 31 Va. App. at 553,

525 S.E.2d at 29.

          [A] "[d]efendant has no standing to make a
          broad and general facial statutory
          challenge . . . ." Woodfin v. Commonwealth,
          236 Va. 89, 92, 372 S.E.2d 377, 379 (1988).
          A litigant may challenge the
          constitutionality of a law only as it
          applies to him or her. See Coleman v. City
          of Richmond, 5 Va. App. 459, 463, 364 S.E.2d
          239, 241-42 (1988).

Id. at 554, 525 S.E.2d at 29.    If the law "implicates no

constitutionally protected conduct, [then a court] should uphold

the challenge only if the enactment is impermissibly vague in

all of its applications.    A plaintiff who engages in some

conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others."

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 495 (1982).



                                - 4 -
     The narrow question in this case is whether Code

§ 18.2-49.1(A) is vague as applied to Ms. Dumont's conduct. 2

Woodfin, 236 Va. at 92, 372 S.E.2d at 379.     Code § 18.2-49.1(A)

states:

             Any person who knowingly, wrongfully and
             intentionally withholds a child from the
             child's custodial parent in a clear and
             significant violation of a court order
             respecting the custody or visitation of such
             child, provided such child is withheld
             outside of the Commonwealth, is guilty of a
             Class 6 felony.

(Emphasis added.)

     A two-pronged test is used to determine whether this

statute is unconstitutionally vague.     A penal statute is void

for vagueness if it (1) fails to give a person of ordinary

intelligence notice that his contemplated conduct is forbidden

by the statute, and (2) encourages selective prosecution.

Woodfin, 236 Va. at 92, 372 S.E.2d at 379.     As applied to Ms.

Dumont, Code § 18.2-49.1(A) survives the constitutional

challenge.

     The evidence in the limited record before us indicates that

Ms. Dumont was a party to the court order regulating custody and

visitation of D.D.    She twice sought, but failed, to have its

terms amended.    Approximately December of 2000, she filed a


     2
       Code § 18.2-49.1(B), which deals with intrastate
violations of a child custody or visitation court order,
contains the same "clear and significant violation" language.
Subsection (B) is not directly at issue in the case before us.


                                 - 5 -
complaint with social services in Florida against Mr. Dumont for

allegedly abusing D.D.   An investigation was conducted, and the

allegations were deemed unfounded.     Having proceeded through the

system in Florida and failing to gain custody of D.D., she once

again attempted to gain custody in Illinois.

     On June 14, 2001, D.D. arrived in Illinois to visit her

grandmother.   On June 27, 2001, Ms. Dumont filed for an

emergency protective order in the Circuit Court of Kane County,

Illinois, alleging that D.D. was being abused.    The circuit

court denied the emergency protective order and recognized the

continuing validity of the Virginia court order.    Upon the

denial, Ms. Dumont resorted to self-help, taking D.D. from her

grandmother's house in Illinois and absconding with her to

Wisconsin.   In violation of the court order, she subsequently

refused to tell Mr. Dumont where D.D. was located and refused to

return her to his custody.

     Being a party to the Virginia court order and being present

when the Illinois court recognized the validity of that order,

Ms. Dumont clearly knew her conduct was prohibited.    The trial

court below explicitly recognized that fact, stating in its

decision, "Clearly, the defendant's actions constitute a

violation of the November 27, 2000 order of the Chesterfield

Juvenile and Domestic Relations [District] Court."    Ms. Dumont

had more than "fair notice" that the conduct she intentionally

undertook violated the terms of the court order.    Because the

                               - 6 -
terms of the court order were themselves clear and certain,

there is no significant opportunity for those who were charged

with the enforcement of the particular court order to act in an

arbitrary manner.

     In holding that Ms. Dumont lacks standing to challenge the

constitutionality of Code § 18.2-49.1(A) as applied to her, we

need not address the facial constitutional challenge.

     The judgment of the trial court finding Code § 18.2-49.1(A)

unconstitutional is reversed and the case remanded to the trial

court for further proceedings consistent with this opinion.

                                        Reversed and remanded.




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