                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia


VALERIE L. GREEN
                                             MEMORANDUM OPINION * BY
v.        Record No. 1724-97-3                JUDGE LARRY G. ELDER
                                                NOVEMBER 24, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                     B. A. Davis, III, Judge
          Wayne D. Inge for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     Valerie L. Green (appellant) appeals from an order finding

her in contempt of court pursuant to Code § 18.2-456(5) for

violating a prior court order prohibiting her from owning or

possessing companion animals.       On appeal, she contends that

(1) the underlying order was void because the trial court lacked

authority to prohibit her from owning companion animals and the

ends of justice exception to Rule 5A:18 permits this Court to set

aside her conviction even though she did not present this

argument to the trial court; and (2) the evidence was

insufficient to prove that her actual or constructive possession
                                1
of the cats was contumacious.       For the reasons that follow, we
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

     1
      We reject the Commonwealth's contention that the record is
insufficient to permit our review on appeal. The contempt order
entered on July 16, 1997 recites sufficient portions of the March
reject appellant's contentions and affirm her conviction.
                 VALIDITY OF MARCH 19, 1997 ORDER

                      TO SUPPORT FINDING OF CONTEMPT

        Appellant contends that, per this Court's November 26, 1997

order, the portion of the trial court's March 19, 1997 order

prohibiting her from owning or possessing companion animals was

void.       Although she did not raise this issue in the trial court,

she contends that the ends of justice exception to Rule 5A:18

permits her to challenge it on appeal.      We disagree.
        Assuming without deciding that the trial court lacked

authority to prohibit appellant from owning or possessing

companion animals, 2 its order was merely voidable, not void ab

initio, and appellant had an obligation to comply with that order

until this Court declared it erroneous.

        "A void judgment is one that has been procured by extrinsic

or collateral fraud or entered by a court that did not have

jurisdiction over the subject matter or the parties."       Rook v.

Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987) (citations

omitted).      By contrast, an order that is merely erroneous is

voidable only and retains its validity "unless set aside . . .
19, 1997 order to permit our review. Further, we may take
judicial notice of our own order, see Green v. Commonwealth, Rec.
No. 0964-97-3 (Va. Ct. App. Nov. 26, 1997), ruling on appellant's
petition for appeal from the March 19, 1997 order. See Haynes v.
Glenn, 197 Va. 746, 752 & n.1, 91 S.E.2d 433, 437 & n.1 (1956).
        2
      We do not address the correctness of this ruling. Its
correctness went unchallenged and has become the law of the case.
 See, e.g., Carter v. Commonwealth, 16 Va. App. 42, 44, 427
S.E.2d 736, 738 (1993).




                                   - 2 -
(1) by motion to the trial court filed within twenty-one days of

its entry, as outlined in Rule 1:1, (2) on direct appeal, Rook,

233 Va. at 95, 353 S.E.2d at 758, or (3) by bill of review.    Code

§ 8.01-623."   Pigg v. Commonwealth, 17 Va. App. 756, 760 n.5, 441

S.E.2d 216, 219 n.5 (1994) (en banc).

          "[W]here a court has jurisdiction over the

          person and the subject matter, no error in

          the exercise of such jurisdiction can make

          the judgment void, and . . . a judgment

          rendered by a court of competent jurisdiction

          is not void merely because there are

          irregularities or errors of law in connection

          therewith.   This is true even if there is a

          fundamental error of law appearing upon the

          face of the record.    Such a judgment is,

          under proper circumstances, voidable, but

          until avoided is regarded as valid."
Robertson v. Commonwealth, 181 Va. 520, 536-37, 25 S.E.2d 352,

359 (1943) (citation omitted).    Therefore, "a party refusing to

obey [such a judgment or order], however erroneously [it was]

made, is liable for contempt.    Such order, though erroneous, is

lawful within the meaning of the contempt statutes until it is

reversed by an appellate court."     Id. at 537, 25 S.E.2d at 359.

     In entering the order of March 19, 1997 in appellant's case,

the trial court had subject matter jurisdiction under Chapter



                                 - 3 -
27.4 of Title 3.1, which empowered it to punish and remedy the

failure of owners properly to care for their animals.    In

addition, the record reflects no challenge to the court's

jurisdiction over appellant's person either in the trial court or

in the previous appeal to this Court.   Therefore, appellant

waived any objections to personal jurisdiction.    Finally,

appellant has alleged no extrinsic or collateral fraud.

Therefore, because "[t]he trial court had jurisdiction of the

parties and of the subject matter, and the power to interpret the

statute, . . . its order and ruling, until reversed, were lawful

and should have been obeyed . . . ."    Robertson, 181 Va. at 538,

25 S.E.2d at 359.

     For these reasons, we reject appellant's contention that her

contempt conviction was invalid because the relevant portion of

the underlying order subsequently was set aside.   The ends of

justice exception to Rule 5A:18 does not negate the principle

that a voidable order remains valid until set aside.

             SUFFICIENCY OF EVIDENCE TO PROVE CONTEMPT

     Appellant's challenge to the sufficiency of the evidence is

twofold.   First, she contends that, because the portion of the

March 19, 1997 order requiring disposal of the animals referred

only to those animals "formerly seized," the Commonwealth had to

prove either that appellant acquired the cats at issue after

entry of the prior court order or that she failed to take

reasonable steps to divest herself of ownership or possession



                               - 4 -
after entry of that order.   She contends that it failed to do

either and that, in the absence of such evidence, application of

the circuit court's order prohibiting possession or ownership

amounts to a condemnation without compensation.   Second, she

contends that her behavior was not contumacious because she took

reasonable steps to comply with the spirit of the order by

registering the cats in the name of and having them cared for by

another.    Again, we disagree.
     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).      The

trial court's judgment will not be set aside unless it appears

that the judgment is plainly wrong or without supporting

evidence.    See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

     Code § 18.2-456(5) permits a court to punish summarily for

contempt for the "[d]isobedience or resistance of . . . [any]

person to any lawful process, judgment, decree or order of the

court."    The inability to obey a court order may be a complete

defense.    See Laing v. Commonwealth, 205 Va. 511, 514, 137 S.E.2d

896, 899 (1964).   However, because inability to comply is a

defense under Virginia law, an accused bears the burden of

presenting evidence of such an inability.    See, e.g., In re




                                  - 5 -
Roosth, 881 S.W.2d 300, 300-01 (Tex. 1994) (explaining that

"whether the ability to [comply with the court's order] is an

element of the offense of contempt, or is instead an affirmative

defense to that charge, is a question left to state law") (citing

Hicks v. Feiock, 485 U.S. 624, 629, 632-33, 641 n.13 (1988)).

     In appellant's case, the Commonwealth presented evidence of

the March 19, 1997 order prohibiting appellant from owning or

possessing companion animals.   It presented a videotape showing

appellant in actual possession of four companion animals as she

delivered them to Wanda Wyrick's house.   It also presented

extensive additional evidence that appellant owned the animals,

including a contract for care of the cats that listed appellant

as the animals' "true owner" and audiotaped messages in which

appellant admitted owning the cats and having had someone else

purchase the cats for appellant with appellant's money.    The

evidence, therefore, showed that appellant both owned and

possessed companion animals after entry of the court's order,

which established a prima facie case of criminal contempt.
     In argument, appellant's counsel contended that the

Commonwealth bore the burden of proving that appellant had not

made reasonable efforts to comply with the order.   However, in

the absence of some evidence of inability to comply within the

three months that had passed since entry of the order, the

evidence produced by the Commonwealth was sufficient to support

appellant's conviction.   See State ex rel. Mikkelsen v. Hill, 847




                                - 6 -
P.2d 402, 407 (Or. 1993) (en banc); Berman v. Berman, 238 S.E.2d

27, 28 (Ga. 1977).    As the trial court observed, appellant should

have brought the issue to the attention of the court at the

hearing of March 19, 1997 if she was concerned about the status

of animals still in her possession at that time.

     Appellant contends that, if she owned the animals which were

the subject of the contempt proceeding before entry of the March

19, 1997 order, the animals were not forfeited by the prior order

because they had not been seized.    As a result, she contends that

application of the court order prohibiting her ownership or

possession of such animals, in the absence of evidence that she

acquired them after March 19, 1997, amounts to "condemnation

without compensation" of animals she may already have owned.       We

reject this argument.
     The Condemnation Clause provides that "private property

[shall not] be taken for public use, without just compensation."

U.S. Const. amend. V; see Va. Const. art. I, § 11.      First, we

reject appellant's argument because the prohibition against her

owning or possessing companion animals was not a taking.    The

trial court's entry of the March 19, 1997 order prohibiting

appellant from owning or possessing companion animals was a valid

exercise of the police power as authorized by the legislature in

Code § 3.1-796.115.     See Fredericksburg Auto Auction, Inc. v.

Department of Motor Vehicles, 242 Va. 42, 48, 406 S.E.2d 23, 27

(1991).



                                 - 7 -
     Second, even if the trial court's prohibition was a taking,

we reject appellant's argument because the taking was not for

public use.     See U.S. Const. amend. V; Va. Const. art. I, § 11.

Virginia's statutory scheme provides very clearly that

proceedings pursuant to the code sections at issue are for the

protection of animals; they do not constitute a taking of animals

for public use.    In addition, Code §§ 3.1-796.96 and 3.1-796.115

provide that, if the animals are sold, the locality shall receive

only reimbursement for costs for the impoundment and disposition

of the animals and any funds remaining shall be paid to the

owner.   Therefore, even absent evidence of when appellant

acquired the four animals, the July 11, 1997 order of contempt

and forfeiture did not constitute a condemnation without

compensation.
     For these reasons, we affirm appellant's conviction.

                                                          Affirmed.




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