Landon T. A. Summers v. Marcia Lee Brown Summers ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
LANDON T. A. SUMMERS
MEMORANDUM OPINION *
v. Record No. 2759-98-4 PER CURIAM
JUNE 15, 1999
MARCIA LEE BROWN SUMMERS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Barnard F. Jennings, Judge Designate
(Dr. Landon Summers, pro se, on briefs).
(David E. Roop, Jr.; Condo & Masterman, P.C.,
on brief), for appellee.
Landon T.A. Summers (father) appeals the final decree of
divorce entered by the circuit court on October 27, 1998. By
decree entered December 18, 1997, the trial court resolved the
permanent custody issues between the parties. On the father's
appeal from that decree, this Court summarily affirmed. See
Summers v. Summers, No. 2669-97-4 (Va. Ct. App. Nov. 10, 1998).
The Supreme Court of Virginia dismissed the father's petition for
appeal of that ruling. See Summers v. Summers, No. 990067 (Va.
Feb. 17, 1999).
The father contends that the trial court violated his rights
to due process and equal protection by the following actions:
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1) entering a custody decree that was both
interlocutory and final;
2) entering a final decree of divorce in
violation of Rule 1:1, after having entered
a final decree as to custody and child
support without any reservation of
jurisdiction;
3) ruling that the October 24, 1997 support
order was a final decree and failing to make
written findings of fact;
4) effectively overturning the final decree
of divorce by entering a pendente lite
support order on December 18, 1998;
5) entering a divorce decree which conflicts
with the trial court's jurisdiction
conferred by Code § 20-103;
6) ruling that there is a statutory
difference between Code § 20-103 pendente
lite orders and interlocutory orders pending
a final order of divorce;
7) denying the father access to his
children's medical and school records
without good cause;
8) denying the father mediation;
9) entering the final decree of divorce
without hearing testimony and without a
properly filed commissioner's report; and
10) violating the father's civil rights so
that the father is entitled to costs and
attorney's fees from the trial court judges
pursuant to 42 U.S.C. § 1983 and
compensatory damages from other state agents
for denial of his federally protected
rights.
In her response, Marcia Lee Brown Summers (mother) seeks an award
of fees incurred in this appeal.
- 2 -
Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the judgment of the trial court. See Rule 5A:27.
Certification Motion
As a preliminary matter, we deny the husband's motion to
certify this case to the Supreme Court of Virginia pursuant to
Code § 17.1-409. This case raises no imperative public question
justifying a deviation from normal appellate practice. See Code
§ 17.1-409(B)(1).
Issue One
The father's appeal of the pendente lite support order was
dismissed by this Court for lack of appellate jurisdiction. See
Summers v. Summers, No. 2826-97-4 (Va. Ct. App. Jul. 6, 1998).
However, the father's appeal of the permanent custody decision
is now final. See Summers, No. 2669-97-4 (Nov. 10, 1998); and
Summers, No. 990067 (Feb. 17, 1999).
Res judicata "precludes the relitigation of a claim or issue
once a final determination on the merits has been reached by a
court of competent jurisdiction." Commonwealth ex rel. Gray v.
Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989).
While the father's present appeal seeks to recast the custody
issues raised in his prior appeal, he has heretofore exhausted his
right to appeal the custody decrees entered by the trial court on
October 17, 1997 and December 18, 1997. He may not continue to
- 3 -
seek appellate review of those orders. Therefore, we hold that
the father is barred by res judicata from pursuing issue one.
Issue Two
In the father's prior appeal, this Court held that the trial
court did not err in deciding the issue of custody by its order
entered December 18, 1997. See Summers, No. 2669-97-4 (Nov. 10,
1998). The decision concerning the grounds for divorce and
equitable distribution was unaffected by that ruling and remained
pending before the trial court. The father misconstrues Rule 1:1
when he argues that the trial court lost jurisdiction in Chancery
No. 147468 after entering the interlocutory custody decree. Rule
1:1 provides that "[a]ll final judgments, orders, and decrees,
irrespective of terms of court, shall remain under the control of
the trial court and subject to be modified, vacated, or suspended
for twenty-one days after the date of entry, and no longer." This
rule prohibited modification of the entered custody order more
than twenty-one days after its entry; it did not deny the trial
court jurisdiction over the issues of the case still pending and
unaffected by the custody order. Therefore, the father's argument
on this question is without merit.
Issue Three
The father previously appealed the trial court's pendente
lite child support order, entered October 24, 1997. As this Court
noted in its order dismissing the father's appeal, orders of
support pendente lite are not final, appealable orders. See
- 4 -
Summers, No. 2826-97-4 (Jul. 6, 1998). That ruling is now final,
and the father will not be heard to argue in this appeal that the
previous ruling was erroneous.
The father now contends that he is entitled to the return of
support monies paid pursuant to an order he believes to be
erroneous and in violation of his rights to due process and equal
protection. The record supports the father's contention that the
trial court erred when it indicated in the divorce decree that
"the matters of . . . child support [had] been adjudicated in
separate, prior decrees of this court." See generally Duke v.
Duke, 239 Va. 501, 391 S.E.2d 77 (1990). The trial court
previously had entered only a pendente lite child support order.
No other child support order had been entered at that time. In
entering the divorce decree, the trial court did not expressly
adopt its previous pendente lite support order or enter any other
support order.
Notwithstanding that misstatement by the trial court, the
father is not entitled to the relief he seeks. The father filed
his notice of appeal from the October 27, 1998 divorce decree
order on November 23, 1998. By order entered over the father's
objection November 30, 1998, this Court granted the trial court
leave to entertain child support proceedings. The parties then
obtained entry of a consent decree dated December 18, 1998, fixing
child support. Neither party objected to this consent decree.
The consent decree set the amount of child support "until there is
- 5 -
a final hearing on child support at the equitable distribution
hearing (or a material change in circumstances determined by the
court)." Thus, we need not determine whether the father was
obligated to continue paying pendente lite support following entry
of the final decree of divorce. That issue was mooted by entry of
the consent decree. The father preserved no objection to the
consent decree.
We reject the father's contention that he is entitled to the
return of support money paid. A trial court has no statutory or
inherent authority to order restitution of previously paid child
support. See Wilson v. Wilson, 25 Va. App. 752, 760, 492 S.E.2d
495, 499 (1997). By endorsing the consent order which fixed the
amount of support to be paid until the "final hearing on child
support at the equitable distribution hearing," the father agreed
to that date for setting an award.
Issue Four
The father's contentions that this Court and the trial court
acted in excess of statutory jurisdiction and that this Court
initiated inappropriate ex parte communication with the mother are
without merit. As noted, the father's appeal of the pendente lite
support order was dismissed as untimely. This Court again
acquired jurisdiction when the father subsequently appealed the
decree of divorce. Upon the mother's motion, this Court allowed
the trial court to proceed with matters of child support. That
action was not "out-of-time jurisdiction" or "ultra-legislation
- 6 -
jurisdiction." Once this Court properly acquired jurisdiction, it
had the authority to grant the trial court leave to proceed while
the appeal was pending. See Greene v. Greene, 223 Va. 210, 212,
288 S.E.2d 447, 448 (1982). Furthermore, the parties entered into
a consent decree that fixed the amount of support and fixed the
date for entry of an order of permanent support. The issue of the
trial court's authority to enter a permanent support award became
moot upon entry of the parties' consent decree.
The father also complains that this Court participated in ex
parte communication with the mother's counsel. In support
thereof, he cites the letter from the wife's counsel forwarding
copies of several orders in this matter, "[a]s requested," to this
Court.
The father does not allege, and the record does not indicate,
that the wife's counsel communicated with any judges of this Court
or that the Clerk's office engaged in inappropriate ex parte
substantive discussions with the wife's counsel. The bar against
ex parte communication "arises only when 'an ex parte
communication relates to some aspect of the [trial].'" Ellis v.
Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481 (1984)
(holding that the bar on ex parte communications does not apply to
administrative issues).
Issue Five
The father's contentions that the trial court exceeded its
statutory authority when it entered its December 18, 1997 custody
- 7 -
order and that he was denied a final hearing on custody issues are
without merit. As noted under Issue One, issues arising from the
previously appealed custody order are now barred by res
judicata.
Even if we view the father's arguments as an attempt to raise
issues not barred, we find them to be without merit. Code
§ 20-103 provides, in pertinent part, as follows:
In suits for divorce, . . . the court having
jurisdiction of the matter may, at any time
pending a suit pursuant to this chapter, in
the discretion of such court, make any order
that may be proper . . . (iv) to provide for
the custody and maintenance of the minor
children of the parties, including an order
that either party provide health care
coverage for the children, (v) to provide
support, calculated in accordance with
§ 20-108.2, for any child of the parties to
whom a duty of support is owed and to
continue to support any child over the age
of eighteen who meets the requirements set
forth in subsection C of § 20-124.2 . . . .
Nothing in Code § 20-103 barred the trial court from entering
its December 18, 1997 order finally resolving the issue of
custody. On the contrary, the trial court's resolution of
custody matters before deciding the remaining issues comports
with the requirements of Code § 20-124.2, which provides, in
pertinent part that
[i]n any case in which custody or visitation
of minor children is at issue, whether in a
circuit or district court, the court shall
provide prompt adjudication, upon due
consideration of all the facts, of custody
and visitation arrangements, including
support and maintenance for the children,
- 8 -
prior to other considerations arising in the
matter.
Code § 20-124.2(A). The father appealed the custody order,
which we accepted as an appealable interlocutory order because
it resolved the custody issue. Because the record demonstrates
that the parties had ample opportunity to address the issue of
custody, the father's contention that he was denied a final
custody hearing is without merit.
Issue Six
The December 18, 1997 custody order was an interlocutory
order which adjudicated the principles of the cause as to
custody and was separately appealable. Review of that order on
this appeal is barred by res judicata.
The father alleged that this Court "knowingly misquoted"
Erikson v. Erikson, 19 Va. App. 389, 451 S.E.2d 711 (1994), in
the opinion issued in his prior appeal. See Summers, No.
2669-97-4 (Nov. 10, 1998). We disagree with the father's
interpretation of Erikson. In Erikson, the trial court's ruling
that the parties were validly married was found to be an
unappealable interlocutory order.
Although the factual finding and legal
holding that the parties are validly married
is an essential element of the complainant's
cause of action, that ruling is not a legal
determination of "the principles" that are
necessary to adjudicate the cause, and the
ruling does not "respond to the chief object
of the suit which was to secure a divorce."
- 9 -
Id. at 391, 451 S.E.2d at 713 (citations omitted). Contrary to
the father's contention, Erikson does not stand for the
proposition that, in any case in which a divorce is sought,
there can be no appealable interlocutory order which does not
grant the divorce. Such an interpretation renders meaningless
the limited statutory grant of jurisdiction to this Court to
hear certain interlocutory appeals. See Code § 17.1-405(4).
See generally Wells v. Wells, 29 Va. App. 82, 509 S.E.2d 549(1999) (order denying objection to jurisdiction was not
appealable interlocutory order); Nenninger v. Nenninger, 19 Va.
App. 696, 454 S.E.2d 45 (1995) (order other than final decree of
divorce bifurcating divorce proceedings from equitable
distribution proceedings was not appealable interlocutory
decree); Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d
229, 229 (1991) (order invalidating antenuptial agreement was
not appealable interlocutory order). Under appropriate
circumstances, such as we have previously held existed in this
case, parties may appeal interlocutory orders adjudicating
principles of a cause before entry of the final decree. See
Southwest Virginia Hospitals, Inc., v. Lipps, 193 Va. 191, 193,
68 S.E.2d 82, 84 (1951).
Moreover, as the party who appealed the custody order at
the time it was issued rather than waiting until the entire
matter was concluded, father may not now be heard to complain
about the procedural and jurisdictional results of his appeal.
- 10 -
"'He cannot approbate and reprobate--invite error and then take
advantage of his own wrong.'" Steinberg v. Steinberg, 21 Va.
App. 42, 50, 461 S.E.2d 421, 424 (1995) (quoting Sullivan v.
Commonwealth, 157 Va. 867, 878, 161 S.E. 297, 300 (1931)).
Issue Seven
The father sought to subpoena certain records by motion filed
with the trial court during the pendency of his previous appeal of
the custody order. The trial court granted mother's motion to
quash the subpoenas on the grounds that "there is no new motion
before the court and there was a final custody decree dated
December 18, 1997." At the time father sought the subpoenas, the
trial court lacked subject matter jurisdiction over the case,
which was then on appeal. "The orderly administration of justice
demands that when an appellate court acquires jurisdiction over
the parties involved in litigation and the subject matter of their
controversy, the jurisdiction of the trial court from which the
appeal was taken must cease." Greene, 223 Va. at 212, 288 S.E.2d
at 448. See also Frazer v. Frazer, 23 Va. App. 358, 379-80, 477
S.E.2d 290, 300 (1996). We find no error in the trial court's
decision to quash the subpoenas.
Issue Eight
In support of his contention that the trial court denied him
due process and equal protection by denying his request for
mediation, the father cites two orders of the trial court denying
mediation for lack of jurisdiction. Both orders denied mediation
- 11 -
because the trial court lacked jurisdiction during the pendency of
the father's previous appeal of the custody order. Although the
father has not referred us to another order denying his request
for mediation after the trial court was authorized to proceed, we
nonetheless considered the merits of his contention.
No statute requires mediation. Under Code § 20-124.4, trial
courts have discretionary authority to refer parties in "any
appropriate case" to evaluation for possible mediation services.
We find no abuse of discretion in the trial court's refusal to
forward this case for mediation evaluation. The father's
allegations that he was denied due process and equal protection of
the law because his request for mediation was denied are without
merit.
Issue Nine
The father's contention that the trial court granted the
divorce without corroborated testimony and without reviewing the
commissioner's report is without merit. The decree of divorce
specifically states that "[t]his Cause was heard upon the Bill of
Complaint; the Defendant's Answer; the hearing before the
Commissioner in Chancery; the Report of the Commissioner." "A
court speaks only through its orders." Cunningham v. Smith, 205
Va. 205, 208, 135 S.E.2d 770, 773 (1964). See Hill v. Hill, 227
Va. 569, 578, 318 S.E.2d 292, 297 (1984). We "'presume that the
order, as the final pronouncement on the subject, rather than a
transcript that may be flawed by omissions, accurately reflects
- 12 -
what transpired.'" Kern v. Commonwealth, 2 Va. App. 84, 88, 341
S.E.2d 397, 400 (1986) (citation omitted).
Issue Ten
The father has failed to demonstrate that the issues raised
in this appeal have merit. Therefore, his assertion that the
trial court and "each of the judges in this matter" have violated
his civil rights under the Fourteenth Amendment and are liable to
him for damages under 42 U.S.C. § 1983 is unfounded and without
merit.
Appellate Fees
Based upon the extensive issues raised by the father on
appeal, all of which lack merit, we find that the mother is
entitled to recover reasonable attorney's fees and costs incurred
by her in defending this appeal. We remand this matter to the
trial court for a determination of those costs and fees. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).
Accordingly, the judgment of the circuit court is summarily
affirmed, and the matter is remanded to the trial court for a
determination of mother's costs and fees incurred on appeal.
Affirmed and remanded.
- 13 -