Afaf Kanazeh Mann v. Michael K. Mann ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
AFAF KANAZEH (MANN)
MEMORANDUM OPINION *
v. Record No. 2647-00-4 PER CURIAM
JUNE 19, 2001
MICHAEL K. MANN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
(Afaf Kanazeh, pro se, on brief).
No brief for appellee.
Afaf Kanazeh (Mann) (wife) appeals the decision of the
circuit court denying her motion to modify a final order. The
circuit court held that because over twenty-one days had elapsed
since its entry of the final consent order, the court did not have
jurisdiction over the matter. On appeal, wife attempts to raise
several substantive claims: the trial court erred in (1) not
awarding her attorney fees, (2) finding that husband's
circumstances have changed, (3) improperly considering the factors
in Code §§ 20-107.1 and 20-107.3, and (4) in refusing to issue a
subpoena on husband's telephone service provider. Wife also
contends that this Court erred in its 1996 panel decision arising
from this divorce. See Mann v. Mann, Record No. 0333-95-4 (Va.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Ct. App. May 21, 1996). Because these issues are not properly
before this Court, we do not address them. Upon reviewing the
record and opening brief, we conclude that this appeal is without
merit. 1 Accordingly, we summarily affirm this appeal. See Rule
5A:27.
Background
After nearly ten years of marriage, the parties were
divorced in December 1994. Husband had been paying $3,000 per
month in spousal support to wife. On September 28, 2000, the
trial court entered a consent order, signed by both parties,
lowering husband's spousal support obligation to wife to $2,260
per month commencing November 1, 2000. Spousal support was
reduced because upon husband's retirement, wife began receiving
pension benefits of approximately $740 per month. Wife was
represented by counsel in connection with husband's "Motion to
Reduce Spousal Support." Both wife and her attorney signed the
consent order before it was entered by the court.
On October 4, 2000, wife filed a "Motion to Modify Final
Order." However, the hearing on the motion was not held on this
motion until October 27, 2000, more than twenty-one days after
the entry of the final order.
1
Appellee has filed a motion to dismiss. We deny that
motion.
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Analysis
I.
"A trial court's final judgment remains under the control
of the court for twenty-one days after its entry; after
twenty-one days, the trial court loses jurisdiction to suspend,
modify, set aside, or vacate its judgment." Weese v.
Commonwealth, 30 Va. App. 484, 492, 517 S.E.2d 740, 744 (1999)
(citing Rule 1:1). The trial court correctly denied wife's
motion, finding that it lacked jurisdiction over the case. The
record recites that the only time the issues raised on appeal
were presented to the trial court was in the post-trial motion
to modify the order. Because the trial court lacked
jurisdiction to consider wife's motion to modify after the
twenty-one day period expired, its ruling on the motion was a
nullity and review by this Court is barred on the issues flowing
from its denial of the motion. See Lewis v. Commonwealth, 18
Va. App. 5, 9, 441 S.E.2d 47, 49 (1994).
II.
Wife also attempts to raise several issues in this appeal
relating to our 1996 memorandum opinion affirming in part the
circuit court's decision in her divorce case. We denied wife's
request for a rehearing en banc. These issues are not properly
before us because we have already made a final determination on
the merits. "Res judicata precludes the re-litigation of a
claim or issue once a final determination on the merits has been
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reached by a court having proper jurisdiction over the matter."
Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669
(1994). Because the issues raised by wife are not properly
before this Court, we cannot entertain them. Accordingly, we
summarily affirm this appeal.
Affirmed.
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