Christopher Andre S. W. Quincer v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED
CHRISTOPHER ANDRE S. W. QUINCER
MEMORANDUM OPINION *
v. Record No. 0693-12-4 PER CURIAM
OCTOBER 23, 2012
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. TASHMESIA N. QUINCER
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Jay T. Swett, Judge Designate
(Wayne Hartke; Hartke Law Offices, on brief), for appellant.
(Kenneth T. Cuccinelli, II, Attorney General; Craig M. Burshem,
Senior Assistant Attorney General; Beth J. Edwards, Regional Senior
Assistant Attorney General; Nancy J. Crawford, Regional Senior
Assistant Attorney General; Kathryn F. Fenske, Assistant Attorney
General, on brief), for appellee.
Christopher S.W. Andre Quincer (father) appeals an order denying father’s motions and
granting the Division of Child Support Enforcement’s (DCSE) motions to dismiss. Father argues
that the trial court erred by (1) not ruling that DCSE lacked jurisdiction over father to enforce any
duty of child support against the father after DCSE issued an order dated December 10, 2002,
reciting zero due monthly; (2) failing to provide father with a statutorily required three-year review
of a child support order, regardless of whether there has been a change of circumstances, pursuant to
Code § 63.2-1903(E); (3) failing to rule that DCSE “lost its status as ‘Ex Rel.’ the Colorado mother
after the change of custody in favor of the Father on December 10, 2002 . . . and further Va. DCSE
lost its status under the Interstate Family Support Act” after Colorado asked Virginia to close its
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
case on May 8, 2006; (4) failing to rule that a “unilateral, and self-described ‘re-opening’ of the case
by Va. DCSE after the case had been requested to be closed by the Initiating State, Colorado, was
without legal basis or authority under the Interstate Act”; and (5) failing to rule that there was
extrinsic or intrinsic fraud by DCSE’s attorney at the September 4, 2009 hearing, when DCSE’s
attorney referred to an “Advance Notice of Lien,” which did not exist, and said misrepresentation
affected the trial court “improperly.” Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. 1 Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
BACKGROUND
In July 2002, an administrative support order was entered against the father. Father
appealed to the juvenile and domestic relations district court (JDR court), which, on July 2, 2003,
dismissed the appeal because it was not timely filed.
Subsequent to the entry of the administrative support order, specifically on December 6,
2002, the court entered an order awarding father physical custody of his child. Mother filed a
motion to reconsider, and the December 6, 2002 order was suspended on December 27, 2002.
On April 27, 2003, the trial court awarded sole custody to the mother.
On December 10, 2002, the DCSE issued an “Order/Notice to Withhold Income for Child
Support,” which required father’s employer to deduct $0 for child support and $166.75 per
month for past due child support.
1
On July 16, 2012, father filed an opening brief which did not comply with the rules of
this Court. Pursuant to an order dated July 26, 2012, the Court instructed father to file a
replacement brief by August 5, 2012, which father did. Father also filed a motion for extension
of time to file his first replacement brief. Since he timely filed the replacement brief, his request
for an extension of time is denied as moot. DCSE filed a motion to dismiss, to which father
responded in opposition. DCSE’s motion to dismiss is denied. Father also filed a “Motion for
Permission to File Second Replacement Brief of Appellant.” Father’s motion to file a second
replacement brief is denied.
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On April 3, 2009, the JDR court held a hearing on (1) DCSE’s motion to enforce the
administrative order, (2) a show cause pursuant to the administrative order, and (3) father’s
appeal of an administrative ruling regarding a garnishment. The JDR court’s summary of
proceedings stated, “Dismissed – see warrant.” The ruling was appealed, and a hearing was held
in the circuit court on July 6, 2009. The circuit court entered an order on May 4, 2010 with its
rulings regarding the appeal of the April 3, 2009 order. The circuit court found, “Upon hearing
the evidence and argument presented by counsel, this Court finds that, while father disobeyed the
Administrative Support Order, his failure to pay was a result of involuntary and non-willful acts
leading to his inability to pay the support previously ordered . . . .” The court held that father
was not guilty of contempt and dismissed the rule to show cause. Neither party appealed this
decision.
Meanwhile, on September 8, 2009, the JDR court clarified the ruling from April 3, 2009 2
and entered an order which denied the motion to enforce the order, dismissed the rule to show
cause, and denied the appeal of the administrative ruling. The JDR court’s ruling was appealed
to the circuit court, which dismissed the appeal on November 17, 2009.
In 2011, father filed a “Motion to Reopen the case to protect the record” and a motion to
dismiss the September 8, 2009 order because it was obtained by fraud. Father questioned the
validity of the April 3, 2009 and the September 8, 2009 orders. DCSE filed motions to dismiss.
On May 6, 2011, the JDR court entered an order granting DCSE’s motions to dismiss and
denying father’s motions “to find . . . [the] September 8th, 2009 final order void and to rewrite
2
The record is not clear why the DCSE did not challenge the jurisdiction of the JDR
court to clarify the April 3, 2009 order when it already had been appealed to the circuit court. In
its January 13, 2012 memorandum opinion, the trial court found that the JDR court “had no
authority in September of 2009 to hear any matter involving the show cause proceeding even if it
was limited to a clarification of what the Juvenile and Domestic Relations Court may have done
earlier on April 3, 2009.”
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. . . [the] April 3rd, 2009 order, and to reopen the case to protect the record.” Father appealed this
decision to the circuit court.
In the circuit court, father argued that “all of the court actions were void and [the courts
were] without any authority whatsoever to act” because the courts did not have subject matter or
personal jurisdiction. On January 13, 2012, the circuit court issued a memorandum opinion
denying father’s motions. On March 16, 2012, the circuit court entered a final order, which
incorporated the memorandum opinion of January 13, 2012. The trial court held, “The circuit
court’s order of November 17, 2009 was a disposition of the case on the merits addressing
whatever issues were before the lower court that resulted in the appealed September 8, 2009
order. Therefore, there is no reason to reopen the case to protect the record as father suggests.”
Furthermore, the trial court acknowledged that the circuit court heard an appeal of the April 3,
2009 order and entered an order on May 4, 2010, which was not appealed. Lastly, the trial court
found that there was “no basis” for father’s argument that Virginia courts did not have
jurisdiction to enforce the administrative support order and that “[a]ll courts which heard the
disputes between the father and the Division [DCSE] had jurisdiction to entertain those actions.”
The trial court denied father’s motions and granted DCSE’s motions to dismiss. This appeal
followed.
ANALYSIS
Jurisdiction – Assignment of Error 1
Father argues that the trial court did not have jurisdiction to issue the April 3, 2009 and
September 8, 2009 orders. He contends the December 10, 2002 “Order/Notice to Withhold
Income for Child Support” superseded the administrative support order previously issued. Since
the “Order/Notice to Withhold Income for Child Support” recited that his child support
obligation was zero, he asserts the courts did not have jurisdiction to enforce the prior
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administrative support order and issue rulings on that prior administrative support order after the
December 2002 order.
The DCSE argued that the December 10, 2002 “Order/Notice to Withhold Income for
Child Support” did not supersede the prior administrative support order because a wage
withholding notice cannot overturn an administrative support order.
Father had an opportunity to be heard prior to the entry of the April 3, 2009 and
September 8, 2009 orders, and he had the right to appeal them. Both orders were appealed, and
the circuit court heard de novo arguments. The circuit court entered orders regarding the appeal
of these JDR orders on November 17, 2009 and May 4, 2010. Father did not appeal those
decisions.
Generally, a judgment or decree rendered by a court having
jurisdiction over the parties and subject matter must be challenged
by direct appeal and cannot be attacked collaterally. Eagle, Star &
British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E.
314, 319 (1927); cf. Garritty v. Virginia Dep’t of Soc. Servs. ex
rel. Sinift, 11 Va. App. 39, 41-42, 396 S.E.2d 150, 151 (1990). A
party may, however, assail a void judgment at any time, by direct
or collateral attack. Beck v. Semones’ Adm’r, 145 Va. 429, 441,
134 S.E. 677, 680 (1926); Garritty, 11 Va. App. at 42, 396 S.E.2d
at 151. Although a judgment obtained by “extrinsic fraud” is void
and, therefore, subject to direct or collateral attack, a judgment
obtained by “intrinsic fraud” is merely voidable and can be
challenged only by direct appeal or by a direct attack in an
independent proceeding. Jones v. Willard, 224 Va. 602, 607, 299
S.E.2d 504, 508 (1983); Holmes v. Holmes, 8 Va. App. 457,
458-59, 382 S.E.2d 27, 28 (1989).
Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487, 490 (1993).
As stated by the trial court, “The father has had ample opportunity to address these
matters, including by direct appeal to the circuit court or to higher appellate courts whenever
those courts ruled against the father.” There is no evidence that the judgments were void or
voidable. Therefore, he cannot collaterally attack the prior court orders.
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The trial court did not err in its ruling that the courts which previously heard the disputes
between father and DCSE had jurisdiction over the matter.
No ruling – Assignments of Error 2, 3, and 4
Father argues that the trial court “erred by failing to provide” father with a three-year
review of the child support order, and “erred by failing to rule” on his arguments that DCSE lost
its status as “ex rel.” the mother, and “erred in failing to rule” that DCSE “re-open[ed]” the case
after Colorado requested it be closed. The trial court did not rule on any of these issues. Since
father “failed to obtain a ruling from the court [and] . . . [b]ecause he was denied nothing by the
trial court, there is no ruling for us to review.” Fisher v. Commonwealth, 16 Va. App. 447, 454,
431 S.E.2d 886, 890 (1993) (citations omitted).
Fraud – Assignment of Error 5
Father argues that the trial court erred by failing to rule that there was extrinsic fraud or
intrinsic fraud committed by DCSE when it told the court in September 2009 that the February
24, 2009 administrative order was an “Advance Notice of Lien.” After hearing evidence and
argument in this matter, the trial court held, “There is no evidence that any fraud was committed
by anyone.”
Father did not comply with Rule 5A:20(e) because his opening brief does not contain any
principles of law, or citation to legal authorities, or the record to fully develop his arguments
regarding alleged fraud.
Father has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). We find that father’s failure to comply with Rule 5A:20(e) is
significant, so we will not consider the fifth assignment of error. See Fadness v. Fadness, 52
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Va. App. 833, 851, 667 S.E.2d 857, 866 (2008) (“If the parties believed that the circuit court
erred, it was their duty to present that error to us with legal authority to support their
contention.”); Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008).
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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