John Taylor Brown v. Virginia Sue Anderson Brown

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JOHN TAYLOR BROWN
MEMORANDUM OPINION *
v. Record No. 1978-95-4 PER CURIAM
APRIL 9, 1996
VIRGINIA SUE ANDERSON BROWN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
(Brian M. McCormack; Dunn, McCormack,
MacPherson & Orfe, on briefs), for appellant.
(Beverly J. Bach; Marcia F. Ruff; Shoun &
Bach, P.C. on brief), for appellee.
John T. Brown (husband) appeals the decision of the circuit
court denying his motion to reduce spousal support payments to
Virginia Sue A. Brown (wife). Husband frames his issue on appeal
as follows: "If a motion is filed requesting relief based on
events which have not yet occurred, does the dismissal of the
premature motion have a res judicata effect?" Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
Under familiar principles we view [the]
evidence and all reasonable inferences in the
light most favorable to the prevailing party
below. Where, as here, the court hears the
evidence ore tenus, its finding is entitled
to great weight and will not be disturbed on
appeal unless plainly wrong or without
evidence to support it.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986).
Husband filed a motion to reduce spousal support, based upon
his retirement. The court held a hearing on husband's motion.
Husband admitted that he voluntarily retired and that he had
additional income from other assets. Husband presented no
evidence of the circumstances existing prior to his retirement.
The trial court granted wife's motion to strike, and husband did
not appeal that order.
Husband subsequently filed an amended motion, raising the
identical issue. The trial court granted wife's motion to deny
husband's amended motion on the grounds of res judicata, stating
that
the amended motion does not state any new
grounds that were not presented to the Court
on February 9. We have the identity of
parties; the identity of issues. And there
was a hearing on the merits on this matter,
albeit the motion was resolved against the
[husband], where the motion to strike was
granted.
The doctrine of res judicata prevents husband from
relitigating the same issue necessarily tried and finally
determined by the trial court in its ruling on his first motion
to reduce spousal support. See Faison v. Hudson, 243 Va. 413,
418-19, 417 S.E.2d 302, 304-05 (1992); Hiner v. Hadeed, 15 Va.
App. 575, 580, 425 S.E.2d 811, 814 (1993). Husband raised no new
issue in his amended motion. Husband's characterization of the
motion as "premature" does not accurately reflect the fact that
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husband's evidence at the February 9, 1995 hearing was based upon
the fact of his actual retirement.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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