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SIMPSON v. SIMPSON




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


SIMPSON

v.

SIMPSON


COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Overton, Coleman and Willis

Record No. 0924-03-1

ROSCOE L. SIMPSON

v.

CAROL P. SIMPSON

 

MEMORANDUM OPINION[1]
PER CURIAM

NOVEMBER 25, 2003

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Louis R. Lerner, Judge

(Roscoe L. Simpson, pro se, on brief).

No brief for appellee.

Roscoe L. Simpson (husband) appeals a final order of the trial
court denying his motion

for relief and rehearing and to suspend court orders. On appeal,
husband raises six issues

concerning his military pension, the civil pension of Carol P.
Simpson (wife), and the

distribution of property. Wife has filed a motion to dismiss the
appeal and a request for

attorney’s fees. 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. See Rule

5A:27. We also deny wife’s motion to dismiss and remand the
matter to the trial court for a

determination of her attorney’s fees.

The record shows that on October 30, 2001, husband filed, pro
se
, a "Motion for Relief

and to Suspend Court Orders." The trial court denied
appellant’s motion by order entered on

November 16, 2001. On September 5, 2002, husband, by counsel,
filed a motion entitled

"Motion for Relief and Rehearing and to Suspend Court
Orders," which raised the same issues as

the October 30, 2001 pro se motion. At a hearing held on
February 14, 2003, husband’s counsel

moved to withdraw from the case, and he represented to the trial
court that he had just learned

that the trial court had decided "those issues at least
twice" in the past. By order entered on

March 16, 2003, the trial court denied husband’s motion on the
ground that the matters raised in

the motion had been previously adjudicated. Husband appeals the
trial court’s decision to this

Court.

The issues raised in appellant’s September 5, 2002 motion had
been previously litigated

in the trial court, and they were addressed in the trial court’s
order entered on November 16,

2001, which husband did not appeal to this Court. "Res
judicata
precludes the re-litigation of a

claim or issue once a final determination on the merits has been
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). Therefore, the trial court did not err in denying
husband’s September 5, 2002 motion on

this ground. Furthermore, the March 16, 2003 trial court order,
which appellant appeals in this

case, does not substantively address husband’s questions
presented on appeal. Accordingly, we

summarily affirm the trial court’s decision.

Wife’s motion to dismiss the appeal is denied. Upon
consideration of the entire record in

this case, we hold that wife is entitled to a reasonable amount
of attorney’s fees and costs, and

we remand for the trial court to set a reasonable award of costs
and counsel fees incurred in this

appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695,
479 S.E.2d 98, 100 (1996).

Affirmed and remanded.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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