Virginia Lawyers Weekly VA Lawyers Weekly
The Court of Appeals upholds an order rejecting on res judicata grounds the latest in a father’s series of attempts to set aside a 2006 child support arrearage, as well as the trial court’s order of sanctions for abuse of the litigation process.
In 2006, the trial court ordered father to pay mother $62,096.06 in child support arrearage plus 6 percent interest. The father failed to make an appearance and the court entered a default judgment. In 2010, the father filed a motion in JDR court asserting the default judgment should be vacated because of an alleged violation of the service of process requirements of Va. Code § 16.1-278.18. The JDR court denied the motion, holding that it had continuing jurisdiction based on the original divorce decree to enforce the support order. He appealed to the circuit court, which upheld the JDR court and awarded $5,825 in attorney’s fees to the mother.
The father appealed to this court. We dismissed his appeal of the 2006 JDR court arrearage order as untimely. We rejected his appeal of the attorney fee award, on the ground that the underlying circuit court order declaring valid the 2006 JDR court arrearage order could no longer be challenged.
Despite our application of res judicata to the March 2011 order, the father filed another motion in 2012 in JDR court seeking to vacate the 2006 arrearage order. The JDR court held that res judicata barred further relitigation of the matter, and also ordered father to pay $4,500 in sanctions to compensate the mother for her legal fees. On de novo review, the circuit court likewise held that its prior March 2011 order was final and unaffected by the father’s untimely, and thus unsuccessful, appeal to our court. The circuit court also sanctioned the father and awarded $2,000 to the mother.
Framed properly, the only issue on appeal we must decide is whether a final judicial order on the merits – otherwise entitled to res judicata effect – loses that status merely because it declares (allegedly in error) an earlier order not to be void. The answer is, and necessarily must be, no.
Under the ordinary and usual rules of res judicata – which Virginia traditionally has applied – a final ruling by a court of competent jurisdiction ends all litigation over the validity or invalidity of a prior order. And that is just what happened in this case. In 2011, the father litigated the very issue he now asserts. He claimed that the 2006 JDR court arrearage order was void because the court lacked personal jurisdiction over him. The circuit court in March 2011 disagreed and declared on the merits that the 2006 JDR court arrearage order was valid. When that March 2011 declaration became final, the father appealed to our court. After finding his challenge to the 2006 JDR court arrearage order procedurally barred by an untimely notice of appeal, we expressly pointed out that his challenge to the award of attorney fees (while timely) was itself barred by res judicata. Then, as now, we explained that the March 2011 order finally and conclusively resolved the issue of personal jurisdiction arising out of the 2006 JDR court arrearage order. His later attempt to relitigate the unlitigable violated traditional res judicata law as well as our application of it to the very same dispute between the very same parties.
Finally, the circuit court did not abuse its discretion in awarding $2,000 in attorney’s fees to the mother. He does not advocate for any modifications to existing res judicata law. Instead, he claims the present state of the law is perfectly clear: A void order does not receive res judicata protection. That is true as far as it goes. But this established legal maxim does not mean – nor as far as we know, has any court interpreted it to mean – than an order issued by a court of competent jurisdiction rejecting a collateral attack on a prior, allegedly void, order, does not receive res judicata protection simply because the losing party disagrees with it.
Affirmed and remanded for an award of all attorney fees incurred by the mother on appeal and on remand.
Carrithers v. Harrah (Kelsey) No. 0601-13-1, Sept. 2, 2014; Newport News Cir.Ct. (Pugh) Blanche M. Garber for appellant; Jeffrey F. Riddle for appellee. VLW 014-7-261, 11 pp.
