The circuit court correctly dismissed appellant’s complaint that alleged appellee breached an agreement to pay child support. The agreement was never incorporated into the circuit court’s final divorce order and, based on appellant’s representation that the JDR court had addressed custody, visitation and support matters, the circuit court transferred those matters back to the JDR court.
The parties, who have four children, separated in May 2015. In January 2016, they entered into an agreement that appellee would pay $540 in child support to appellant, and the agreement would be given to the court for ratification.
Appellant filed a pro se divorce complaint in January 2018. “The complaint for divorce stated that the custody, visitation, and child support matters had ‘been addressed in an Order dated 2-3-16’ from the JDR court and included case numbers from the JDR court. Appellant asked that ‘the provisions of custody, visitation and support contained in the Order dated 2-3-16 from the Juvenile and Domestic Relations Court for Rockingham County … [b]e affirmed and jurisdiction over these matters shall remain with that Court.’ The complaint did not mention the agreement.”
The circuit court entered a final divorce order in May 2018 and transferred all custody, visitation and support matters to the JDR court.
In January 2019, appellant filed a circuit court complaint alleging appellee breached the child support agreement. She admitted the agreement was never submitted to the court, and that she had filled an October 2018 petition for child support in the JDR court. Appellee, acting pro se, answered and filed a motion to dismiss. The court heard arguments and ultimately dismissed the complaint.
“We find that appellant has taken inconsistent positions in the proceedings and that judicial estoppel applies to this matter. ‘Judicial estoppel is an equitable doctrine designed to prevent litigants from playing fast and loose with the courts … or blowing hot and cold depending on perceived self-interest.’ …
“The ‘fundamental’ requirement for its application is that ‘the party sought to be estopped must be seeking to adopt a position [of fact] that is inconsistent with a stance taken in a prior litigation.’ … Additionally, if the inconsistent positions involve different proceedings, the parties to the proceedings must be the same, and the inconsistent position must have been relied upon by the court or prior court in rendering its decision.’ …
“Here, the parties were the same in the divorce action and the breach of contract action. When the circuit court entered the final decree of divorce, it relied on appellant’s representation that the JDR court had entered orders regarding custody, visitation, and child support. The circuit court found that the JDR court was ‘the more appropriate forum having jurisdiction’ and referred the custody, visitation, and support matters to the JDR court.
“Appellant did not object to the entry of the final decree of divorce or the remand to the JDR court. Eight months later, appellant filed a breach of contract action with the circuit court and argued that appellee owed her child support under the agreement. In the breach of contract action, the circuit court found that appellant made false assertions during the divorce action and noted that the parties did ‘not dispute’ that there was no JDR court order. Appellant argued to the circuit court in the breach of contract action that it could not transfer the support matters to the JDR court because there was no support order to transfer.
“Appellant is estopped from raising these arguments because they are inconsistent with her position in the divorce proceedings.”
Fritz v. Fritz, Record No. 1624-19-3, Feb. 4, 2020. CAV (per curiam) from Rockingham Cir. Ct. (Albertson). Sherwin John Jacobs for appellant, no brief for appellee. VLW 020-7-021, 6 pp. Unpublished.