Landon T. A. Summers v. Marcia L. B. Summers

• Court: Court of Appeals of Virginia
• Decided: August 3, 1999
• Docket: 1968984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff

LANDON T. A. SUMMERS MEMORANDUM OPINION * v. Record No. 1968-98-4 PER CURIAM AUGUST 3, 1999 MARCIA L. B. SUMMERS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David T. Stitt, Judge

(Dr. Landon Summers, pro se, on brief).

(David E. Roop, Jr.; Condo & Masterman, on brief), for appellee.

Landon T.A. Summers (father) appeals the July 31, 1998

decision of the circuit court denying his motion to mediate.

Father contends that the trial court erred by (1) asking counsel

for Marcia L.B. Summers (mother) to submit a written statement of

facts out of time and without notice to father; (2) demonstrating

judicial malfeasance and bias by refusing to hear father's motion

to strike; (3) sanctioning father for proceeding despite the trial

court's purported lack of jurisdiction; (4) failing to find

mediation was required by the local rules; (5) sanctioning father

for seeking the required mediation; (6) refusing to follow any and

all required procedures as to mediation; (7) ruling that a final

order had been entered and that the trial court lacked

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. jurisdiction; (8) finding that the trial court lacked jurisdiction

when there were multiple final orders entered; (9) denying father

due process of law by issuing multiple final orders; (10) entering

multiple final orders with the purported approval of the Court of

Appeals; (11) entering multiple final orders without a clear,

explicit reservation of jurisdiction; and (12) sustaining mother's

objections to father's written statement of facts when that

written statement of facts was presented out of time and without

notice to father. Mother argues the decision should be affirmed

and seeks an award of appellate 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.

This is father's fourth appeal arising from the circuit

court's decisions on custody, visitation, and support. In an

earlier appeal, father sought review of the trial court's

interlocutory decree awarding permanent custody to appellee.

This Court summarily affirmed that decree. See Summers v.

Summers, No. 2669-97-4 (Va. Ct. App. Nov. 10, 1998). The Supreme

Court of Virginia dismissed father's petition for appeal. See

Summers v. Summers, No. 990067 (Va. Feb. 17, 1999). Father also

filed an appeal from the trial court's final decree of divorce

entered on October 27, 1998. This Court summarily affirmed that

decision. See Summers v. Summers, No. 2759-98-4 (Va. Ct. App.

Jun. 15, 1999). Father's appeal of the pendente lite support

- 2 - order was dismissed for lack of appellate jurisdiction. See

Summers v. Summers, No. 2826-97-4 (Va. Ct. App. July 6, 1998).

In this appeal of the trial court's denial of the motion

for mediation, father may not raise again any issues previously

decided by this Court in his previous appeals. "A valid,

personal judgment on the merits in favor of defendant bars

relitigation of the same cause of action, or any part thereof

which could have been litigated between the same parties and

their privies." Bates v. Devers, 214 Va. 667, 670-71, 202

S.E.2d 917, 920-21 (1974) (footnote and emphasis omitted).

Accordingly, because we previously decided issues 8 through 11

in father's earlier appeals, we do not address those issues in

this appeal.

Written Statement of Facts

Father raises several challenges to the trial court's

approval of the written statement of facts. Those claims lack

merit.

The record indicates that the order denying father's motion

for mediation was entered on July 31, 1998. Father filed his

proposed written statement of facts on September 24, 1998.

Within fifteen days of father's filing, on October 8, 1998,

mother's counsel filed objections to father's written statement

of facts and an alternative written statement of facts, with

service upon father. Father filed his objections to mother's

proposed written statement of facts on October 13, 1998. On

- 3 - October 19, 1998, the trial court entered its written statement

of facts, which in substantial part adopted mother's proposed

written statement of facts.

Rule 5A:8 provides, in pertinent part, as follows:

(d) Objections. - Any party may object to a transcript or written statement on the ground that it is erroneous or incomplete. Notice of such objection specifying the errors alleged or deficiencies asserted shall be filed with the clerk of the trial court . . . within 15 days after the date the notice of filing the written statement (subsection (c) of this Rule) is filed in the office of the clerk of the trial court . . . .

The objections filed by mother's counsel and the proposed

alternative written statement of facts were timely filed. Rule

5A:8(d) does not expressly require the party filing objections

to a previously submitted written statement of facts to notice a

separate hearing. Father received notice of mother's filing and

exercised his option of responding to mother's objections and

proposed alternative written statement of facts. Cf. Jordan v.

Jordan, 12 Va. App. 96, 402 S.E.2d 246 (1991).

When the parties elected to rely upon a written statement

of facts, they deferred to the authority of the trial judge to

make any changes or corrections he deemed necessary to correct

the record for appeal. Under an additional provision, Rule

5A:8(d) provides:

[w]ithin ten days after the notice of objection is filed with the clerk of the trial court, the judge shall:

- 4 - (1) overrule the objection; or

(2) make any corrections that he deems necessary; or

(3) include any accurate additions to make the record complete; or

(4) certify the manner in which the record is incomplete; and

(5) sign the transcript or written statement.

We have reviewed father's proposed written statement of facts,

mother's objections and alternative proposed written statement

of facts, and father's objections to mother's proposed written

statement of facts. Father's proposed written statement

encompassed matters beyond the scope of the July 31, 1998

hearing, as well as legal arguments and conclusions not properly

included in a written statement of facts. Therefore, we find no

abuse of discretion in the trial court's decision to accept

mother's proposed written statement, as amended.

Father alleges that the trial judge had improper ex parte

communication with mother's counsel and that the judge had a

private hearing with mother's counsel. Father contends that

this demonstrates judicial favoritism for mother's counsel and

bias against him. We find no support for father's allegations.

The record indicates, at most, that the trial judge elected to

use the written statement of facts included in mother's

objections and that the judge's law clerk notified mother's

counsel that he was to submit the written statement of facts for

- 5 - entry. Father was served with a copy of mother's objections,

including the proposed alternative written statement of facts.

He also was notified that it would be presented for entry by the

trial court on October 19, 1998. Nothing in the record

indicates that the trial judge had any improper communication

with mother's counsel or that he conducted a hearing with

mother's counsel. There is no prohibition on ex parte

communications that are merely administrative in nature. See

Ellis v. Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481

(1984). The record contains no indication of bias against

father or favoritism towards mother's counsel.

Father also alleges that the trial judge erred by refusing

to consider his motion to strike mother's written statement of

facts. Father's motion was filed on October 20, 1998, after

father had filed his objections to mother's written statement of

facts and after the trial judge had signed the written statement

of facts. Father was afforded an opportunity to object to the

written statement, which he exercised. The trial court did not

err in failing to address a supplementary filing neither

authorized under Rule 5A:8 nor filed prior to approval of the

written statement of facts. We find no merit in father's

assertion that his right to appeal was harmed.

Mediation

Father contends that the trial judge was required to grant

his request for mediation. Father previously raised this

- 6 - contention in his appeal No. 2759-98-4. As we stated in that

decision,

[n]o statute requires mediation. Under Code § 20-124.4, trial courts have discretionary authority to refer parties in "any appropriate case" to evaluation for possible mediation services. We find no abuse of discretion in the trial court's refusal to forward this case for mediation evaluation. The father's allegations that he was denied due process and equal protection of the law because his request for mediation was denied are without merit.

Summers, No. 2759-98-4, at 12. Father's further arguments based

upon the trial court's refusal to order mediation in this case

are without merit.

Sanctions

Father contends that the trial court erred by awarding

mother sanctions against him in connection with his motion for

mediation. At the time father filed his motion for mediation on

July 24, 1998 in Chancery No. 147468, father's appeal of the

custody order was pending before this Court. In addition, by

order dated May 1, 1998, the trial court denied a previous

motion for mediation father filed on April 17, 1998 because

"there was a Final Custody Decree dated December 18, 1997."

When father filed his additional motion for mediation on

July 24, 1998, he made certain arguments based upon his

interpretation of the legal effect of pleadings filed in the

Supreme Court litigation initiated by his Writ of Prohibition or

in the pending custody appeal. Father's motion did not allege

- 7 - that a cognizable change in condition occurred in the two months

since his previous motion for mediation was denied. There was

no change in the fact that the trial court lacked jurisdiction

to modify the custody order that was pending in this Court

pursuant to father's appeal. In our opinion affirming the trial

court's custody decision, this Court also denied father's motion

for leave to proceed with mediation.

"The orderly administration of justice demands that when an

appellate court acquires jurisdiction over the parties involved

in litigation and the subject matter of their controversy, the

jurisdiction of the trial court from which the appeal was taken

must cease." Greene v. Greene, 223 Va. 210, 212, 288 S.E.2d

447, 448 (1982). Despite the trial court's denial of his first

motion to mediate and despite the pendency of his appeal of the

custody decision, father filed another motion to mediate. We

cannot say, upon reviewing the record as a whole, that the trial

court erred by sanctioning father in the amount of $300 pursuant

to Code § 8.01-271.1.

Mother's Request for Appellate Attorney's Fees

Mother seeks an award of attorney's fees incurred on appeal

and an award of sanctions. Father, although proceeding pro se,

has a law degree. His numerous appeals have included many of

the same issues. We find that mother should be compensated for

the expenses incurred defending this appeal. See, e.g.,

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98,

- 8 - 100 (1996); Gottlieb v. Gottlieb, 19 Va. App. 77, 95-96, 448

S.E.2d 666, 677 (1994). We remand this case to the trial court

solely to determine the amount of appellate attorney's fees to

be awarded mother.

Accordingly, the decision of the circuit court is summarily

affirmed.

Affirmed and remanded.

- 9 -