Landon T. A. Summers v. Marcia Lee Brown Summers

• Court: Court of Appeals of Virginia
• Decided: June 15, 1999
• Docket: 2759984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

LANDON T. A. SUMMERS MEMORANDUM OPINION * v. Record No. 2759-98-4 PER CURIAM JUNE 15, 1999 MARCIA LEE BROWN SUMMERS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Barnard F. Jennings, Judge Designate

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

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

Landon T.A. Summers (father) appeals the final decree of

divorce entered by the circuit court on October 27, 1998. By

decree entered December 18, 1997, the trial court resolved the

permanent custody issues between the parties. On the father's

appeal from that decree, this Court summarily affirmed. See

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

The Supreme Court of Virginia dismissed the father's petition for

appeal of that ruling. See Summers v. Summers, No. 990067 (Va.

Feb. 17, 1999).

The father contends that the trial court violated his rights

to due process and equal protection by the following actions:

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1) entering a custody decree that was both interlocutory and final;

2) entering a final decree of divorce in violation of Rule 1:1, after having entered a final decree as to custody and child support without any reservation of jurisdiction;

3) ruling that the October 24, 1997 support order was a final decree and failing to make written findings of fact;

4) effectively overturning the final decree of divorce by entering a pendente lite support order on December 18, 1998;

5) entering a divorce decree which conflicts with the trial court's jurisdiction conferred by Code § 20-103;

6) ruling that there is a statutory difference between Code § 20-103 pendente lite orders and interlocutory orders pending a final order of divorce;

7) denying the father access to his children's medical and school records without good cause;

8) denying the father mediation;

9) entering the final decree of divorce without hearing testimony and without a properly filed commissioner's report; and

10) violating the father's civil rights so that the father is entitled to costs and attorney's fees from the trial court judges pursuant to 42 U.S.C. § 1983 and compensatory damages from other state agents for denial of his federally protected rights.

In her response, Marcia Lee Brown Summers (mother) seeks an award

of fees incurred in this appeal.

- 2 - Upon reviewing the record and briefs of the parties, we

conclude that this appeal is without merit. Accordingly, we

summarily affirm the judgment of the trial court. See Rule 5A:27.

Certification Motion

As a preliminary matter, we deny the husband's motion to

certify this case to the Supreme Court of Virginia pursuant to

Code § 17.1-409. This case raises no imperative public question

justifying a deviation from normal appellate practice. See Code

§ 17.1-409(B)(1).

Issue One

The father's appeal of the pendente lite support order was

dismissed by this Court for lack of appellate jurisdiction. See

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

However, the father's appeal of the permanent custody decision

is now final. See Summers, No. 2669-97-4 (Nov. 10, 1998); and

Summers, No. 990067 (Feb. 17, 1999).

Res judicata "precludes the relitigation of a claim or issue

once a final determination on the merits has been reached by a

court of competent jurisdiction." Commonwealth ex rel. Gray v.

Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989).

While the father's present appeal seeks to recast the custody

issues raised in his prior appeal, he has heretofore exhausted his

right to appeal the custody decrees entered by the trial court on

October 17, 1997 and December 18, 1997. He may not continue to

- 3 - seek appellate review of those orders. Therefore, we hold that

the father is barred by res judicata from pursuing issue one.

Issue Two

In the father's prior appeal, this Court held that the trial

court did not err in deciding the issue of custody by its order

entered December 18, 1997. See Summers, No. 2669-97-4 (Nov. 10,

1998). The decision concerning the grounds for divorce and

equitable distribution was unaffected by that ruling and remained

pending before the trial court. The father misconstrues Rule 1:1

when he argues that the trial court lost jurisdiction in Chancery

No. 147468 after entering the interlocutory custody decree. Rule

1:1 provides that "[a]ll final judgments, orders, and decrees,

irrespective of terms of court, shall remain under the control of

the trial court and subject to be modified, vacated, or suspended

for twenty-one days after the date of entry, and no longer." This

rule prohibited modification of the entered custody order more

than twenty-one days after its entry; it did not deny the trial

court jurisdiction over the issues of the case still pending and

unaffected by the custody order. Therefore, the father's argument

on this question is without merit.

Issue Three

The father previously appealed the trial court's pendente

lite child support order, entered October 24, 1997. As this Court

noted in its order dismissing the father's appeal, orders of

support pendente lite are not final, appealable orders. See

- 4 - Summers, No. 2826-97-4 (Jul. 6, 1998). That ruling is now final,

and the father will not be heard to argue in this appeal that the

previous ruling was erroneous.

The father now contends that he is entitled to the return of

support monies paid pursuant to an order he believes to be

erroneous and in violation of his rights to due process and equal

protection. The record supports the father's contention that the

trial court erred when it indicated in the divorce decree that

"the matters of . . . child support [had] been adjudicated in

separate, prior decrees of this court." See generally Duke v.

Duke, 239 Va. 501, 391 S.E.2d 77 (1990). The trial court

previously had entered only a pendente lite child support order.

No other child support order had been entered at that time. In

entering the divorce decree, the trial court did not expressly

adopt its previous pendente lite support order or enter any other

support order.

Notwithstanding that misstatement by the trial court, the

father is not entitled to the relief he seeks. The father filed

his notice of appeal from the October 27, 1998 divorce decree

order on November 23, 1998. By order entered over the father's

objection November 30, 1998, this Court granted the trial court

leave to entertain child support proceedings. The parties then

obtained entry of a consent decree dated December 18, 1998, fixing

child support. Neither party objected to this consent decree.

The consent decree set the amount of child support "until there is

- 5 - a final hearing on child support at the equitable distribution

hearing (or a material change in circumstances determined by the

court)." Thus, we need not determine whether the father was

obligated to continue paying pendente lite support following entry

of the final decree of divorce. That issue was mooted by entry of

the consent decree. The father preserved no objection to the

consent decree.

We reject the father's contention that he is entitled to the

return of support money paid. A trial court has no statutory or

inherent authority to order restitution of previously paid child

support. See Wilson v. Wilson, 25 Va. App. 752, 760, 492 S.E.2d

495, 499 (1997). By endorsing the consent order which fixed the

amount of support to be paid until the "final hearing on child

support at the equitable distribution hearing," the father agreed

to that date for setting an award.

Issue Four

The father's contentions that this Court and the trial court

acted in excess of statutory jurisdiction and that this Court

initiated inappropriate ex parte communication with the mother are

without merit. As noted, the father's appeal of the pendente lite

support order was dismissed as untimely. This Court again

acquired jurisdiction when the father subsequently appealed the

decree of divorce. Upon the mother's motion, this Court allowed

the trial court to proceed with matters of child support. That

action was not "out-of-time jurisdiction" or "ultra-legislation

- 6 - jurisdiction." Once this Court properly acquired jurisdiction, it

had the authority to grant the trial court leave to proceed while

the appeal was pending. See Greene v. Greene, 223 Va. 210, 212,

288 S.E.2d 447, 448 (1982). Furthermore, the parties entered into

a consent decree that fixed the amount of support and fixed the

date for entry of an order of permanent support. The issue of the

trial court's authority to enter a permanent support award became

moot upon entry of the parties' consent decree.

The father also complains that this Court participated in ex

parte communication with the mother's counsel. In support

thereof, he cites the letter from the wife's counsel forwarding

copies of several orders in this matter, "[a]s requested," to this

Court.

The father does not allege, and the record does not indicate,

that the wife's counsel communicated with any judges of this Court

or that the Clerk's office engaged in inappropriate ex parte

substantive discussions with the wife's counsel. The bar against

ex parte communication "arises only when 'an ex parte

communication relates to some aspect of the [trial].'" Ellis v.

Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481 (1984)

(holding that the bar on ex parte communications does not apply to

administrative issues).

Issue Five

The father's contentions that the trial court exceeded its

statutory authority when it entered its December 18, 1997 custody

- 7 - order and that he was denied a final hearing on custody issues are

without merit. As noted under Issue One, issues arising from the

previously appealed custody order are now barred by res

judicata.

Even if we view the father's arguments as an attempt to raise

issues not barred, we find them to be without merit. Code

§ 20-103 provides, in pertinent part, as follows:

In suits for divorce, . . . the court having jurisdiction of the matter may, at any time pending a suit pursuant to this chapter, in the discretion of such court, make any order that may be proper . . . (iv) to provide for the custody and maintenance of the minor children of the parties, including an order that either party provide health care coverage for the children, (v) to provide support, calculated in accordance with § 20-108.2, for any child of the parties to whom a duty of support is owed and to continue to support any child over the age of eighteen who meets the requirements set forth in subsection C of § 20-124.2 . . . .

Nothing in Code § 20-103 barred the trial court from entering

its December 18, 1997 order finally resolving the issue of

custody. On the contrary, the trial court's resolution of

custody matters before deciding the remaining issues comports

with the requirements of Code § 20-124.2, which provides, in

pertinent part that

[i]n any case in which custody or visitation of minor children is at issue, whether in a circuit or district court, the court shall provide prompt adjudication, upon due consideration of all the facts, of custody and visitation arrangements, including support and maintenance for the children,

- 8 - prior to other considerations arising in the matter.

Code § 20-124.2(A). The father appealed the custody order,

which we accepted as an appealable interlocutory order because

it resolved the custody issue. Because the record demonstrates

that the parties had ample opportunity to address the issue of

custody, the father's contention that he was denied a final

custody hearing is without merit.

Issue Six

The December 18, 1997 custody order was an interlocutory

order which adjudicated the principles of the cause as to

custody and was separately appealable. Review of that order on

this appeal is barred by res judicata.

The father alleged that this Court "knowingly misquoted"

Erikson v. Erikson, 19 Va. App. 389, 451 S.E.2d 711 (1994), in

the opinion issued in his prior appeal. See Summers, No.

2669-97-4 (Nov. 10, 1998). We disagree with the father's

interpretation of Erikson. In Erikson, the trial court's ruling

that the parties were validly married was found to be an

unappealable interlocutory order.

Although the factual finding and legal holding that the parties are validly married is an essential element of the complainant's cause of action, that ruling is not a legal determination of "the principles" that are necessary to adjudicate the cause, and the ruling does not "respond to the chief object of the suit which was to secure a divorce."

- 9 - Id. at 391, 451 S.E.2d at 713 (citations omitted). Contrary to

the father's contention, Erikson does not stand for the

proposition that, in any case in which a divorce is sought,

there can be no appealable interlocutory order which does not

grant the divorce. Such an interpretation renders meaningless

the limited statutory grant of jurisdiction to this Court to

hear certain interlocutory appeals. See Code § 17.1-405(4).

See generally Wells v. Wells, 29 Va. App. 82, 509 S.E.2d 549

(1999) (order denying objection to jurisdiction was not

appealable interlocutory order); Nenninger v. Nenninger, 19 Va.

App. 696, 454 S.E.2d 45 (1995) (order other than final decree of

divorce bifurcating divorce proceedings from equitable

distribution proceedings was not appealable interlocutory

decree); Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d

229, 229 (1991) (order invalidating antenuptial agreement was

not appealable interlocutory order). Under appropriate

circumstances, such as we have previously held existed in this

case, parties may appeal interlocutory orders adjudicating

principles of a cause before entry of the final decree. See

Southwest Virginia Hospitals, Inc., v. Lipps, 193 Va. 191, 193,

68 S.E.2d 82, 84 (1951).

Moreover, as the party who appealed the custody order at

the time it was issued rather than waiting until the entire

matter was concluded, father may not now be heard to complain

about the procedural and jurisdictional results of his appeal.

- 10 - "'He cannot approbate and reprobate--invite error and then take

advantage of his own wrong.'" Steinberg v. Steinberg, 21 Va.

App. 42, 50, 461 S.E.2d 421, 424 (1995) (quoting Sullivan v.

Commonwealth, 157 Va. 867, 878, 161 S.E. 297, 300 (1931)).

Issue Seven

The father sought to subpoena certain records by motion filed

with the trial court during the pendency of his previous appeal of

the custody order. The trial court granted mother's motion to

quash the subpoenas on the grounds that "there is no new motion

before the court and there was a final custody decree dated

December 18, 1997." At the time father sought the subpoenas, the

trial court lacked subject matter jurisdiction over the case,

which was then on appeal. "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, 223 Va. at 212, 288 S.E.2d

at 448. See also Frazer v. Frazer, 23 Va. App. 358, 379-80, 477

S.E.2d 290, 300 (1996). We find no error in the trial court's

decision to quash the subpoenas.

Issue Eight

In support of his contention that the trial court denied him

due process and equal protection by denying his request for

mediation, the father cites two orders of the trial court denying

mediation for lack of jurisdiction. Both orders denied mediation

- 11 - because the trial court lacked jurisdiction during the pendency of

the father's previous appeal of the custody order. Although the

father has not referred us to another order denying his request

for mediation after the trial court was authorized to proceed, we

nonetheless considered the merits of his contention.

No 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.

Issue Nine

The father's contention that the trial court granted the

divorce without corroborated testimony and without reviewing the

commissioner's report is without merit. The decree of divorce

specifically states that "[t]his Cause was heard upon the Bill of

Complaint; the Defendant's Answer; the hearing before the

Commissioner in Chancery; the Report of the Commissioner." "A

court speaks only through its orders." Cunningham v. Smith, 205

Va. 205, 208, 135 S.E.2d 770, 773 (1964). See Hill v. Hill, 227

Va. 569, 578, 318 S.E.2d 292, 297 (1984). We "'presume that the

order, as the final pronouncement on the subject, rather than a

transcript that may be flawed by omissions, accurately reflects

- 12 - what transpired.'" Kern v. Commonwealth, 2 Va. App. 84, 88, 341

S.E.2d 397, 400 (1986) (citation omitted).

Issue Ten

The father has failed to demonstrate that the issues raised

in this appeal have merit. Therefore, his assertion that the

trial court and "each of the judges in this matter" have violated

his civil rights under the Fourteenth Amendment and are liable to

him for damages under 42 U.S.C. § 1983 is unfounded and without

Appellate Fees

Based upon the extensive issues raised by the father on

appeal, all of which lack merit, we find that the mother is

entitled to recover reasonable attorney's fees and costs incurred

by her in defending this appeal. We remand this matter to the

trial court for a determination of those costs and fees. See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).

Accordingly, the judgment of the circuit court is summarily

affirmed, and the matter is remanded to the trial court for a

determination of mother's costs and fees incurred on appeal.

Affirmed and remanded.

- 13 -