Roy M. Carrithers v. Kimberly A. Harrah , 63 Va. App. 641 ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Decker
Argued at Chesapeake, Virginia
PUBLISHED
ROY M. CARRITHERS
OPINION BY
v. Record No. 0601-13-1 JUDGE D. ARTHUR KELSEY
SEPTEMBER 2, 2014
KIMBERLY A. HARRAH
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
David F. Pugh, Judge
Blanche M. Garber (BMGLAW LLC, on briefs), for appellant.
Jeffrey F. Riddle (Cowardin, Kim, Smith, Anderson & Riddle,
PLC, on brief), for appellee.
Roy M. Carrithers appeals an order from the circuit court rejecting on res judicata
grounds his latest in a series of proceedings seeking to set aside a child support arrearage ordered
in 2006. Carrithers also appeals the court’s imposition of sanctions for abusing the litigation
process. Finding no fault with the court’s reasoning or result on either issue, we affirm.
I.
In 1993, the circuit court entered a divorce decree ending the marriage between Carrithers
and Kimberly A. Harrah. One child was born during the marriage. Awarding custody of the
child to Harrah, the circuit court ordered Carrithers to pay $325 per month in child support. The
circuit court then transferred all further issues involving child custody and support to the juvenile
and domestic relations district court (“JDR court”). Carrithers never paid any of the court-
ordered child support.
In 2006, the JDR court awarded Harrah $62,096.06 in child support arrearage plus 6%
interest. Carrithers failed to make an appearance, and the JDR court entered a default judgment.
In 2010, Carrithers filed a motion in the JDR court asserting that the default judgment should be
vacated because of an alleged violation of the service of process requirements in Code
§ 16.1-278.18. This violation, Carrithers argued, deprived the court of personal jurisdiction and
rendered its judgment void. The JDR court denied the motion, holding that it had continuing
jurisdiction based upon the original divorce decree to enforce the support order.
Carrithers appealed to the circuit court seeking a de novo review of his motion to vacate.
On March 29, 2011, the circuit court entered an order holding that Harrah’s service of process
satisfied the requirements of Code § 16.1-278.18 and that the JDR court thus had personal
jurisdiction over Carrithers for the entry of a child support arrearage. In a later, separate order,
the circuit court awarded $5,825 in attorney fees to Harrah. Carrithers filed an appeal to our
Court asserting that the circuit court misapplied Code § 16.1-278.18 and erroneously failed to
vacate the 2006 JDR court arrearage order. That conclusion, Carrithers contended, meant that
the circuit court also erred in awarding attorney fees.
In Carrithers v. Harrah, 60 Va. App. 69, 723 S.E.2d 638 (2012), we held that Carrithers
had filed his notice of appeal within thirty days of the attorney fee award order but not within
thirty days of the order declaring valid the 2006 JDR court arrearage order. We dismissed as
untimely his appeal of the order declaring valid the 2006 JDR court arrearage order. We
carefully noted, however, that the notice of appeal was timely for purposes of challenging the
attorney fee award order. But we rejected that challenge on res judicata grounds because the
underlying circuit court order declaring valid the 2006 JDR court arrearage order (which
Carrithers failed to timely appeal) could no longer be challenged. Explaining this point, we
chose our words quite carefully:
It is true that Carrithers’ notice of appeal was filed within thirty days
of the trial court’s August 1, 2011 order awarding Harrah $5,825 in
attorneys’ fees. Although Carrithers’ second assignment of error
challenges this award of attorneys’ fees, the doctrine of res judicata
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bars our consideration of the sole argument he raises under this
assignment of error. Carrithers’ only argument challenging the award
of attorneys’ fees is that the JDR court — and derivatively the trial
court — lacked personal jurisdiction over him. This issue of personal
jurisdiction was an issue “finally and conclusively resolved” by the
trial court’s March 29 order. See Hall[v. Hall], 9 Va. App. [426,]
428, 388 S.E.2d [669,] 670 [(1990)]. Therefore, since Carrithers did
not timely appeal from the March 29 order, the doctrine of res
judicata bars him from arguing the issue of personal jurisdiction in
this appeal. See id. at 428-29, 388 S.E.2d at 670.
Carrithers, 60 Va. App. at 76 n.2, 723 S.E.2d at 641 n.2 (emphasis added).
Despite our application of res judicata to the March 2011order, shortly after receiving our
opinion, Carrithers filed another motion in 2012 in the JDR court seeking to vacate the 2006 JDR
court arrearage order. The parties were the same as before, and so were the factual and legal
issues. The JDR court held that res judicata barred further relitigation of the matter. The circuit
court’s final order of March 2011, the JDR court reasoned, had become final and was
undisturbed on appeal. The JDR court also found that Carrithers had abused the litigation
process and ordered that he pay $4,500 in sanctions to compensate Harrah for her legal fees.
Carrithers appealed the JDR court’s order applying res judicata to the circuit court’s
March 2011 order. Reviewing the matter de novo, the circuit court likewise held that its prior
March 2011 order was final and unaffected by his untimely, and thus unsuccessful, appeal to our
Court. The circuit court also found that Carrithers should be sanctioned and awarded $2,000 to
Harrah. The circuit court entered its final order embodying these rulings on February 26, 2013.
Carrithers now challenges this latest ruling in the present appeal.
II.
A. RES JUDICATA – RELITIGATING VOIDNESS
Carrithers raises several arguments on appeal. All of them, however, are variations on a
single syllogism: The 2006 JDR court arrearage order is void because service of process did not
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comply with Code § 16.1-278.18, thus precluding the JDR court from obtaining personal
jurisdiction over him.1 Void orders can be challenged by any court, at any time, in any manner.
Thus, Carrithers argues, we should reverse the circuit court’s February 2013 order because it
failed to declare the 2006 JDR court arrearage order void.
The superficial logic of Carrithers’s argument misses one crucial point: Whether the
2006 JDR court arrearage order is void has already been decided. The circuit court’s March
2011 order held that the service of process leading up to the 2006 JDR court arrearage order did
not violate Code § 16.1-278.18, and thus, the order is not void. The circuit court’s February
2013 order held that res judicata barred any reconsideration of that conclusion. It is this
February 2013 order applying res judicata (not the March 2011 order addressing Code
§ 16.1-278.18) that is now before us on appeal.
Framed properly, the only issue on appeal we must decide is whether a final judicial
order on the merits — otherwise entitled to res judicata effect2 — 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.
A litigant who believes he is subject to a void order may seek judicial relief either on
direct appeal or in a collateral attack. But if a court of competent jurisdiction rules against him
and declares the challenged order to be valid, that declaration is itself entitled to res judicata
effect. If that were not the case, the litigant could file (as Carrithers has begun to do here) an
endless seriatim of unsuccessful collateral attacks in hopes of finding a judge who agrees with
1
See generally Glumina Bank v. D. C. Diamond Corp., 259 Va. 312, 316, 527 S.E.2d
775, 777 (2000); Dennis v. Jones, 240 Va. 12, 19, 393 S.E.2d 390, 394 (1990).
2
It is important that the March 2011 order was a decision on the merits. Res judicata is
inapplicable to final orders that are not. See Painter v. Commonwealth, 47 Va. App. 225, 237,
623 S.E.2d 408, 414 (2005); see also Rule 1:6(a) (requiring a “decision on the merits”).
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him. Carrithers cites no legal precedent supporting such an aberrant result, and our own research
reveals none that do.
The history of the res judicata doctrine rules out even the possibility of Carrithers’s view.
Res judicata traces its “origin to no statute or rule of the common law.” Martin P. Burks,
Common Law & Statutory Pleading & Practice § 357, at 672 (4th ed. 1952). Whatever its
precise origins, res judicata “is a fundamental concept in the organization of every jural society.”
2 Henry Campbell Black, A Treatise on the Law of Judgments: Including the Doctrine of Res
Judicata § 500, at 760 (2d ed. 1902).3 It protects not only the individual litigant from the
weariness of trying the same case twice, but also society from having to pay for it.4 The
incremental cost of sustaining redundant litigation is itself a reason for insisting upon finality.
So strong are these policies that it has been said that “res judicata renders white that which is
black, and straight that which is crooked.” Jeter v. Hewitt, 63 U.S. 352, 364 (1860).
No matter how robust the repose policy underlying res judicata, however, it does not
protect a truly void order from scrutiny. “An order void ab initio is without effect from the
moment it came into existence and can be attacked by all persons, anywhere, at any time, or in
any manner.” Winslow v. Commonwealth, 62 Va. App. 539, 544, 749 S.E.2d 563, 566 (2013)
3
See generally Allen v. McCurry, 449 U.S. 90, 94 (1980); Hart Steel Co. v. R.R. Supply
Co., 244 U.S. 294, 299 (1917) (“This doctrine of res judicata is not a mere matter of practice or
procedure inherited from a more technical time than ours. It is a rule of fundamental and
substantial justice, of public policy and of private peace, which should be cordially regarded and
enforced by the courts to the end that rights once established by the final judgment of a court of
competent jurisdiction shall be recognized by those who are bound by it in every way, wherever
the judgment is entitled to respect.” (internal quotation marks omitted)).
4
See generally Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) (“[R]es
judicata rests upon considerations of public policy which favor certainty in the establishment of
legal relations, demand an end to litigation, and seek to prevent the harassment of parties.”
(citing Pickeral v. Fed. Land Bank of Balt., 177 Va. 743, 750, 15 S.E.2d 82, 84-85 (1941) (other
citation omitted))).
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(internal quotation marks and citation omitted). But that does not mean a litigant can litigate the
voidness issue ad infinitum. Once a court of competent jurisdiction declares a prior order to be
either void or valid, that declaration — if it becomes final and subject to no further appeals — is
itself entitled to the protection of res judicata.
The Restatement (Second) of Conflict of Laws explains the traditional view on this
subject. In comment c to § 96, which addresses “[w]hen jurisdiction in one action is determined
in [a] subsequent action,” the Restatement explains that the rule is “similar” to the situation
(described in comment b) where a party makes a special appearance in a case to challenge
personal jurisdiction, which, if lacking, would render a later judgment void. If the court rules
against the party and that decision becomes final, the party cannot later make a collateral attack
in a separate proceeding seeking to relitigate the issue.5
For the same reason, the Restatement observes, res judicata applies when a party first
raises the voidness claim in a subsequent proceeding (seeking to vacate an earlier final judgment)
only to lose the issue on the merits when the second court upholds the validity of the first:
A situation of this sort arises when a judgment is rendered against
the defendant by default in State X and when the judgment is
sought to be enforced in State Y the defendant contends that the X
judgment is void because the X court had no jurisdiction over him.
If the Y court finds that the X court did have jurisdiction over the
5
“If the State where the judgment was rendered has the usual rules of res judicata, the
effect of the court’s finding that it had jurisdiction over the defendant will be to preclude the
parties from attacking the judgment collaterally in the State on the ground that the court had no
jurisdiction over the defendant. If so, the parties will similarly be precluded from attacking the
judgment in other States.” Restatement (Second) of Conflict of Laws § 96 comt. b (1971); see
Bloodworth v. Ellis, 221 Va. 18, 21, 267 S.E.2d 96, 98 (1980) (explaining that when a “second
court’s inquiry ‘discloses that those [jurisdictional] questions have been fully and fairly litigated
and finally decided in the court which rendered the original judgment,’ the second court is
precluded from re-examining the jurisdiction of the court rendering the original judgment”
(quoting Durfee v. Duke, 375 U.S. 106, 111 (1963))); accord Wall v. Stinson, 983 P.2d 736, 741
(Alaska 1999); Morabito v. Wachsman, 463 A.2d 593, 596 (Conn. 1983); Undrey Engine &
Pump Co. v. Eufaula Enters., Inc., 597 P.2d 246, 249 (Kan. 1979); Dep’t of Human Servs. v.
Shelnut, 772 So. 2d 1041, 1046 (Miss. 2000).
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defendant, the question whether the defendant is precluded from
again raising the issue of the X court’s jurisdiction over him in Y
or in another State will be determined in accordance with Y local
law. The defendant will be so precluded from again raising the
issue of the X court’s jurisdiction if Y has the ordinary rules of res
judicata.
Restatement (Second) of Conflict of Laws § 96 comt. c & illus. 2 (1971) (addressing the issue in
the interstate, multi-court context).6 See, e.g., Treinies v. Sunshine Mining Co., 308 U.S. 66, 78
(1939) (finding that the second court’s invalidation of the first court’s jurisdiction, even if
erroneous, was res judicata and binding on the third court); Southard v. Southard, 305 F.2d 730,
732 (2d Cir. 1962) (same); United States v. 171.74 Acres of Land, 206 F. Supp. 322, 325 (D.
Neb. 1962) (same).
In short, under the “ordinary” and “usual rules of res judicata,” Restatement (Second)
Conflict of Laws § 96 comts. b & c — 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, Carrithers litigated the very issue
that 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, Carrithers 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
6
See also Restatement (Second) of Judgments § 15 cmt. c & illus. 1, 2 (1982);
Restatement (Second) of Conflict of Laws § 114 cmt. b, illus. 2 (1971); Robert A. Leflar,
American Conflicts Laws § 81, at 163 (3d ed. 1978).
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conclusively resolved” the “issue of personal jurisdiction” arising out of the 2006 JDR court
arrearage order. Carrithers, 60 Va. App. at 76 n.2, 723 S.E.2d at 641 n.2.7 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.8
B. SANCTIONS UNDER CODE § 8.01-271.1
In its most recent order, now on appeal to us, the circuit court sanctioned Carrithers under
Code § 8.01-271.1 and awarded Harrah $2,000 in partial compensation for her attorney fees
incurred during the defense of the second proceeding. Because Carrithers raised the same
argument (involving the same facts, parties, and legal issues) previously rejected on the merits
and left undisturbed on appeal, the circuit court concluded that Carrithers was engaging in
abusive litigation — just the kind for which the remedies in Code § 8.01-271.1 were meant to
deter. We agree.
Code § 8.01-271.1 provides, in part, that the signature of an attorney on any pleading,
written motion, or other writing constitutes a certificate that “to the best of his knowledge,
7
Carrithers did not appeal our decision to the Virginia Supreme Court, and indeed,
Carrithers conceded this fact. See Oral Argument Audio at 9:45 to 9:50.
8
We acknowledge Carrithers’s citation to Garritty v. Va. Dep’t of Soc. Servs., 11
Va. App. 39, 396 S.E.2d 150 (1990). The holding of Garritty, however, addressed res judicata
only in the limited extent of setting aside the effect of Rule 1:1 finality on a void order, thus
giving the trial court authority to declare it void. See id. at 43, 396 S.E.2d at 152 (citing Norfolk
Div. of Soc. Servs. v. Unknown Father, 2 Va. App. 420, 427, 345 S.E.2d 533, 537 (1986))
(addressing only the initial court’s authority to vacate a void order “without regard to time
limitation contained in Rule 1:1”). Neither the holding nor the reasoning of Garritty specifically
addressed the res judicata effect of a valid circuit court order, undisturbed on appeal, holding that
a prior order was not void. See App. at 190, 196 (trial judge correctly distinguishing Garritty
from this case). “Under Virginia law, stare decisis does not foreclose inquiry into an issue not
previously raised, discussed, or decided.” Moses v. Commonwealth, 45 Va. App. 357, 364 n.4,
611 S.E.2d 607, 610 n.4 (2005) (internal quotation marks omitted); see also Smith v.
Commonwealth, 281 Va. 464, 469, 706 S.E.2d 889, 893 (2011) (recognizing that cases cited by
the appellant “do not have precedential value or application in this case because the proper
disposition of an appeal under the circumstances presented here was not an issue in any case
[appellant] cites”).
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information and belief, formed after reasonable inquiry, it is well grounded in fact and is
warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law” and that “it is not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.” When applying Code
§ 8.01-271.1, courts should apply “‘an objective standard of reasonableness’ to determine
whether an attorney, ‘after reasonable inquiry, could have formed a reasonable belief that the
pleading was warranted by existing law or a good faith argument for the extension, modification,
or reversal of existing law.’” Shebelskie v. Brown, 287 Va. 18, 27, 752 S.E.2d 877, 882 (2014)
(quoting Gilmore v. Finn, 259 Va. 448, 466, 527 S.E.2d 426, 435 (2000)).
On appeal, we apply a deferential standard of review. A decision to “impose” sanctions,
Shebelskie, 287 Va. at 26, 752 S.E.2d at 881, as well as a decision to “deny” sanctions, Norfolk
S. Ry. Co. v. E. A. Breeden, Inc., 287 Va. 456, 469, 756 S.E.2d 420, 427 (2014), can be reversed
on appeal only if the trial court abuses its discretion. An abuse of discretion occurs “only ‘when
reasonable jurists could not differ’” as to the proper decision. Brandau v. Brandau, 52 Va. App.
632, 641, 666 S.E.2d 532, 537 (2008) (quoting Robbins v. Robbins, 48 Va. App. 466, 482, 632
S.E.2d 615, 623 (2006)).
This highly deferential standard of review, of course, does not “simply mean that a circuit
court may do whatever pleases it.” Shebelskie, 287 Va. at 26, 752 S.E.2d at 881 (internal
quotation marks omitted). It does mean that, for some decisions, “conscientious jurists could
reach different conclusions based on exactly the same facts — yet still remain entirely
reasonable.” Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013). The trial
court “has a range of choice, and its decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.” Lawlor v. Commonwealth, 285 Va. 187,
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212-13, 738 S.E.2d 847, 861 (2013) (alteration and internal quotation marks omitted). We apply
this “bell-shaped curve of reasonability” based on our “venerable belief that the judge closest to
the contest is the judge best able to discern where the equities lie.” Hamad, 61 Va. App. at 607,
739 S.E.2d at 239.
In this case, the circuit court did not abuse its discretion in awarding $2,000 in attorney
fees to Harrah. By any objectively reasonable measure, Carrithers’s latest collateral attack on the
2006 JDR court support arrearage award was not “warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law.” Id. Nor can he
persuasively say that it was “not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.” Id.
To be sure, Carrithers’s approach would legitimate endless litigation over the allegedly
void order from 2006. We could say on appeal, as we are now saying and previously said in our
prior opinion in 2012, that res judicata attaches to the March 2011 circuit court order — but,
according to Carrithers, saying so would not make it so. Instead, he could continue indefinitely
filing suits seeking to challenge the 2006 JDR court arrearage order until he found a judge who
agreed with him.
Needless to say, Virginia courts have no interest in thwarting innovative and scholarly
challenges to existing law, particularly when they point out ahistorical assumptions that
sometimes creep into our jurisprudence. Code § 8.01-271.1 expressly protects “good faith”
arguments seeking “the extension, modification, or reversal of existing law.” What it does not
protect, however, are insupportable claims about the present scope of existing law. It is one
thing to acknowledge the existing state of the law and argue for what some might think would be
an improvement. It is quite another to claim erroneously that existing law does not exist.
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Here, Carrithers 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 — that 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.9
III.
In sum, the circuit court correctly applied res judicata to bar Carrithers’s latest attempt to
collaterally attack the 2006 JDR court arrearage order. The court also acted within its discretion
in ordering Carrithers to pay $2,000 toward Harrah’s attorney fees, pursuant to Code
§ 8.01-271.1. We thus affirm.
Affirmed and remanded. 10
9
One of Carrithers’s assignments of error also addresses the circuit court’s determination
that certain documents were not part of the circuit court record because “[t]hey were never
offered, admitted, raised, or argued” in the circuit court. App. at 430. We need not address this
assignment of error as our holding moots this point.
10
In domestic relations cases, we award appellate attorney fees when the arguments on
appeal are “not fairly debatable under any reasonable construction of the record or the governing
legal principles. We have no reluctance imposing fees in such circumstances.” Brandau, 52
Va. App. at 642, 666 S.E.2d at 538 (citing O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479
S.E.2d 98, 100 (1996)). Like the circuit court, we do not believe Carrithers’s arguments are
fairly debatable or that his litigation strategy can be supported by even a generous inference of
good faith. We thus remand this case to the circuit court for an award of all attorney fees
incurred by Harrah on appeal and any reasonable fees incurred by Harrah on remand.
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