Rebecca Amarantides v. John Amarantides ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and McClanahan
Argued by teleconference
REBECCA AMARANTIDES, N/K/A
REBECCA ELLIOTT, F/K/A
REBECCA COLONNA
MEMORANDUM OPINION ∗ BY
v. Record No. 2838-02-4 JUDGE ELIZABETH A. McCLANAHAN
JULY 15, 2003
JOHN AMARANTIDES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
A. L. Robertson, Jr. (Law Office of Lewis and
Associates, on brief), for appellant.
Thomas D. Hughes IV (Law Offices of Thomas D.
Hughes, IV, on brief), for appellee.
Rebecca Elliott, nee Amarantides (wife), appeals an award
of attorney's fees and costs to John Amarantides (husband) in a
child custody dispute. Wife contends: (1) the trial court
abused its discretion in hearing a motion for award of fees and
costs after the Supreme Court of Vancouver, British Columbia,
had already ruled on the same issue; and (2) husband was
precluded from relitigating the issue of fees and costs by the
doctrine of res judicata. The two questions raise a single
issue, which is whether the trial court erred in granting
∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
husband's motion on fees and costs. For the reasons that
follow, we affirm the judgment of the trial court.
I. Background
The parties married on August 12, 1994. One child was born
of the marriage on December 27, 1995. In February 1997, the
parties separated. They were divorced by final decree on June
11, 1999. Husband was awarded primary physical custody of the
child in a June 23, 1999 order. In February 2001, during what
was supposed to have been a one-week access visit, wife, without
permission of husband, and in violation of the custody order,
left Virginia with the child.
In June 2001, husband located wife and child in Vancouver,
British Columbia and began proceedings to retrieve the child.
On July 4, 2001, the Canadian court granted husband's request
and allowed him to return to Virginia with the child. Just
before the close of the hearing, husband's counsel stated that
he wanted to submit actual costs under the Hague Convention.
The Canadian judge replied, "In this situation, I think I can
stop you. In the present situation I would not be ordering
costs." Counsel replied, "Very well, my lord." The judge
continued, "If it were a stranger to the child, that would be a
different ball game. But it's not it's the mother. Thank you."
In April 2002, husband petitioned the Virginia circuit
court for a rule to show cause against wife, arguing that she
was in contempt of court for failure to pay court-ordered child
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support and that she was responsible for the expenses husband
incurred to have the child returned from Canada. The court held
a show cause hearing on July 25, 2002, at which the trial judge
held wife in contempt of court. In order to purge herself of
the contempt, wife was required to pay $18,375.34, which
included the support arrearage and husband's fees and costs
associated with retrieving the child from Canada.
On July 26, 2002, the court entered an order acknowledging
that wife had tendered $10,000, depositing the funds into
chancery, and held disbursement of the funds until further order
of the court. On August 2, 2002, the court entered a final
order, finding wife in contempt of court and disbursing the
previously tendered funds to husband. 1 This appeal followed.
II. Analysis
"The bar of res judicata precludes relitigation of the
same cause of action, or any part thereof, which could be
litigated between the same parties and their privies." Smith v.
Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992). Wife claims
she preserved the res judicata issue in the "Transcript of July
25, 2002 Show Cause Hearing," but she did not include that
1
Code § 19.2-318 provides for the appeal of contempt
matters to this Court. In her "Amended Notice of Appeal," wife
appeals the trial court's order of July 25, 2002, "memorialized
on or about August 2, 2002." "The contempt decree imposed a
sentence and adjudicated all issues; it was final, and this
Court ha[s] jurisdiction of the appeal." Peet v. Peet, 16
Va. App. 323, 326, 429 S.E.2d 487, 490 (1993).
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transcript in the record submitted to this Court. Therefore, we
cannot determine what arguments were presented to the trial
court or on what basis the court determined it could hear the
issue. The trial judge did not address the res judicata issue
in his order.
Wife included in the appendix submitted to this Court a
"Memorandum in Opposition to Request for Fees and Costs," which
includes a res judicata objection. However, the memorandum does
not appear in the trial court record, and it indicates that it
was served on husband the same day as the hearing and the trial
judge's order, July 25, 2002. Because there is no indication
that the memorandum was presented to the trial court, nor any
other evidence that the res judicata objection was raised before
the trial court, this Court cannot determine whether the res
judicata objection was, in fact, raised. This Court will not
consider an argument on appeal that was not presented to the
trial court. Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998); Rule 5A:18.
Because the issue was not properly preserved, we find no
error in the trial court, and we affirm.
Affirmed.
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