Barrett v. Commonwealth
| Decision Date | 19 May 2015 |
| Docket Number | Record No. 1614-14-3,Record No. 1613-14-3 |
| Court | Virginia Court of Appeals |
| Parties | TIMOTHY M. BARRETT v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. VALERIE JILL RHUDY BARRETT AND VALERIE JILL RHUDY MINOR |
UNPUBLISHED
Present: Chief Judge Huff, Judges Chafin and Russell
Argued by teleconference
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
William N. Alexander, II, Judge Designate
Timothy M. Barrett, pro se.
Steven R. Minor (Elliott Lawson & Minor, on briefs), for appellee Valerie Jill Rhudy Minor.
No brief or argument for appellee Commonwealth of Virginia, Department of Social Services, Division of Child Support Enforcement, ex rel. Valerie Jill Rhudy Barrett.
These cases are the latest in an extensive series of appeals filed by Timothy M. Barrett ("appellant") arising from his divorce from Valerie Jill Rhudy Minor ("appellee") and theresulting custody, visitation, and support issues.1 The current dispute arose from orders of the Grayson County Circuit Court ("Grayson Circuit Court") that modified appellant's child support obligation ("support case") and found appellant in contempt ("contempt case") for failing to pay past due support. These two companion cases were appealed to this Court, which affirmed on all issues but one in the child support case, Barrett v. Commonwealth, Dep't of Soc. Serv., Div. of Child Support Enforcement ex rel. Barrett, No. 1382-10-3, 2011 Va. App. LEXIS 245, at *7 (Va. Ct. App. July 26, 2011) (), and reversed on one of appellee's cross-assignments of error in the contempt case, Barrett v. Commonwealth, No. 1381-10-3, 2011 Va. App. LEXIS 246, at *35-36 (Va. Ct. App. July 26, 2011) (). Upon remand, the Grayson Circuit Court granted appellant's motion to transfer venue of the cases to the Circuit Court for the City of Bristol ("Bristol Circuit Court"). The Bristol Circuit Court, however, dismissed the cases on the ground that it lacked jurisdiction under Code § 16.1-296(J). It is from this dismissal order that appellant appeals, presenting a total of thirty assignments of error. Both appeals, however, share fourteen identical assignments of error:
1. The [Bristol Circuit C]ourt erred in not disqualifying Mr. Minor as the attorney for appellee . . . for violating the Rules of Professional Conduct.
2. The [Bristol Circuit C]ourt erred in failing to consider and in not granting petitioner's motion that appellee . . . decide if she would represent herself or have DCSE represent her.
3. The [Bristol Circuit C]ourt erred in failing to recuse itself after pre-judging the legal legitimacy of the venue transfer.
4. The [Bristol Circuit C]ourt erred in ruling that Code § 16.1-296(J) provides for exclusive jurisdiction in the [Grayson Circuit Court].
5. The [Bristol Circuit C]ourt erred in not recognizing the [Grayson Circuit Court's] authority to transfer venue under Code § 16.1-243 when read in light of Code § 16.1-296(I).
6. The [Bristol Circuit C]ourt erred in not recognizing the [Grayson Circuit Court's] authority to transfer venue under Code § 8.01-257 et. seq. incident to its original jurisdiction granted by an appeal de novo.
7. The [Bristol Circuit C]ourt erred in failing to see the issue in this case as venue and not jurisdiction after finding the [Grayson Circuit Court] had jurisdiction.
8. The [Bristol Circuit C]ourt erred in failing to be bound by the rulings of the [Grayson Circuit Court] and this Court on this very issue.
9. The [Bristol Circuit C]ourt erred in failing to recognize that venue is only proper in the City of Bristol, which is where [appellee] and the children reside.
10. The [Bristol Circuit C]ourt erred in failing to apply the doctrine of clean hands to [appellee's] motion to dismiss.
11. The [Bristol Circuit C]ourt erred in denying [appellant] due process when it ruled one way from the bench and then entered an order which was not reflected of that bench ruling.
12. The [Bristol Circuit C]ourt erred in entering a written order that does not reflect its oral order.
13. Assuming the [Bristol Circuit C]ourt was right on the Jurisdiction/Venue issue, [it] erred in dismissing this case rather than declaring the [Grayson Circuit Court] venue transfer orders void and returning the case back to Grayson County for adjudication.
14. The [Bristol Circuit C]ourt erred in failing to deal with the appeal bond, depriving . . . appellant of his property without due process of law.
Additionally, in case No. 1613-14-3, appellant argues that "[t]he [Bristol Circuit C]ourt erred in failing to consider and not granting [appellant's] motion to disqualify DCSE as a party in this case." Furthermore, in case No. 1614-14-3, appellant argues that "[t]he [Bristol Circuit C]ourt erred in denying [appellant] due process by failing to give him notice and opportunity to be heard before dismissing the contempt matter."
In both cases, appellee presents three identical cross-assignments of error:
Additionally, appellee asks this Court to award her attorneys' fees and costs associated with these appeals. For the following reasons, this Court affirms the rulings of the Bristol Circuit Court.
"When reviewing a [trial] court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citing Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002)). "That principle requires us to 'discard the evidence' of [appellant] which conflicts, either directly or inferentially, with the evidence presented by [appellee] at trial." Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence is as follows.
On June 4, 2007, the Grayson Circuit Court ordered appellant to pay appellee $1,511 per month in child support ("2007 order"). In 2009, appellee brought an action against appellant in the Grayson County juvenile court ("juvenile court") to enforce the 2007 order, but the juvenile court dismissed appellee's motion. Consequently, appellee appealed to the Grayson Circuit Court. In 2010, the Grayson Circuit Court entered final orders ("2010 orders") slightly modifying appellant's support obligation ("support case"), and fixing his arrearage at $9,896 for unpaid support between January and August of 2009 ("contempt case"). Appellant appealed both of these cases to this Court ("2011 appeals"), causing the Grayson Circuit Court to set an appeal bond in the amount of $12,000.
Before this Court ruled on the 2011 appeals, however, the Department of Child Support Enforcement ("DCSE") brought an enforcement action against appellant, resulting in the juvenile court ordering appellant to pay $22,399.20 to DCSE. Appellant complied with this order ("2011 payment"). Consequently, appellee moved this Court to dismiss appellant's appeal in the contempt case as moot ("mootness motion"). Appellant opposed the mootness motion, however, arguing that he "has not paid . . . [a]ppellee a dime" of the $9,896. Specifically, appellant argued that there was an agreement with DCSE that the 2011 payment was for the "current arrears" as of June 2011, "leav[ing] the issue of what to do with the $9,896 up to this Court."
This Court denied appellee's mootness motion by order dated July 21, 2011. A few days later, this Court ruled on the 2011 appeals. In the contempt case, this Court agreed with appellee's cross-assignment of error regarding the retroactivity of any modification to support and remanded the case "to determine the appropriate date of retroactivity . . . ." Barrett, No. 1381-10-3, 2011 Va. App. LEXIS 246, at *42. In the support case, this Court held that appellantprevailed on one out of "essentially twenty-seven assignments of error"2 and remanded the case. Barrett, No. 1382-10-3, 2011 Va. App. LEXIS 245, at *21-22. This Court also awarded appellee attorneys' fees in both cases.
On remand to the Grayson Circuit Court, appellee asked the court to disburse the appeal bond for the costs of appeal and the arrearage, citing appellant's representations to this Court that the arrearage for January through August of 2009 was still unpaid. Responding, appellant argued that the arrearage was paid because the 2011 payment "included the arrears of the present contempt action." The Grayson Circuit Court concluded that appellant had paid the arrearage, but kept the appeal bond on deposit with the Clerk, allowing only disbursement of the costs from the appeals.3
In 2011, appellee married Steven R. Minor ("Minor") and moved, with the parties' children, to Bristol, Virginia. Consequently, in August 2012, appellant moved the Grayson Circuit Court to transfer the cases to the Bristol Circuit Court. After a hearing on November 9, 2012, the Grayson Circuit Court granted appellant's motions over appellee's objection.
At a hearing before the Bristol Circuit Court in January 2014 regarding custody and visitation of the children, a case that is also on appeal before this Court,4 Judge Alexander commented regarding the transfer orders of a third5 case between the parties that was alsotransferred to Bristol from the Grayson Circuit Court. Specifically, Judg...
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