Barrett v. Minor
| Decision Date | 12 May 2015 |
| Docket Number | Record No. 0173-14-3 |
| Court | Virginia Court of Appeals |
| Parties | TIMOTHY M. BARRETT v. 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UNPUBLISHED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 brief), for appellee.
This appeal arises out of twelve petitions to amend custody and visitation that were filed by the parties1 in the City of Bristol Juvenile and Domestic Relations District Court ("juvenile court"). The juvenile court resolved all twelve petitions with three orders entered on October 4, 2012 ("2012 orders"), which the father, Timothy M. Barrett ("appellant"), appealed to the Circuit Court for the City of Bristol ("circuit court"). On May 2, 2013, the circuit court, acting on motions filed by appellant, entered an order nonsuiting the appeals relating to appellant's petitions and withdrawing the appeals relating to Valerie Jill Rhudy Minor's ("appellee") petitions. Appellant refiled a complaint with the circuit court in October 2013, which, upon appellee's motion, the circuit court dismissed. Appealing this dismissal order, appellant presents eight assignments of error:
1. The [circuit c]ourt erred in not disqualifying Mr. Minor as [appellee's] attorney in violation of Code § 16.1-298(A) and the Rules of Professional Responsibility.
2. The [circuit c]ourt erred in finding that the [j]uvenile court granted . . . appellee's motion[s] to amend [visitation] as to the three youngest children.
3. The [circuit c]ourt erred in giving effect to the juvenile court order, denying . . . appellant an appeal de novo.
4. The [circuit c]ourt erred in ruling that it did not have jurisdiction over . . . appellant's complaint.
5. The [circuit c]ourt erred in violating . . . appellant's right to re-file his same case after his non-suit.
6. The [circuit c]ourt erred in relying on the juvenile court order which is void as being contrary to . . . appellant's constitutional rights to due process and equal protection.
7. The [circuit c]ourt erred in not granting . . . appellant leave to amend his complaint to the degree that the complaint was relied upon by the [circuit] court in making its decision.
8. The [circuit c]ourt erred in handling the record of the case by excluding records commanded to be included as a matter of law and by including documents not in evidence.
Responding, appellee asks this Court to award her attorneys' fees related to this appeal. For the following reasons, this Court affirms the circuit court's order dismissing appellant's complaint, awards appellee attorneys' fees related to this appeal, and remands the case for a determination and entry of a reasonable award of attorneys' fees.
"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 April 9, 2010, the Grayson County Circuit Court ("Grayson Circuit Court") entered an order ("2010 order") determining that custody of the parties' minor children2 shall remain with appellee. Additionally, the order provided appellant with one weekend of visitation every six weeks and one 30-minute telephone conversation each week.
In 2011, appellee married an attorney, Steven R. Minor ("Minor"), and moved with four of the children to Bristol, Virginia. As a result, appellant filed eight petitions in the juvenile court to amend custody and visitation, two for each of the four minor children, and appellee filed four petitions to amend visitation, one for each child.3 Minor initially represented appellee before the juvenile court. Upon appellant's motion, however, the juvenile court disqualified Minor as appellee's attorney on the ground that Minor would be a necessary witness in the proceedings. After the proceedings, the juvenile court entered the 2012 orders, which maintained the prior custody arrangement and slightly modified appellant's visitation schedule. Appellant appealed all of the cases to the circuit court.
On May 2, 2013, after the circuit court ruled that appellant could not depose the parties' minor children or conduct any other discovery in the case, appellant nonsuited the appeals of his cases ("closed cases") and withdrew the appeals of appellee's cases. On October 15, 2013, appellant filed a complaint in the circuit court seeking to amend the 2010 order from the Grayson Circuit Court. Appellee, who was again represented by Minor, moved to dismiss the complaint,claiming that the 2012 orders were "revived" by the withdrawal of appellant's appeals and were therefore res judicata for his complaint. Appellee also argued the circuit court lacked jurisdiction to modify the 2012 orders and that appellant would have to refile in the juvenile court. Appellant opposed the motion to dismiss, arguing that, if granted, the court would interfere with his right to refile after taking a nonsuit. Additionally, appellant moved the circuit court to dismiss Minor as appellee's counsel.
To the extent that appellant's complaint attempted to modify the 2010 order, the circuit court dismissed it with prejudice, and to the extent that it attempted to modify the 2012 orders, the circuit court dismissed it without prejudice. The circuit court did not address appellant's motion to dismiss Minor as appellee's counsel. In January 2014, appellant wrote a letter to the clerk of the circuit court asking her to get the files from Judge Vanover, "as that needs to be part of the record." Appellant claimed that Judge Vanover kept the files after granting appellant's nonsuit because he intended to hear the refiled cases. The clerk certified the record to this Court without the files from the closed cases. As a result, appellant moved to correct the record, which motion was denied as untimely. Appellant then proposed a written statement of facts; appellee objected and proposed her own written statement. The circuit court adopted most of appellee's proposed statement in its order dated March 28, 2014. Consequently, appellant asked this Court to overturn the order on the written statement, which this Court refused to do by order dated July 22, 2014. This appeal followed.
In his third, fourth, and fifth assignments of error, appellant contends that the circuit court erred when it dismissed his complaint to amend the 2010 order. Specifically, appellant arguesthat the circuit court had jurisdiction to hear his refiled case after he took a nonsuit4 and, consequently, should have conducted a de novo trial.
As an initial matter, appellee argues that Rule 5A:18 should bar these assignments of error. Rule 5A:18 provides, in relevant part, that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." "Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has 'an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.'" Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)).
In the present case, appellee argues that Rule 5A:18 bars appellant's argument because appellant raised the argument for the first time in his post-judgment, written objections. In Lee v. Lee, 12 Va. App. 512, 515-16, 404 S.E.2d 736, 738 (1991) (en banc) (citing Highway Comm'r v. Easley, 215 Va. 197, 201-02, 207 S.E.2d 870, 873-74 (1974)), however, this Court noted that an appellant may "meet the mandates of Rule 5A:18" by "includ[ing] an objection and reasons therefore in the final order or at least tender such an order to the trial judge." As appellant included these arguments in his written objections to the final order in the present case, this Court will discuss the merits of his arguments.
Code § 16.1-298(D) provides that when "an appeal to the circuit court is withdrawn in accordance with § 16.1-106.1, the judgment, order, or decree rendered by the juvenile court shall have the same legal effect as if no appeal had been noted . . . ." Relying on this provision,appellee asserts that the 2012 orders gained binding legal effect for the purposes of res judicata when appellant withdrew his appeals of these orders to the circuit court. Continuing, appellee argues that if appellant wanted to file a motion to amend the 2012 orders, such motion would have needed to be filed in the juvenile court.
Appellant, on the other hand, argues that while he withdrew the appeals of appellee's cases, he nonsuited the appeals of his own cases. Code § 8.01-380(B) provides that a party may take "one nonsuit . . . as a matter of right . . . ." Then, after a nonsuit has been taken, the plaintiff "may recommence his action within six months of the date of the order entered by the court . . . ." Code § 8.01-229(E)(3). In the present case, appellant refiled his nonsuited appeals within the six-month period prescribed in Code § 8.01-229(E)(3).
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