Carrithers v. Harrah
| Decision Date | 02 September 2014 |
| Docket Number | Record No. 0601–13–1. |
| Citation | 63 Va.App. 641,762 S.E.2d 402 |
| Court | Virginia Court of Appeals |
| Parties | Roy M. CARRITHERS v. Kimberly A. HARRAH. |
OPINION TEXT STARTS HERE
Blanche M. Garber (BMGLAW LLC, on briefs), for appellant.
Jeffrey F. Riddle, Newport News (Cowardin, Kim, Smith, Anderson & Riddle, PLC, on brief), for appellee.
Present: KELSEY, BEALES and DECKER, JJ.
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.
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 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 2011 order, 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.
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 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 effect 2—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 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, 22 How. 352, 16 L.Ed. 345 (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) (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...
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