Nickey v. Grittner

• Decision Date: 28 October 1982
• Docket Number: No. 15531,15531
• Citation: 297 S.E.2d 441,171 W.Va. 35
• Parties: Mary W. Grittner NICKEY v. Roger P. GRITTNER.
• Court: West Virginia Supreme Court

Page 441

297 S.E.2d 441

171 W.Va. 35

Mary W. Grittner NICKEY v. Roger P. GRITTNER.

No. 15531.

Supreme Court of Appeals of West Virginia.

Oct. 28, 1982.

Syllabus by the Court

1. "Before the principles of res judicata can be involved, there must have been an adjudication on the merits of a case." Syl. pt. 1, Rife v. Woolfolk, 169 W.Va. 660, 289 S.E.2d 220 (1982), quoting, Syl. pt. 6, Johnson v. Huntington Moving and Storage, Inc., 160 W.Va. 796, 239 S.E.2d 128 (1977).

2. "An issue held to be not properly before the court and left expressly undetermined, may be raised in further proceedings between the parties." Syl. pt. 3, West Virginia Sanitary Engineering Corp. v. Kurish, 137 W.Va. 856, 74 S.E.2d 596 (1953), quoting, Syl. pt. 6, New River & Pocahontas Consolidated Coal Company v. Eary, 115 W.Va. 46, 174 S.E. 573 (1934).

3. "The laws of the state where a contract is made and is to be performed determine the substantive rights of the parties to such contract; but in the enforcement of those rights by litigation, the procedural laws of the state where enforcement is sought control." Syl. pt. 2, In re Fox' Estate, 131 W.Va. 429, 48 S.E.2d 1 (1948).

John C. Skinner, Jr., Nichols & Skinner, Charles Town, for appellant.

Fred D. Clark, Clark & Thompson, Charleston, for appellee.

PER CURIAM:

Mary W. Grittner Nickey appeals from an order of the Jefferson County Circuit Court, which dismissed her action for arrearages in child support payments, on the grounds of res judicata. She contends, inter alia, that there had not been a previous judgment on the merits of her claim, and thus the trial court improperly granted the appellee's motion to dismiss. We agree, and we reverse.

The essential facts of the case are not in dispute. On December 8, 1969, appellant and the appellee, Roger P. Grittner, then husband and wife, executed a separation agreement in Pennsylvania. By its terms, the appellee agreed to pay $70 per week for support of the parties' three minor children. The agreement further provided that either party could seek alteration of the weekly payment amount in the Domestic Relations Court of Lycoming County or a similar court in another jurisdiction; that the agreement would survive any action for divorce; and that its terms would be governed by Pennsylvania law.

On February 4, 1970, the appellant was granted a divorce from the appellee by the Court of Common Pleas of Lycoming County, Pennsylvania. The divorce decree did not mention the separation agreement, nor did it provide for any payment of child support.

The appellant later moved to Virginia, and the appellee moved to Jefferson County, West Virginia. On November 20, 1980, the appellant filed a civil action in the Circuit Court of Jefferson County, and by her Amended Petition filed January 7, 1981 sought a judgment of $2,870 for arrearages in child support payments under the separation agreement, and an increase in the amount of future payments.

After a hearing, the circuit court entered an order on January 22, 1981, approving and adopting an agreement between the parties as to future child support payments. The order further stated:

"The Court declines to rule on the question of accrued back child support in the belief that this is a matter to be settled in the Courts of Pennsylvania where the support order originated."

On March 9, 1981, the appellant filed another civil action in the Jefferson County Circuit Court, seeking a judgment of $3,220 under the contract of December 8, 1969. The appellee served a Motion to Dismiss the Complaint on March 26, 1981, on the grounds of res judicata, lack of subject matter jurisdiction, estoppel, payment and release, accord and satisfaction, laches, statute of limitations, and waiver. At a hearing on the motion, counsel for the parties tendered copies of the separation agreement, the divorce order, the appellant's Amended Petition in the previous action, and the circuit court's order of January 22, 1981.

On May 7, 1981, the circuit court entered an order which provided, in pertinent part:

"It appearing to the Court that the subject matter of this proceeding is of the same subject matter as that proceeded upon by the Petitioner in a matter previously filed with the Clerk of this Court, ... and that the Court did by Order bearing date the 22nd day of January, 1981, rule that the matter was to be settled in the Court of Pennsylvania where from whence the support Order originated, which support Order is the subject matter of this Complaint, and it further appearing to the Court that by syllabus point 2 of the Supreme Court of Appeals in State ex rel. Shamblin v. Dostert, 255 S.E.2d 911 (1979), that the Supreme Court of Appeals did hold in part as follows: 'One circuit court may not directly or indirectly interfere with orders of another circuit court unless specifically provided by statute or civil rule regardless of how erroneous such orders may be,' it is therefore ORDERED and ADJUDGED that the Defendant's Motion to Dismiss is granted ...."

The appellant contends that the trial court improperly dismissed her complaint on the grounds of res judicata because there had been no prior adjudication on the question of back child support under the contract in any court; and the January 22 order of the circuit court, relied upon for dismissal, was merely a refusal to rule at all on her claim for arrearages.

The appellee responds that the first order of the circuit court was res judicata, since the question of back child support was before the court at that time, and was decided by the court's determination that the matter should be settled in the Pennsylvania courts.

"Before the principles of res judicata can be involved, there must have been an adjudication on the merits of a case." Syl. pt. 1, Rife v. Woolfolk...