Whitaker v. Day

• Decision Date: 11 July 2000
• Docket Number: Record No. 0640-99-2.
• Citation: Whitaker v. Day, 32 Va. App. 737, 530 S.E.2d 924 (Va. App. 2000)
• Parties: Christopher L. WHITAKER v. Robin L. DAY and Emilie Mills and Kristen Mills, Infants, by their Guardian Ad Litem.
• Court: Virginia Court of Appeals

530 S.E.2d 924

32 Va. App. 737

Christopher L. WHITAKER v.Robin L. DAY and Emilie Mills and Kristen Mills, Infants, by their Guardian Ad Litem.

Record No. 0640-99-2.

Court of Appeals of Virginia, Richmond.

July 11, 2000.

John H. Goots(Chalkley & Witmeyer, L.L.P., on brief), Ashland, for appellant.

No brief or argument for appelleeRobin L. Day.

Jennifer C. Hollar, Guardian ad litem(Berkeley & Hollar, on brief), Richmond, for appelleesEmilie Mills and Kristen Mills, infants.

Present: BENTON and HUMPHREYS, JJ., and OLITSKY,¹ Retired Judge.

BENTON, Judge.

This proceeding began in the juvenile and domestic relations district court with a petition against Christopher L. Whitaker to establish paternity and child support, filed on behalf of infants, Emilie and Kristen Mills, by their guardian ad litem.Following an appeal to the circuit court, the trial judge overruled Whitaker's plea of res judicata, ordered blood testing to determine paternity, and remanded the proceeding to the juvenile court.Whitaker appeals from that order and contends the trial judge erred in ruling that the petition was not barred by res judicata.Because the trial court's interlocutory order neither adjudicates the principles of the cause nor involves an order granting, dissolving or denying an injunction, we dismiss the appeal.

I.

The guardian ad litem filed this action on behalf of the two infant children in 1997 in the juvenile court and served as respondents the children's mother, Robin Day, and Whitaker, who is alleged to be their father.Although the petition was styled In re: Emilea Mills and Kristin Mills,the juvenile court docketed the matter as Robin Lynn Day v. Christopher Whitaker, In re: Emilea Mills and Kristen Elizabeth Mills.Day appeared in court but filed no pleadings and apparently has had no attorney of record throughout these proceedings.Whitaker was represented by an attorney.The children were represented by their guardian ad litem, an attorney.

Whitaker sought to have the petition dismissed, alleging that the proceeding was barred by res judicata.The juvenile court judge denied the motion to dismiss and ordered blood tests as requested by the petition.On appeal to the circuit court, this matter was styled Day v. Whitaker, In re: Emilea S. Mills and Kristin E. Mills.After receiving memoranda and hearing arguments of counsel, the trial judge denied Whitaker's plea of res judicata and motion to dismiss.²The trial judge entered an order, which provides in pertinent part as follows:

This day appeared Robin L. Day in person, the defendant, Christopher L. Whitaker in person and by his attorney, ... and the children, Emilie S. Mills and Kristin E. Mills by their guardian ad litem,...; this being a petition to establish paternity and an appeal of the order ordering the blood test.

And the Court having considered the argument of counsel for [Whitaker], that the ordering of a blood test is barred by the plea of res judicata, and the Court having considered the motion, denies the motion to which action the defendantChristopher Whitaker, objects.

Accordingly the aforesaid blood test is ORDERED and this matter is remanded to the Henrico Juvenile and Domestic Relations District Court.

Whitaker appeals from this order and contends the trial judge erred in ruling that the petition to establish paternity and support was not barred by res judicata.

II.

Pertinent to the jurisdiction of this Court, we have ruled as follows:

This Court has appellate jurisdiction over final decrees of a circuit court in domestic relations matters arising under Titles 16.1 or 20, and any interlocutory decree or order involving the granting, dissolving, or denying of an injunction or "adjudicating the principles of a cause."Code§ 17.1-405(3)(f) and (4), recodifying Code§ 17-116.05(3)(f) and (4).A final decree is one "which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court."Erikson v. Erikson,19 Va. App. 389, 390, 451 S.E.2d 711, 712(1994)(internal quotation marks and citations omitted).

Wells v. Wells,29 Va.App. 82, 85-86, 509 S.E.2d 549, 551(1999).

The petition that commenced this proceeding seeks an order requiring genetic or appropriate blood tests, a ruling adjudicating paternity, and an award of support for the children.Based upon the written memoranda and arguments of counsel, the trial judge determined only that the plea of res judicata did not bar this proceeding and that testing should proceed.The trial judge did not adjudicate paternity or award support.

A ruling denying a motion to dismiss, which alleges that the action is barred by principles of res judicata, is interlocutory and, therefore, is not ripe for appeal.SeeCountry Club of Johnston County, Inc. v. United States Fidelity and Guaranty Co.,135 N.C.App. 159, 519 S.E.2d 540, 546(1999)(holding that "denial of a motion for summary judgment based upon the defense of res judicata may involve a substantial right so as to permit immediate appeal only `where a possibility of inconsistent verdicts exists if the case proceeds to trial'");State ex rel. Thomas v. Mixon,674 So.2d 611, 612(Ala. Civ.App.1995)(reversing for lack of jurisdiction a trial judge's granting of a motion to dismiss on res judicata grounds because "Mixon improperly appealed from [a juvenile court's] interlocutory order");Smith v. Union Bank & Trust Co.,653 So.2d 933, 934(Ala.1995)(permitting an appeal although recognizing that it arises "from [an] interlocutory order denying a dismissal" on res judicata grounds);See alsoE.E.O.C. v. Federal Reserve Bank of Richmond,698 F.2d 633, 674(4th Cir.1983)(noting that, under federal statutes, when a trial judge enters an order denying a motion to dismiss the action, which alleges a bar of res judicata, an interlocutory appeal may proceed upon an appropriate certification).When the trial judge refused to dismiss this case and remanded the matter to the juvenile court, the trial judge "did not resolve any factual or legal issues concerning the merits of the [case]."Canova Elec. Contracting, Inc. v. LMI Ins. Co.,22 Va.App. 595, 600, 471 S.E.2d 827, 830(1996).The order merely denied Whitaker's motion to dismiss and remanded the matter to the juvenile court for further action.This order is, therefore, not a final decree "`which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court.'"Wells,29 Va.App. at 85-86,509 S.E.2d at 551(citation omitted).

Furthermore, the order did not adjudicate "the principles of a cause."Code§ 17.1-405(4), recodifying Code§ 17-116.05(4).An interlocutory decree adjudicates the principles of a cause when "`the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to...