COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Petty and Beales
Argued at Chesapeake, Virginia
ROY M. CARRITHERS
OPINION BY
v. Record No. 1747-11-1 JUDGE WILLIAM G. PETTY
APRIL 17, 2012
KIMBERLY A. HARRAH
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
David F. Pugh, Judge
Blanche M. Garber (Jeffrey M. Summers; BMGLAW LLC; The
Law Office of Jeffrey M. Summers, PLLC, on briefs), for appellant.
Jeffrey F. Riddle (William C. Cowardin, Jr.; Cowardin & Kim,
P.L.C., on brief), for appellee.
Appellant, Roy M. Carrithers, appeals an order of the circuit court (“trial court”) ruling
that the Juvenile and Domestic Relations District Court of the City of Newport News (“JDR
court”) had jurisdiction to enter a money judgment against him for child support arrearages,
pursuant to Code § 16.1-278.18(A). Carrithers also appeals an order of the trial court awarding
appellee, Kimberly A. Harrah, attorneys’ fees for the relevant proceedings in the trial court
below. Harrah, on her part, has moved this Court to dismiss Carrithers’ appeal for failure to
timely file his notice of appeal as required by Rule 5A:6(a). For the reasons expressed below,
we grant Harrah’s motion to dismiss this appeal. Accordingly, we do not address the merits of
Carrithers’ assignments of error.
I. BACKGROUND
The parties were divorced on May 12, 1993. The divorce decree ordered Carrithers to
pay Harrah child support for the child born during their marriage, as well as to provide and
maintain health insurance for the child and to pay all medical and dental bills not covered by that
insurance. In 2005, after the child had turned eighteen years old, Harrah filed a “Motion and
Notice of Judgment for Arrearages” in the JDR court, pursuant to Code § 16.1-278.18(A).
Finding that Carrithers had failed to pay any of the court-ordered child support and certain
medical and dental expenses, the JDR court entered a judgment on March 9, 2006 awarding
Harrah $62,096.06 plus interest.
In 2010, Carrithers moved the JDR court to reinstate the case on its docket and to vacate
its judgment entered on March 9, 2006. Carrithers argued that he had not been duly served with
Harrah’s motion for judgment for arrearages and that the JDR court therefore lacked jurisdiction
to enter its judgment against him. On December 14, 2010, the JDR court dismissed Carrithers’
motion, concluding that its “jurisdiction to enforce its support orders is continuing and therefore
is proper.”
Carrithers appealed the JDR court’s decision to the trial court, arguing that the JDR court
did not have personal jurisdiction over him because he was not properly served with Harrah’s
motion as required by Code § 16.1-278.18(A). On March 29, 2011, the trial court entered an
order (“March 29 order”) ruling that the JDR court had jurisdiction to enter its judgment of
March 9, 2006 and remanding to the JDR court all matters pertaining to child support. On the
same day, the trial court issued a letter directing the parties to file briefs regarding their motions
for attorneys’ fees and costs. On August 1, 2011, the trial court entered another order awarding
Harrah $5,825 in attorneys’ fees for the proceedings in the trial court. Carrithers filed his notice
of appeal on August 30, 2011.
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II. ANALYSIS
In her motion to dismiss Carrithers’ appeal, Harrah argues that Carrithers failed to timely
file his notice of appeal as required by Rule 5A:6(a). Based on controlling Supreme Court
precedent, we agree.
Rule 5A:6(a) provides, in part: “No appeal shall be allowed unless, within 30 days after
entry of final judgment or other appealable order or decree, . . . counsel files with the clerk of the
trial court a notice of appeal . . . .” See Code § 8.01-675.3 (providing that generally, “a notice of
appeal to the Court of Appeals in any case within the jurisdiction of the court shall be filed
within 30 days from the date of any final judgment order, decree or conviction”). “In general
terms, a final judgment is one which disposes of the entire action and leaves nothing to be done
except the ministerial superintendence of execution of the judgment.” Super Fresh Food Markets
of Va., Inc. v. Ruffin, 263 Va. 555, 560, 561 S.E.2d 734, 737 (2002); see also James v. James,
263 Va. 474, 481, 562 S.E.2d 133, 137 (2002). The question of whether a particular order is a
final judgment is a question of law that we review de novo. See Rusty’s Welding Serv., Inc. v.
Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc) (noting generally that “we
review questions of law de novo”).
In its March 29 order, the trial court ruled that the JDR court had jurisdiction to enter its
judgment of March 9, 2006 and remanded to the JDR court all matters pertaining to child
support. This ruling constituted a final judgment on the merits of Carrithers’ appeal to the trial
court from the JDR court. The “ministerial superintendence of execution of the judgment” was
transferred to the JDR court. See Super Fresh Food Markets, 263 Va. at 560, 561 S.E.2d at 737.
The only matter unresolved by the trial court’s March 29 order involved the pending requests by
both parties for attorneys’ fees and costs. The fact that the trial court did not rule on the parties’
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motions for attorneys’ fees and costs in its March 29 order does not negate the fact that the
March 29 order was indeed a final judgment on the merits of the case.
As the Supreme Court has recently reiterated:
“[W]hen a trial court enters an order, or decree, in which a
judgment is rendered for a party, unless that order expressly
provides that the court retains jurisdiction to reconsider the
judgment or to address other matters still pending in the action
before it, the order renders a final judgment and the twenty-one
day time period prescribed by Rule 1:1 begins to run.”
Johnson v. Woodard, 281 Va. 403, 409, 707 S.E.2d 325, 328 (2011) (emphasis added) (quoting
Super Fresh Food Markets, 263 Va. at 561, 561 S.E.2d at 737). The trial court’s March 29 order
contained no language retaining jurisdiction to address the parties’ pending requests for
attorneys’ fees and costs. Thus, the order “‘render[ed] a final judgment.’” Id. (quoting Super
Fresh Food Markets, 263 Va. at 561, 561 S.E.2d at 737).
The trial court’s letter of March 29, 2011, which directed the parties to file briefs
regarding their motions for attorneys’ fees and costs, did not affect the finality of the trial court’s
order entered that same day disposing of the merits of the case. The Supreme Court addressed a
similar situation in City of Suffolk v. Lummis Gin Co., 278 Va. 270, 683 S.E.2d 549 (2009). In
City of Suffolk, the trial court entered an order nonsuiting the case and stated in its order that
“[t]his suit shall remain on the docket for the Court to determine issues concerning attorney fees,
costs and expenses incurred by [certain defendants].” 278 Va. at 274, 683 S.E.2d at 551 (first
alteration in original). Over the ensuing months, the trial court received the parties’ briefs
regarding the issue of attorneys’ fees and costs, heard their oral presentations, and entered
another order, styled “Final Order,” awarding attorneys’ fees and costs to the defendants who
had requested them. Id. at 274-75, 683 S.E.2d at 551. Noting that a nonsuit order is a final
judgment, id. at 277, 683 S.E.2d at 552, the Supreme Court held that the trial court’s language in
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its nonsuit order attempting to preserve the issue of attorneys’ fees and costs was an ineffectual
attempt to avoid the strictures of Rule 1:1, id. at 277, 683 S.E.2d at 552-53.
In other words, even if an order granting a final judgment on the merits of a case contains
express language indicating that the trial court intends to rule on a request for attorneys’ fees at a
future time, such language does not negate the fact that such an order is in fact a final judgment.
The Supreme Court has held that if a trial court wishes such an order not to be a final order, it
must “includ[e] specific language [in the order rendering judgment] stating that the court is
retaining jurisdiction to address matters still pending before the court.” Johnson, 281 Va. at
409-10, 707 S.E.2d at 328; see id. at 410, 707 S.E.2d at 328 (holding that a nonsuit order was not
a final order because it expressly stated that “this Court shall retain jurisdiction of this matter to
consider any application for attorney’s fees and costs” and that “for [the] purposes of Rule 1:1,
this is not a final order” (alteration in original)); cf. Super Fresh Food Markets, 263 Va. at
562-63, 561 S.E.2d at 738-39 (holding that an order entered within twenty-one days of the entry
of final judgment was insufficient to counteract the operation of Rule 1:1 even though the order
expressly “stated that the trial court would ‘retain jurisdiction over this action . . . [to] consider
and rule on’ Super Fresh’s motion for reconsideration,” because the order did not actually
modify, vacate, or suspend the final judgment, as Rule 1:1 requires (alteration and omission in
original)). A mere indication that the trial court intends to rule on pending motions is
insufficient to negate the finality of an order rendering a final judgment on the merits of a case.
See City of Suffolk, 278 Va. at 277, 683 S.E.2d at 552-53. 1 This is particularly true where, as
1
Anything in Alexander v. Flowers, 51 Va. App. 404, 658 S.E.2d 355 (2008), or Mina v.
Mina, 45 Va. App. 215, 609 S.E.2d 622 (2005), that might suggest the contrary would be
superseded by the Supreme Court’s opinions discussed above. We express no opinion regarding
the extent to which Alexander or Mina might have been implicitly overruled by the Supreme
Court.
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here, the trial court’s intention regarding the pending motions is not even expressed in the order
rendering the final judgment.
Thus, the trial court’s letter indicating its intent to address the issue of attorneys’ fees and
costs at a future time does not mean that its March 29 order was anything other than a final order.
Since Carrithers failed to file his notice of appeal within thirty days of the March 29 order, he is
precluded from challenging anything resolved by that order in this appeal. See Rule 5A:6(a);
Hall v. Hall, 9 Va. App. 426, 428-29, 388 S.E.2d 669, 670 (1990) (holding that to appeal a
particular issue resolved by a trial court’s ruling in a final divorce decree, a party must appeal
from the decree within thirty days of its entry and is not entitled to wait until thirty days from the
entry of a subsequent equitable distribution award in a bifurcated proceeding). Hence, because
both of Carrithers’ assignments of error are premised on alleged error in the trial court’s March
29 order, his notice of appeal, filed on August 30, 2011, did not give this Court jurisdiction to
review any of the arguments he now seeks to make. 2 Therefore, we are obliged to dismiss this
appeal for lack of jurisdiction. Johnson v. Commonwealth, 1 Va. App. 510, 512, 339 S.E.2d
919, 920 (1986) (noting that “the failure to file a notice of appeal with the clerk of the trial court
within 30 days after entry of final judgment as required in Rule 5A:6(a) is jurisdictional”).
2
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, 9
Va. App. at 428, 388 S.E.2d at 670. 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.
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III. CONCLUSION
For the foregoing reasons, we grant Harrah’s motion to dismiss this appeal.
Dismissed.
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