COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
NORVELL WINSTON WEST, III
OPINION BY
v. Record No. 0448-11-3 JUDGE ROBERT P. FRANK
DECEMBER 13, 2011
JILL ANGELA WEST
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Michelle C. F. Derrico (Copenhaver, Ellett & Derrico, on briefs), for
appellant.
Vicki L. Wiese (Wiese Law Firm, PLC, on brief), for appellee.
Norvell W. West, III, appellant/husband, appeals from the rulings of the circuit court in
his divorce case. Appellant first assigns error to the trial court’s ruling that a pending mandate of
the Court of Appeals restricted or prevented its consideration of, and jurisdiction over,
modifications of spousal support and child support. Appellant next argues the trial court erred
when it found it had no authority to modify spousal support and child support because no formal
order granting reinstatement of the case was entered. Finally, appellant contends the trial court
abused its discretion when it voided all interlocutory orders without cause. For the reasons
stated, we affirm in part and reverse in part.
BACKGROUND
On November 15, 2007, the Roanoke Circuit Court entered a final decree of divorce in
this case. The case was appealed, and on December 16, 2008, this Court remanded the case to
the circuit court to recalculate child support. On March 4, 2009, the Supreme Court of Virginia
issued an order dismissing the petition for lack of jurisdiction.
During the pendency of the remand, both parties filed motions to modify the final order,
based upon a change in circumstances. Speaking from the bench on December 15, 2009, the trial
court terminated appellant’s child support obligation, retroactive to November 1, 2009. On the
same date, the trial court also established a child support obligation for appellant from November
2007 through December 2008. Those pronouncements were never reduced to writing. By order
of May 27, 2010, the trial court suspended spousal support payments, effective May 1, 2010,
until the case could be heard on the merits. 1
On July 26, 2010, the presiding judge recused himself, and a new judge was appointed.
On December 16, 2010, the judge held that the mandate from the Court of Appeals prohibited
him from considering any issues not specifically contained in that mandate. The judge also
indicated that he lacked jurisdiction because of the lack of an order reinstating the case to the
active docket. Finally, the judge vacated all orders entered after the Court of Appeals remand,
finding that they were entered without jurisdiction, or in the alternative, that they were
interlocutory and subject to correction.
This appeal follows.
ANALYSIS
Appellant first contends the trial court erred in ruling that a pending mandate of this
Court restricted its consideration of, and jurisdiction over, modifications to spousal support and
child support pursuant to Code §§ 20-108 and 20-109. Essentially, appellant argues the trial
1
The court never held a hearing on the merits.
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court erred in ruling that the mandate 2 of this Court in West v. West, 53 Va. App. 125, 669
S.E.2d 390 (2008), barred it from addressing modification of child and spousal support.
It is self-evident that while the opinion of an appellate court, under
the doctrine of stare decisis, applies to all future cases in the trial
courts, the mandate, which is the directive of the appellate court
certifying a judgment in a particular case to the court from which it
was appealed, speaks only to that case. Moreover, the mandate is
controlling only “as to matters within its compass.” Sprague v.
Ticonic National Bank, 307 U.S. 161, 168 (1939). Thus, while the
directive of this Court’s mandate binds the circuit court, that court
is not thereby prohibited from acting on matters not constrained by
the language of the mandate, construed in light of the appellate
court’s opinion. The mandate rule is “merely a ‘specific
application of the law of the case doctrine,’ [and] in the absence of
exceptional circumstances, it compels compliance on remand with
the dictates of a superior court and forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (quoting United States
v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).
Powell v. Commonwealth, 267 Va. 107, 128, 590 S.E.2d 537, 550 (2004).
In Sprague, the issue before the United States Supreme Court was whether an earlier
remand by that Court allowed the district court to award fees and costs. The district court ruled
the mandate of the Supreme Court did not allow such an award. Sprague, 307 U.S. at 163.
Finding its earlier mandate did not bar the district court from an award of fees and costs, the
Supreme Court reviewed the power of federal courts in equity suits to allow fees and costs. The
2
In West v. West, 53 Va. App. 125, 669 S.E.2d 390 (2008), this Court concluded:
[T]he trial court erred in its determination of child support under
the statutory guidelines by failing to calculate the amount of
support using father’s actual gross income at the time of the entry
of the final decree of divorce and its award to mother of spousal
support of $500 monthly. Accordingly, we reverse its award of
child support, and remand for recalculation of the parties’
respective child support obligations, taking into account each
party’s income from all sources at the time of the final decree.
Id. at 137, 669 S.E.2d at 396.
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Supreme Court considered whether such an award “was disposed of in the main litigation and
therefore foreclosed by the mandate.” Id. at 168.
In that context, the Supreme Court concluded that the claim “was not directly in issue in
the original proceedings by Sprague. It was neither before the Circuit Court of Appeals nor
before this Court.” Id. The Court opined:
We, therefore, hold that the issue in the instant case is sufficiently
different from that presented by the ordinary questions regarding
taxable costs that it was impliedly covered neither by the original
decree nor by the mandates, and that neither constituted a bar to
the disposal of the petition below on its merits.
Id. at 169.
United States v. Bell, 5 F.3d 64 (4th Cir. 1993), also addressed the scope of a trial court’s
authority on remand. In an earlier opinion, the Fourth Circuit vacated Bell’s sentence and
remanded the case to the district court for re-sentencing within the guidelines. On remand, the
district court vacated Bell’s guilty plea and dismissed the indictment. In finding that the district
court, on remand, had no authority to dismiss the indictment, the Fourth Circuit acknowledged
that the Sprague doctrine as to the mandate of a higher court was one of the most firmly
established legal precepts. The Court noted:
[I]t is indisputable that a lower court generally is bound to carry
the mandate of the upper court into execution and [may] not
consider the questions which the mandate laid at rest. Because this
“mandate rule” is merely a specific application of the law of the
case doctrine, in the absence of exceptional circumstances, it
compels compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or impliedly
decided by the appellate court. In addition, the rule forecloses
litigation of issues decided by the district court but foregone on
appeal or otherwise waived, for example because they were not
raised in the district court. Thus, when this court remands for
further proceedings, a district court must, except in rare
circumstances, implement both the letter and spirit of the . . .
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mandate, taking into account [our] opinion and the circumstances it
embraces.
Bell, 5 F.3d at 66-67 (internal quotations and citations omitted).
Our decision in Hart v. Hart, 35 Va. App. 221, 544 S.E.2d 366 (2000), is instructive as to
the authority of the trial court to decide issues beyond the scope of the remand. In the first
appeal, Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998), we remanded the case to the trial
court solely to reallocate the parties’ responsibilities for maintenance costs for two easements.
On remand, in addition to the maintenance costs, the trial court clarified the extent, width, and
other parameters of the easements. On appeal, we concluded the trial court exceeded its
authority in amending the description of the easements. We held:
[T]he court’s “clarification” of the easement definition
impermissibly exceeded the scope of its remand jurisdiction.
Searles’ Adm’r v. Gordon’s Adm’r, 156 Va. 289, 294-99, 157 S.E.
759, 761-62 (1931); Krise v. Ryan, 90 Va. 711, 712-13, 19 S.E.
783, 783-84 (1894); Kaufman v. Kaufman, 12 Va. App. 1200,
1207-10, 409 S.E.2d 1, 5-7 (1991). Wife never appealed the grant
of the easement or its scope; therefore, we did not consider that
issue on appeal. We remanded the easement issue for the explicit
purpose of reallocating the parties’ responsibilities for the
maintenance costs of the easements. “Clarification” of the scope
of the easement was not necessary to the maintenance issue, nor
did the court clarify the definition for that purpose. Indeed, the
court in its order indicated that the issues were independent and
that it was considering the easement scope issue “in addition” to
the “specific remand issue.”
Wife had twenty-one days to seek “clarification” or modification
of the easement scope or to appeal the court’s final order on that
issue. However, wife failed to do so, therefore, the order became
final, and the trial court lacked jurisdiction to alter the easement
definition.
Hart, 35 Va. App. at 231, 544 S.E.2d at 371.
There, the trial court exceeded the scope of the remand by revisiting an issue that had
been decided in the final decree, i.e. the extent of the easement. That issue had not been
appealed and was a final determination.
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Thus, the “mandate rule” forecloses in the remand relitigation of matters decided
expressly or impliedly by the appellate court and relitigation of matters addressed by the trial
court, but not addressed on appeal. 3 Issues in controversy that were not disposed of in the
original decree are beyond the scope of the “mandate rule.” See Sprague, 307 U.S. at 168.
In Hart, the scope of the easement was disposed of in the trial court and not appealed,
barring the trial court from relitigating that issue. In Sprague, the assessment of fees and costs
was not part of the Supreme Court’s mandate and was therefore properly considered by the
district court.
In the instant case, on December 16, 2008, this Court affirmed the trial court’s ruling on
spousal support. We then found the trial court erred in not using the father’s current income in
computing child support. We concluded, “[a]ccordingly, we reverse the trial court’s award of
$200 monthly in child support to mother and remand for recalculation using the parties’
respective incomes at the time of the final decree.”
Appellant’s motion to modify child support, filed September 24, 2009, alleged that 1) the
eldest daughter had become emancipated; 2) the youngest child refused to live with mother; and
3) mother’s financial situation had improved significantly. Mother’s motion to modify spousal
3
The latter addresses the “law of the case” doctrine.
Pursuant to the “law of the case” doctrine, when a party fails to
challenge a decision rendered by a court at one stage of litigation,
that party is deemed to have waived her right to challenge that
decision during later stages of the “same litigation.” The “law of
the case” doctrine applies both to issues that were actually decided
by the court, and also to issues necessarily involved in the first
appeal, whether actually adjudicated or not.
Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26, 661 S.E.2d 822, 826 (2008) (internal quotations
and citations omitted).
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and child support, filed February 7, 2008, alleged that appellant had had a significant increase in
income.
While child support was the subject of the remand, neither party on remand asked the
trial court to relitigate the original amount of child or spousal support. Each claimed a change of
circumstances that occurred after the final decree. The “mandate rule” does not apply to a
modification of child and spousal support, when the change of circumstances did not exist at the
time of the order initially appealed, nor was the subject of the order appealed. Neither party in
this case asked to relitigate the same issue originally before the trial court, nor any issue subject
to the mandate.
Our decision in Rowe v. Rowe, 33 Va. App. 250, 532 S.E.2d 908 (2000), underscores
that the “law of the case” doctrine does not apply to a change in circumstances occurring after
the judgment appealed. “Where material facts have changed between the first appeal and the
second, the law of the case doctrine is inapplicable.” Id. at 266, 532 S.E.2d at 916.
We therefore conclude the trial court erred in ruling it had no jurisdiction to hear the
motions for modification of child and spousal support.
Appellant next argues the trial court erred when it found it had no authority to modify
spousal support and child support, because no formal order granting reinstatement of the case
was entered.
However we are precluded from considering this argument by Rule 5A:18, which states
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.”
Appellant failed to object to the trial court’s ruling regarding reinstatement of the case to
the active docket. He cannot now assign error to the trial court’s action.
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This argument is further barred by Rule 5A:20(c), which requires the appellant’s opening
brief to contain “[a] statement of the assignments of error with a clear and exact reference to the
page(s) of the transcript, written statement, record, or appendix where each assignment of error
was preserved in the trial court.” Appellant cites pages 45, 95, 112, and 113 of the appendix to
show that he preserved this argument. We have reviewed those pages and fail to see where
appellant preserved his argument. Further, it is not the function of this Court to “search the
record for error in order to interpret the appellant’s contention and correct deficiencies in a
brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
We therefore decline to address this issue.
Appellant next contends the trial court erred when it vacated all interlocutory orders
without cause. 4 This argument presupposes the trial court needs to show cause for its actions. In
vacating these orders sua sponte, the trial court, in its order of January 12, 2011, stated:
All of the orders entered in this cause since it was reopened and
reinstated on the docket in order to comply with the mandate of
Court of Appeals are null and void as they were entered without
jurisdiction, or in the alternative are interlocutory and hereby
vacated, except for the recusal order of the trial court judge dated
July 26, 2010 and except for the custody order in a Juvenile and
Domestic Relations District Court de novo appeal dated August 13,
2009, which order is corrected as set forth herein below.
We will only address the trial court’s alternative ruling.
In its rationale for vacating the interlocutory orders, the trial court cited Freezer v. Miller,
163 Va. 180, 197, 176 S.E. 159, 165 (1934). In Freezer, the Supreme Court of Virginia stated
that “an interlocutory judgment or decree made in the progress of a cause, is always under the
4
It is notable that neither the trial court nor counsel set forth which interlocutory orders
were vacated, but we need not review each order. Appellant makes no argument that any of the
orders were not interlocutory. His assignment of error is limited to whether the trial court had
cause to vacate the interlocutory orders.
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control of the court until the final decision of the suit, and it may be modified or rescinded, upon
sufficient grounds shown, at any time before final judgment.” Id.
Appellant argues that Freezer was limited by the Supreme Court of Virginia several
months after it was decided, by Kirn v. Bembury, 163 Va. 891, 178 S.E. 53 (1935). In Kirn, the
trial court set aside the jury’s verdict as being inadequate and impaneled a jury to ascertain the
proper damages. The Supreme Court of Virginia characterized the jury’s verdict as interlocutory
and established criteria to determine whether the motion to vacate would be granted. In this
context, the Supreme Court of Virginia held: “Usually, such motions are based upon error
apparent on the face of the record or for the purpose of introducing after discovered evidence.”
Id. at 901, 178 S.E. at 56. The law, however, is quite different when the interlocutory order is a
temporary determination of support, custody or visitation.
In a domestic relations context, we held in Pinkard v. Pinkard, 12 Va. App. 848, 407
S.E.2d 339 (1991), that “the matter of pendente lite support remains within the control of the
court and the court can change its mind while the matter is still pending before it.” Id. at 853,
407 S.E.2d at 342 (citing Freezer, 163 Va. at 197 n.2, 176 S.E. at 165 n.2); see also Robbins v.
Robbins, 48 Va. App. 466, 474, 632 S.E.2d 615, 619 (2006). By its very nature, a pendente lite
decree is temporary in nature and does not permanently resolve support issues. We conclude
from the plain language of Pinkard that the court need not express any basis for its action
regarding the interlocutory orders. Thus, we conclude that Kirn does not apply to the facts in
this case.
We conclude the trial court acted within its sound discretion when it vacated the
interlocutory orders. Under Pinkard, it need not express any basis for vacating the interlocutory
orders. All of the vacated orders were either procedural or temporary in nature, and did not
permanently determine any of the issues raised.
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Finally, appellee asks for an award of her attorney’s fees and costs associated with this
appeal, arguing that appellant’s appeal is frivolous. We disagree. As we are reversing this
judgment in part, we cannot say that appellant’s appeal is entirely without merit. See generally
Miller v. Cox, 44 Va. App. 674, 688, 607 S.E.2d 126, 133 (2005). We therefore decline to award
appellate attorney’s fees.
CONCLUSION
The trial court erred in holding that it lacked jurisdiction to consider the parties’ motions
to modify spousal and child support based on a change in circumstances. We will remand the
case to the trial court to consider whether there are current changes in condition and recalculate
child and spousal support if warranted. The trial court did not abuse its discretion when it found
the interlocutory orders to be void, and we find no error. We decline to award appellate
attorney’s fees.
Affirmed in part,
reversed in part,
and remanded.
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