COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
FREDERICK SYLVESTER HIRD, JR.
MEMORANDUM OPINION * BY
v. Record No. 0892-99-4 JUDGE CHARLES H. DUFF
MARCH 21, 2000
MARGARET JANE CRYOR GAYNOR
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
William B. Cummings (William B. Cummings,
P.C., on briefs), for appellant.
Edward V. O'Connor, Jr. (Byrd Mische P.C., on
brief), for appellee.
Frederick Sylvester Hird, Jr. appeals the decision of the
circuit court holding that Margaret Jane Cryor Gaynor was not
required to pay him accrued interest following the equitable
distribution award entered by the trial court in 1994. We find
that the trial court did not err when it ruled that this issue was
previously addressed in an earlier decision by this Court. Under
the doctrines of res judicata and the law of the case, this matter
may not be raised again on a subsequent appeal. Accordingly, we
affirm the decision of the trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
PROCEDURAL HISTORY
This is the eleventh appeal filed by these parties arising
from their divorce and the equitable distribution of their marital
property. Gaynor filed her bill of complaint in 1984. The trial
court entered a decree of divorce on October 28, 1985, and the
Initial Decree of Equitable Distribution on October 29, 1986.
Gaynor appealed the equitable distribution award and, in 1988, we
found that the trial court erred by failing to specify the amount
of the monetary award. See Gaynor v. Hird, No. 1393-86-4 (Va. Ct.
App. Oct. 4, 1988). In that opinion, we stated:
A monetary award must state the amount which
must be paid to satisfy it. A monetary
award must be "payable either in a lump sum
or over a period of time in fixed amounts."
Code § 20-107.3. It is equivalent to a
money judgment and must be satisfied in the
same manner. Brown v. Brown, 5 Va. App.
238, 246, 361 S.E.2d 364, 368 (1987).
Id. at 1-2. In 1991, we held that the trial court was required
to apply the version of Code § 20-107.3 that was in effect at
the time this matter was filed in 1984. See Gaynor v. Hird, 11
Va. App. 588, 590-93, 400 S.E.2d 788, 789-90 (1991). Unlike the
current version of Code § 20-107.3, the version of Code
§ 20-107.3 in effect at the time this case commenced did not
expressly authorize or prohibit the application of Code
§ 8.01-382, requiring interest on judgments, to monetary awards.
In a subsequent appeal, we ruled that the trial court erred
when it failed to award Gaynor the fair market rental value of
- 2 -
her one-half interest in the marital residence. We stated that
"[a]ny award in her favor shall bear interest from the time it
is due." Gaynor v. Hird, 15 Va. App. 379, 382, 424 S.E.2d 240,
242 (1992). 1
Following a hearing on remand, the trial court, on April
19, 1994, ordered "that judgment [for Hird] is entered in the
amount of $136,081.43 [plus accruing interest at $6.891 per day
until entry of this judgment] and shall be entered on the docket
of the Circuit Court, to be reduced by $130,000 when the escrow
payment is made." Gaynor appealed this order, as well as two
other orders entered by the trial court.
We issued three separate opinions on August 1, 1995. In
Gaynor v. Hird, No. 0927-94-4 (Va. Ct. App. Aug. 1, 1995), we
addressed Gaynor's appeal of the trial court's April 19, 1994
order awarding interest to Hird. She argued that the applicable
version of Code § 20-107.3
did not provide for the rendering of a
judgment for a monetary award. Only much
later did the legislature provide for a
monetary award to be classified as a
judgment. No mention was made at the
November 23, 1993 hearing of a request for
interest in these items, yet now an award is
made to Hird. There is no basis in the
record for this award. Consequently, the
issue was not before the trial court and
such an award cannot stand.
1
In Gaynor v. Hird, No. 1113-93-4 (Va. Ct. App. Apr. 26,
1994), we ruled that there was no merit to Gaynor's claim that
the trial court erred in bifurcating the settlement of the
allotment from the accounting of rent she was due.
- 3 -
We held that Hird was not entitled to any prejudgment interest
arising from 1986. Gaynor, No. 0927-94-4, slip op. at 7. We
also ruled that "the amount that equalized the division of the
marital personal property was not a separately due and payable
award, and it was error to treat it as such." Id. at 8. We
then stated: "Additionally, the version of Code § 20-107.3(D)
in effect when this case was filed does not provide that a
monetary award is a judgment and that the interest of provisions
of Code § 8.01-382 apply." Id.
In Gaynor v. Hird, No. 1227-94-4 (Va. Ct. App. Aug. 1,
1995), we found that the trial court erred when it ruled that
Gaynor was entitled to one-half the rental value of the former
marital residence occupied exclusively by Hird, but was required
to reimburse Hird for all mortgage, taxes and insurance expenses
he paid. We held that Gaynor, as a co-tenant not in possession,
was entitled to one-half the monthly rental value of $2,000 for
the period October 1, 1985 to June 29, 1993, reduced by one-half
the mortgage and taxes paid by Hird, and including credits for
any expenses previously paid by Gaynor. We also directed the
trial court to include an award of "interest, at the legal rate
of interest, on the monthly amount accruing from October 1, 1985
[the date of divorce]." 2
2
The third opinion in Record No. 0928-94-4 issued on August
1, 1995 remanded the determination of costs incurred by Hird in
connection with a proceeding to partition the property and is
- 4 -
During the hearing on remand, the trial court and the
parties explicitly discussed the question of interest payable to
Hird based upon our ruling in Gaynor, No. 0927-94-4. In its
order entered September 23, 1996, the trial court held that
based upon our decision in No. 0927-94-4, it could not award
Hird amounts attributable to interest. Gaynor subsequently
appealed this order, which was affirmed in all respects in our
decision of June 9, 1998. 3
By motions filed in February 1999, Hird sought to recover
certain costs, including interest accrued since the 1994
judgment. By order entered March 26, 1999, the trial court
found that "the Court of Appeals of Virginia addressed the issue
of the award of interest on the equitable distribution award in
this case in the Court's written opinion in Record No. 0927-94-4
issued August 1, 1995," and "based upon the written opinion" of
this Court, "no interest can be awarded to [Hird] on the
equitable distribution monetary award." Hird appealed the trial
court's ruling.
ANALYSIS
The trial court correctly ruled that our previous decisions
precluded Hird from recovering interest on the equitable
not directly relevant to the issue raised in the immediate
appeal.
3
This opinion consolidated Gaynor's appeals in Record Nos.
1224-97-4, 1841-97-4, and 1907-97-4.
- 5 -
distribution monetary award. The doctrines of res judicata and
the law of the case bind us to the language of our previous
decisions.
Hird contends that our 1988 decision in Gaynor, No.
1393-86-4, required the payment of accrued interest. He
overstates our holding in that decision. We found that the trial
court erred by failing to specify the amount of the monetary
award, stating that "[a] monetary award . . . is equivalent to a
money judgment and must be satisfied in the same manner." Id.
at 1-2. Hird, citing Code § 8.01-382 and Dairyland Ins. Co. v.
Douthat, 248 Va. 627, 449 S.E.2d 799 (1994), extrapolates from
this statement that "it followed automatically that interest
accrued on the judgment from the date of entry." As noted
earlier, the version of Code § 20-107.3 in effect at the time
this case commenced did not expressly authorize, or prohibit,
the application of Code § 8.01-382, requiring interest on
judgments, to monetary awards.
Furthermore, on remand of our decision in Gaynor,
No. 0927-94-4, the trial court relied on that decision when it
entered its decree on September 23, 1996. The transcript of the
September 23, 1996 hearing demonstrates that the parties
expressly referred to and discussed our opinion in
No. 0927-94-4. Based upon its reading of that opinion, the
trial court denied Hird's request for interest on the 1994
equitable distribution award. Hird did not appeal that decree,
- 6 -
which was affirmed by opinion of this Court on June 9, 1998.
Thus, for the purposes of this proceeding, the issue was
resolved and the parties are precluded from revisiting that
issue again. It is final for purposes of this case. See
generally Highsmith v. Commonwealth, 25 Va. App. 434, 443, 489
S.E.2d 239, 243 (1997).
A judgment on the merits, fairly rendered,
by a court of competent jurisdiction, having
cognizance both of the parties and the
subject matter, however erroneous it may be,
is conclusive on the parties and their
privies until reversed or set aside in a
direct proceeding for that purpose, and it
is not amenable to collateral attack.
8B Michie's Jurisprudence, Former Adjudication or Res Judicata
§ 10 (1996) (citations omitted).
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
- 7 -