COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Athey and Senior Judge Clements
UNPUBLISHED
MONICA MARIE FRITZ
MEMORANDUM OPINION*
v. Record No. 1624-19-3 PER CURIAM
FEBRUARY 4, 2020
BRIAN JOSEPH FRITZ
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
(Sherwin John Jacobs, on brief), for appellant. Appellant
submitting on brief.
No brief for appellee.
Appellant, Monica Marie Fritz, by counsel, appeals an order dismissing her complaint
alleging that appellee, Brian Joseph Fritz, breached a mediated agreement to pay child support.
Appellant argues that the circuit court erred in dismissing her complaint because the circuit court
never acquired subject matter jurisdiction over the child custody, visitation, and child support
matters in the divorce action and could not remand them to Rockingham County Juvenile and
Domestic Relations District Court (the JDR court). Upon reviewing the record and briefs of the
parties, we conclude that the circuit court did not err. Accordingly, we affirm the decision of the
circuit court.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Tidwell v. Late, 67 Va. App. 668, 673 (2017) (quoting Niblett v. Niblett, 65 Va. App. 616, 622
(2015)).
The parties married on August 23, 2002, and separated on May 15, 2015. The parties
have four children, and on January 19, 2016, entered into a “Memorandum of Agreement” (the
agreement), which provided, in part, that appellee would pay $540 per month in child support to
appellant. The parties also agreed to present the agreement to “the court for affirmation,
ratification and incorporation in its entirety in any divorce proceeding that may be instituted.”
On January 17, 2018, appellant filed, pro se, a complaint for divorce with the circuit
court. The complaint for divorce stated that the custody, visitation, and child support matters had
“been addressed in an Order dated 2-3-16” from the JDR court and included case numbers from
the JDR court. Appellant asked that “the provisions of custody, visitation and support contained
in the Order dated 2-3-16 from the Juvenile and Domestic Relations Court for Rockingham
County . . . [b]e affirmed and jurisdiction over these matters shall remain with that Court.” The
complaint did not mention the agreement.
On May 1, 2018, the circuit court entered a final decree of divorce. After conducting an
ore tenus hearing, the circuit court found that “[i]ssues of custody, support and visitation have
been addressed in a February 3, 2016 Order of [the JDR court].” The circuit court ordered that
all custody, visitation, and child support matters were transferred to the JDR court “as the more
appropriate forum having jurisdiction for the enforcement of the orders of this Court, or for the
modification or revision thereof as the circumstances may require.” The final decree did not
reference or incorporate the agreement.
On January 2, 2019, appellant filed a complaint in the circuit court alleging that appellee
had not paid child support as agreed to under the agreement. Appellant admitted that neither
party presented the agreement to the circuit court for incorporation into the final decree of
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divorce. She also acknowledged that on October 15, 2018, she had filed a petition for child
support in the JDR court. Appellant argued that appellee breached the agreement and owed her
child support, plus interest, from January 2016 through October 15, 2018. In addition, she
requested damages and attorney’s fees and costs.
Appellee, acting pro se, filed an answer to the complaint and a motion to dismiss. The
parties appeared before the circuit court on February 4, 2019, and the circuit court questioned
whether “it still had jurisdiction over this matter because the divorce decree . . . transferred all
matters involving child support back to the lower court.”1 The circuit court indicated that it “was
inclined to think” that it did not have jurisdiction, but allowed the parties to brief the issue.
Appellant subsequently submitted a memorandum of law. On March 4, 2019, the parties
appeared before the circuit court for a ruling on appellee’s motion to strike, which the circuit
court granted.2
At the request of appellant’s counsel, the circuit court issued a letter opinion on April 9,
2019, to explain its ruling. The circuit court found that appellant “falsely asserted that support
for the parties’ minor children [was] addressed in an order from [the JDR court].” The circuit
court further found that appellant “expressly testified [in the divorce matter] that she desired that
all matters pertaining to custody, visitation, child support and the future modification thereof be
referred to the JDR [c]ourt for enforcement, revision, or modification.” The circuit court relied
on appellant’s representations and entered the final decree of divorce. The parties stipulated in
the current matter that the JDR court had not entered a support order as previously stated.
Appellant filed a petition for child support after the entry of the final decree of divorce, and the
child support matters were pending in the JDR court at the time of the circuit court hearing. The
1
The record does not include a transcript of the February 4, 2019 hearing.
2
The record does not include a transcript of the March 4, 2019 hearing.
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circuit court “declined to exercise concurrent jurisdiction” and dismissed, without prejudice,
appellant’s complaint. The circuit court entered an order memorializing its ruling on April 25,
2019. Appellant timely noted her appeal.
On May 30, 2019, appellant timely filed a written statement of facts and mailed a copy to
appellee. The statement of facts was not signed by the trial judge. In Proctor v. Town of
Colonial Beach, 15 Va. App. 608 (1993) (en banc), we set forth the obligations of litigants and
trial judges concerning the filing and handling of a written statement of facts.
Rule 5A:8(c) states that a written statement becomes a part of the
record when (1) it is filed in the office of the clerk of the trial court
within fifty-five days after entry of judgment, (2) a copy of the
statement is mailed or delivered to opposing counsel along with a
notice that the statement will be presented to the trial judge
between fifteen and twenty days after filing, and (3) the trial judge
signs the statement and the signed statement is filed in the office of
the clerk.
Id. at 610.
“[O]nce the appellant has complied with the first two elements of Rule 5A:8(c), he or she
has established prima facie compliance with the requirements of the rule.” Id. Here, appellant
timely filed her written statement of facts, but she did not include the requisite notice to appellee
that the statement would be presented to the trial judge “no earlier than 15 days nor later than 20
days” after its filing. Rule 5A:8(c)(1). Because appellant “has not established prima facie
compliance, we hold that a remand for compliance by the trial judge is inappropriate.
Consequently, the statement of facts is not ‘a part of the record.’” Clary v. Clary, 15 Va. App.
598, 600 (1993) (en banc) (quoting Mayhood v. Mayhood, 4 Va. App. 365, 369 (1987)).
In light of our determination that the statement of facts is not a part of the record, we
must consider whether a transcript or statement of facts is indispensable to a determination of the
assignment of error raised on appeal. See id.; Anderson v. Commonwealth, 13 Va. App. 506,
508-09 (1992); Turner v. Commonwealth, 2 Va. App. 96, 99-100 (1986). Appellant argues that
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the circuit court erred in dismissing her complaint because the circuit court never acquired
subject matter jurisdiction over the child custody, visitation, and child support matters in the
divorce action and could not remand them to the JDR court. We find that a transcript or
statement of facts is not indispensable to a review of appellant’s assignment of error.
The circuit court found that appellant “falsely asserted” during the divorce matter that the
JDR court had entered a child support order. It also found that appellant had asked the circuit
court to refer all custody, visitation, and child support matters to the JDR court. The circuit court
relied on appellant’s assertions when it entered the final decree of divorce transferring the
custody, visitation, and child support matters to the JDR court “for the enforcement of the orders
of this Court, or for the modification or revision thereof as the circumstances may require.”
Appellant subsequently filed a complaint for breach of contract with the circuit court and
argued that appellee owed her child support under the agreement. She argued that the circuit
court “had no legal authority” to transfer the custody, visitation, and child support matters to the
JDR court for enforcement, modification, or revision. Appellant contends that “the pleadings in
the divorce action did not confer upon [the circuit court] any jurisdiction over any matters
involving support, thereby making the language in the decree of divorce . . . remanding those
issues back to [the JDR court] a nullity and of no force and effect.” She further argued that even
if the circuit court had jurisdiction, it remanded the custody, visitation, and child support matters
for enforcement, modification, and revision, but there were no support orders to remand and
“[o]ne cannot transfer something that one does not have.”
We find that appellant has taken inconsistent positions in the proceedings and that
judicial estoppel applies to this matter. “Judicial estoppel is an equitable doctrine designed to
prevent litigants from ‘playing fast and loose with the courts . . . or blowing hot and cold
depending on perceived self-interest.’” D’Ambrosio v. Wolf, 295 Va. 48, 58 (2018) (quoting
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Wooten v. Bank of Am., N.A., 290 Va. 306, 310 (2015) (internal citation omitted)). “The
‘fundamental’ requirement for its application is that ‘the party sought to be estopped must be
seeking to adopt a position [of fact] that is inconsistent with a stance taken in a prior litigation.’”
Id. (quoting Bentley Funding Group, L.L.C. v. SK&R Group, L.L.C., 269 Va. 315, 326 (2005)).
“Additionally, if the inconsistent positions involve different proceedings, the parties to the
proceedings must be the same, and the inconsistent position must have been relied upon by the
court or prior court in rendering its decision.” Id.
Here, the parties were the same in the divorce action and the breach of contract action.
When the circuit court entered the final decree of divorce, it relied on appellant’s representation
that the JDR court had entered orders regarding custody, visitation, and child support. The
circuit court found that the JDR court was “the more appropriate forum having jurisdiction” and
referred the custody, visitation, and support matters to the JDR court. Appellant did not object to
the entry of the final decree of divorce or the remand to the JDR court. Eight months later,
appellant filed a breach of contract action with the circuit court and argued that appellee owed
her child support under the agreement. In the breach of contract action, the circuit court found
that appellant made false assertions during the divorce action and noted that the parties did “not
dispute” that there was no JDR court order. Appellant argued to the circuit court in the breach of
contract action that it could not transfer the support matters to the JDR court because there was
no support order to transfer. Appellant is estopped from raising these arguments because they
are inconsistent with her position in the divorce proceedings.
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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