COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys and O’Brien
UNPUBLISHED
Argued by videoconference
JULIA SHELL
MEMORANDUM OPINION* BY
v. Record No. 1385-20-1 JUDGE ROBERT J. HUMPHREYS
JUNE 29, 2021
THOMAS DAVIS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Stephen C. Mahan, Judge
Allison W. Anders (LeeAnne C. Shocklin; Parks Zeigler, PLLC, on
briefs), for appellant.
Charles Hatley (Marcus Mitchell; Melone Hatley, P.C., on brief), for
appellee.
Julia Shell (“wife”) and Thomas Davis (“husband”) were divorced by the Circuit Court of
the City of Virginia Beach (“the circuit court”) on September 7, 2012. The parties had
previously signed a separation agreement, which was incorporated into the decree of divorce.
The separation agreement required husband to pay spousal support to wife. On July 8, 2019,
pursuant to a petition for modification by husband, the juvenile and domestic relations district
court (“the J&DR court”) found that a material change in circumstances had occurred and on
July 17, 2019, it ordered husband’s spousal support obligation be reduced (“the support order”),
effective April 1, 2018. Because the reduced support obligation was retroactive, the support
order created a significant overpayment by husband. On November 4, 2019, husband filed a
motion to establish a schedule for repayment of the overages (“motion for overage payments”)
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
and the J&DR court granted the motion.1 Wife appealed to the circuit court, which affirmed the
J&DR court. On appeal, wife argues that the circuit court erred by finding that husband’s motion
for overage payments was not barred by Rule 1:1, the doctrine of res judicata, or Code
§ 20-107.1.
I. BACKGROUND
The parties entered into a written separation agreement, which was affirmed, ratified, and
incorporated, but not merged, into their final decree of divorce on September 7, 2012, and which
required husband to pay spousal support to wife.
On July 8, 2019, upon a petition by husband for modified spousal support, the J&DR
court found that a material change in circumstances had occurred and subsequently ordered
husband’s spousal support payments be reduced. The order stated, “[t]otal arrearages and a
repayment schedule for the same shall be established on a separate 3-page order . . . to follow
this order.”2 The effective date for the reduced payments was April 1, 2018. It is undisputed
that because the lowered support amount was retroactive, as of the date of the order, husband had
overpaid from April 2018 through July 2019.
After entry of the July 8, 2019 order, the J&DR court emailed counsel for both parties
and inquired if there were any arrearages. Wife’s counsel responded that there were no arrears,
but there were overages. Counsel for husband did not respond.
Subsequently, on July 17, 2019, the J&DR court entered the support order, reducing
husband’s monthly spousal support obligation. The support order stated that “[n]o arrearages
exist as of 7-8-19,” but did not reference any overages.
Although husband’s motion was styled in the J&DR court as a “Motion to Amend or
1
Review Order,” we refer to it here as a motion for overage payments for ease of reference.
2
We note that the J&DR court apparently mistakenly used the term “arrearages” when it
meant “overage” in its reference to a repayment schedule.
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On November 4, 2019, husband filed a motion in which he asked the J&DR court to “set
a repayment amount for the overages of spousal support” because “the court [acknowledged] an
overpayment but did not set a repayment amount.”
On February 21, 2020, the J&DR court found husband had overpaid wife by $28,000 and
ordered her to repay him at the rate of $500 a month, which wife appealed to the circuit court.
Wife argued that husband’s motion for overage payments was barred by Rule 1:1 of the Rules of
the Supreme Court of Virginia, the doctrine of res judicata, and the statutory language of Code
§ 20-107.1.
On November 9, 2020, the circuit court held that husband’s motion was not precluded by
Rule 1:1, res judicata, or Code § 20-107.1. The circuit court found that the amount of support
overpayments was $15,250 as of November 9, 2020, and that husband was permitted to deduct
$500 from his monthly spousal support obligation until it was paid in full. Wife now appeals
that judgment to this Court.
II. ANALYSIS
A. Standard of Review
“Whether a claim or issue is precluded by res judicata principles is a question of law which
we review de novo.” Levy v. Wegmans Food Markets, Inc., 68 Va. App. 575, 579 (2018). We also
review the circuit court’s application of the Rules of the Supreme Court and its interpretation of the
Code of Virginia de novo. See Browning v. Browning, 68 Va. App. 19, 24 (2017); Eley v.
Commonwealth, 70 Va. App. 158, 162 (2019).
B. Rule 1:1
Wife argues that Rule 1:1 of the Rules of the Supreme Court of Virginia is a bar to
husband’s motion for overage payments because the support order was entered on July 17, 2019,
and husband did not file his motion until November 4, 2019. Rule 1:1 states that “[a]ll final
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judgments, orders, and decrees . . . may be modified, vacated, or suspended for twenty-one days
after the date of entry, and no longer.” Here, husband did not file his motion for overage payments
until well after twenty-one days had passed from entry of the support order.
However, Rule 1:1 does not bar husband’s motion because the support order clearly did not
dispose of “the entire matter” regarding overages. In Virginia, a “court speaks through its orders
and those orders are presumed to accurately reflect what transpired.” Rubino v. Rubino, 64
Va. App. 256, 264 (2015) (quoting McBride v. Commonwealth, 24 Va. App. 30, 35 (1997)). A
final judgment within the contemplation of Rule 1:1 is one which disposes of the entire action and
leaves nothing to be done except the “ministerial superintendence of execution of the judgment.”
See Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 560 (2002). Although the
support order implied that overpayments existed because the lowered support obligation was
retroactive, the order did not explicitly state as such, nor did it address repayment. The support
order only explicitly addressed payment arrearages, which are distinct and different from overages.
Thus, the support order of the J&DR court not only did not dispose of the issue of support
overpayments, it actually created that issue and then left it unresolved. The support order could
have disposed of the overage issue, but as it did not, the issue was still pending and unresolved by
the support order. Accordingly, the J&DR court retained jurisdiction regarding the issue of
overpayments. For these reasons, we find that the circuit court did not err by holding that husband’s
motion was not barred by Rule 1:1.
C. Res Judicata
Wife also argues that the doctrine of res judicata barred the J&DR court from hearing
husband’s motion for overage payments because it “arose out of the same conduct, transaction or
occurrence” as his previous motion to amend spousal support.
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“Res judicata and collateral estoppel, though similar, are distinct legal doctrines.” CDM
Enterprises, Inc. v. Commonwealth, 32 Va. App. 702, 709 (2000). Res judicata literally means “a
matter adjudged” and it precludes relitigation of a cause of action once a final determination on the
merits has been reached by a court of competent jurisdiction. Id. The doctrine can be further
divided into two preclusion categories, claim preclusion and issue preclusion. See Levy, 68
Va. App. at 580. Wife argues that husband’s motion was barred by claim preclusion.
Rule 1:6 of the Rules of the Supreme Court of Virginia governs claim preclusion and states
as follows:
A party whose claim for relief arising from identified conduct, a
transaction, or an occurrence, is decided on the merits by a final
judgment, shall be forever barred from prosecuting any second or
subsequent civil action against the same opposing party or parties
on any claim or cause of action that arises from that same conduct,
transaction or occurrence, whether or not the legal theory or rights
asserted in the second or subsequent action were raised in the prior
lawsuit, and regardless of the legal elements or the evidence upon
which any claims in the prior proceeding depended, or the
particular remedies sought.
(Emphasis added).
“Claim preclusion ‘bars successive litigation [between the same parties] of the very same
claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’” See
Levy, 68 Va. App. at 580 (quoting Brock v. Voith Siemens Hydro Power Generation, 59
Va. App. 39, 45 (2011)).
Here, husband’s first claim, which led to entry of the support order, was that he had
experienced a material change in circumstances and a modification in his spousal support
obligation was warranted. His claim in the motion for overage payments was that the retroactive
support order implicitly created overages but it neither established an amount nor a schedule for
repayment. Hence, husband requested that the J&DR court enter an order mandating repayment
by wife. Husband was not barred by res judicata because the grounds for his latter claim were
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first created by the support order. Prior to the J&DR court’s determination that a material
change of circumstances had occurred and its subsequent order reducing husband’s spousal
support obligation, husband had no claim for repayment from wife. His claim for overages only
arose out of the support order that made his reduced payments retroactive; therefore, his claim
could not be precluded under the doctrine of res judicata. For these reasons, we find that the
circuit court did not err in that regard.
D. Statutory Authority
Wife also argues that husband’s motion was statutorily barred because Code
§ 20-107.1(H) states that any order directing the payment of spousal support must address
support arrearages. The statute states as follows:
[A]n order directing the payment of spousal support . . . shall
contain the following:
....
4. If support arrearages exist, (i) to whom an arrearage is owed and
the amount of the arrearage, (ii) the period of time for which such
arrearage is calculated, and (iii) a direction that all payments are to
be credited to current spousal support obligations first, with any
payment in excess of the current obligation applied to arrearages.
Code § 20-107.1(H).
Wife asserts that the support order violated the statute because it did not reference or state
any support overages, writing on brief, “[w]hile not specifically referenced within the statute, it
is logical that any overages should be addressed in an order of support with similar specificity to
that of arrears.” In essence, wife asks this Court to interpret the word “arrearages” in
Code § 20-107.1(H) to also mean “overages.” The circuit court expressly rejected this argument
at the hearing, stating, “I cannot read into the statute what you’re asking me to read into it, in
essence, that the General Assembly meant ‘arrears or overages.’ That’s adding two words that
don’t exist.”
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On brief and at oral argument, wife relied on a Virginia Supreme Court case, Reid v.
Reid, 245 Va. 409 (1993), to support her argument that husband was precluded from receiving
repayment by both our existing caselaw and “clear legislative intent” to the contrary. Reid is
inapplicable due to its distinctive differences from the case at hand. In Reid, the circuit court
erred by requiring husband to pay wife spousal support after she legally deserted the parties’
marriage. Id. at 411 (citing Reid v. Reid, 7 Va. App. 553, 566 (1989)). After the circuit court
was found to have erred by granting wife spousal support, the support order was reversed. Id.
Husband then filed a motion seeking restitution from wife for $25,000, the amount he had paid in
spousal support pursuant to the earlier order. Id. The Supreme Court of Virginia held that the
circuit court did not have the authority to order wife to pay husband restitution. Id. at 412.
However, in relevant part, Reid also stated the following regarding Code § 20-112, which
governs reopened proceedings in a divorce case:
The General Assembly did not ignore the possibility of altering
spousal support awards retroactively, which would effectively
occur if restitution were ordered. Provision was made for
retroactive treatment when “proceedings are reopened to increase,
decrease or terminate maintenance and support for a spouse or for
a child,” but only “with respect to any period during which there is
a pending petition for modification, but [even then] only from the
date that notice of such petition has been given to the responding
party.”
Id. (alteration in original) (emphasis added) (quoting Code § 20-112).
In Reid, husband sought restitution for payments he had made under a spousal support
order that was erroneously entered and subsequently vacated. Id. at 411. In contrast, here, a
valid and binding spousal support order existed, pursuant to which husband filed a motion for
modification as required by statute. See Code § 20-109. Unlike Reid, here, husband’s payments
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were retroactively modified as permitted by Code § 20-112. There is no evidence that husband
failed to meet the requirements of Code § 20-112, and Reid is inapposite.3
As an appellate court, we “‘construe the law as it is written,’ and we are also mindful that
‘[t]o depart from the meaning expressed by the words is to alter the statute, to legislate and not to
interpret.’” See Town of Leesburg v. Giordano, 276 Va. 318, 323 (2008) (alteration in original)
(first quoting Hampton Roads Sanitation Dist. Comm’n v. City of Chesapeake, 218 Va. 696, 702
(1978); then quoting Faulkner v. Town of South Boston, 141 Va. 517, 524 (1925)).
Here, the circuit court correctly found that the plain language used by the General
Assembly only requires that support orders address arrearages, not overages. The plain language
of the statute establishes that the General Assembly clearly intended for Code § 20-112 to apply
to cases precisely like the one before us today wherein proceedings were initiated to decrease
spousal support. Where a decrease in spousal support is warranted, the statute clearly allows a
retroactive adjustment to support. The language of Code § 20-112 directly contradicts wife’s
argument that the circuit court’s finding was contrary to legislative intent. Because “[o]ur goal
in statutory interpretation is to carry out the General Assembly’s intent ‘as expressed by the
language used unless a literal interpretation of the language would result in a manifest
absurdity,’” we hold that the circuit court did not err when it refused to interpret the term
“arrearages” to include “overages.” Bailey v. Spangler, 289 Va. 353, 358 (2015) (quoting Board
of Supervisors v. Windmill Meadows, LLC, 287 Va. 170, 179-80 (2014)).
3
On brief, wife also cited Ruane v. Ruane, No. 1285-15-2 (Va. Ct. App. Nov. 22, 2016),
in support of her proposition that this Court has previously determined that a spouse was “not
entitled to actual reimbursement” of overpayments. However, the issue in Ruane—just as in
Reid—was whether husband could receive restitution for spousal support payments he had made
pursuant to an order that was later found to be erroneous and reversed. In the case at hand, there
was no erroneous, reversed support order. Here, husband’s payments were made pursuant to a
valid separation agreement incorporated into the parties’ final decree of divorce. Ruane lacks
precedential value and is inapplicable to the present case.
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E. Attorney’s Fees
Both parties request an award of attorney’s fees for costs incurred on appeal. Pursuant to
our authority as an appellate court “to determine the propriety of an award of attorney’s fees for
efforts expended on appeal,” we find that neither party is entitled to their fee and deny both
requests. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996).
III. CONCLUSION
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
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