Opinion
Record No. 1228-92-1
October 5, 1993
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY WILLIAM L. PERSON, JR., JUDGE.
Oldric J. LaBell, Jr., for appellant.
Breckenridge Ingles (Martin, Hicks Ingles, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Gary M. Doxtater, appellee, and Yvonne Christian-Doxtater, appellant, were divorced by final decree in 1988. The final decree incorporated by reference a property settlement agreement which provided that appellee would pay appellant $400 per month in child support.
In March 1990, appellant filed a petition in the City of Williamsburg and James City County Juvenile and Domestic Relations District Court for an increase in child support commensurate with the guidelines mandated by the Code of Virginia § 20-108.2. That petition was denied and appellant asked that the case be transferred to the Juvenile and Domestic Relations Court for the City of Newport News. Rather than appeal this first decision, appellant again petitioned for an increase twenty-seven days later in Newport News. The court denied this second petition on the ground that there was no substantial change in circumstances between May 9, 1990, the date of the Williamsburg and James City County denial, and June 5, 1990, the date of the filing of the second petition. Appellant initially appealed this decision but withdrew her appeal in September.
One year after appellant withdrew her appeal, she filed a third petition for an increase in child support. Appellant was awarded an increase on the ground that the establishment of the mandatory guidelines was in itself a change in circumstance warranting the increase. Appellee appealed the decision to the Circuit Court for the City of Williamsburg. The circuit court granted the motion to dismiss on the ground that the two previous petitions were denied, and that no evidence was introduced that indicated any change in the factors or circumstances of either party following the two prior hearings. Mrs. Doxtater appeals this ruling.
On appeal, the court views the evidence in the light most favorable to the prevailing party. Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222-23, 372 S.E.2d 411, 415 (1988).Res judicata precludes the relitigation of a claim or issue once a final determination on the merits has been reached by a court having proper jurisdiction over the matter. See Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989).
The case at bar is controlled by Hiner v. Hadeed, ___ Va. App. ___, 425 S.E.2d 811 (1993), a case in which we addressed the matter of res judicata as applied to child support matters. In Hiner, we held that where no material change in circumstance has occurred since the last modification hearing in which the support guidelines presumably had been considered, the principles of res judicata bar the trial judge from reconsidering the child support award. Id. at ___, 425 S.E.2d at 812. Even where the decision was arguably erroneous, the court is precluded from relitigating an issue that has been previously decided. Id. at ___, 422 S.E.2d at 814.
When the juvenile and domestic relations court granted appellant's third petition for increase, it based its decision on the fact that the guidelines under Code § 20-108.2 themselves constituted a material change. However, appellant's two prior petitions for increase in support were denied in 1990 after the Commonwealth's child support guidelines became mandatory. Because presumably, as in Hiner, the court considered the guidelines when those petitions were denied, the court erred in considering the guidelines as the change in circumstance that warranted the third hearing. The principles of res judicata, therefore, prevented appellant from receiving her increase in support on the third petition, and the circuit court correctly granted the motion to dismiss.
After appellant's first petition was denied under the guidelines, her remedy was to appeal. "The only method for challenging the court's deviation from the guidelines or failure to make the required findings is by direct appeal."Barnhill v. Brooks, ___ Va. App. ___, 427 S.E.2d 209, 212 (1993). Because appellant did not follow this established procedure, we affirm the trial court's decision.
Affirmed.