Litigation Procedure and Law - § 8-17 (F) - § 8-19

  (F)       Sufficiency

2013---Starling v. Starling, Va. Ct. of Appeals, Unpublished, No. 0589-13-3
Wife’s mistaken request in her cross complaint for equitable distribution pursuant to Code of Virginia §20-107.1 (instead of §20-107.3) was a mere scrivener’s error, and was sufficient to put Husband on notice that equitable distribution was at issue. Code of Virginia 8.01-428(B) allows a trial court to correct clerical mistakes. Scrivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, are clerical mistakes. Here, the divorce litigation had been pending for over six years; Husband had previously acknowledged that wife had requested equitable distribution in her cross complaint; the parties had conducted extensive discovery regarding equitable distribution; and husband raised the issue for the first time after trial.

2013---Bousman v. Lhommedieu, Va. Ct. of Appeals, Unpublished No. 2289-12-4.
A demurrer is sufficient where it gives adequate notice of the issues presented to the court for ruling. The requirements for pleading are not so strict as to demand specificity beyond that necessary to clearly inform the opposite party of the true nature of the claim or defense pled.

2011---Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 2496-09-4
Though neither party specifically requested a change in their joint legal custody status in the initial pleadings, both parties requested the trial court to provide "further relief as the Court deems appropriate and equitable and in the best interests of the child," and each party made allegations of material facts in the pleadings related to the child's preschool and childcare. Such a general prayer for relief will support a remedy that comports with the best interest of the child when the allegations of material facts in the pleadings sustain such relief.

2009---Kappeler v. Kappeler, Va. Ct. of Appeals, Unpublished, No. 0292-09-4
Although most types of judicial relief may not be awarded if the requesting party does not expressly request it in the pleadings, "substantial compliance" usually suffices in the context of domestic relations cases (citing Gologanoff. Gologanoff, 6 Va. App. 340 (1988)), if the pleadings provide a "fair warning of the general form of relief sought," (citing O'Rourke v. Vuturo, 49 Va. App. 139 (2006)).

Trial court did not violate "due process priniciples" by allowing mother to present evidence regarding father's hostility during visitation exchanges, despite mother's failure to specifically plead the hostility as a material change in circumstances in her motion to increase child support. Mother's motion alleged that she had "elected to establish after school child care arrangements for the children." Father's cross motion to reduce child support citied Va. Code §20-108.2(F)   and asserted that his "willingness and availability to provide child care" constituted a material change in circumstances justifying a reduction in support. Together, those pleadings put the issue of child care expenses squarely before the court. Furthermore, the best evidence that the pleadings put father on notice of the issue was that the father expressed no surprise at the hearing about the hostility issue, either during argument of counsel or the presentation of evidence.

2005---D’Ambrosio v. D’Ambrosio, 45 Va. App. 323 (2005)
Trial court did not err in altering a custody decree to grant medical decision making authority to the mother, despite the fact that neither party specifically requested such a change. Both parties mentioned an issue of “competing physicians” in their respective motions, and both parties included a general prayer that the court “grant such other relief as equity deems appropriate.” Furthermore, both parties addressed the issue of “competing physicians” in their opening statements. Because the relief was consistent with allegations in the petitions and arguments made at trial, and because Va. Code §20-108 gives the court clear authority to modify a custody decree in the best interests of the child, Father’s argument that he was “not on notice” that such medical decision making authority was at issue was meritless.

2005---Cabaniss v. Cabaniss , 46 Va. App. 595
Trial court did not err in finding personal jurisdiction over Husband pursuant to the long-arm statute based on allegations in Wife’s Complaint that i) the parties were married in 1982; ii) the wife was domiciled in and a bona fide resident of Virginia; iii) Husband lived abroad; iv) the parties last cohabitated in Lexington, Virginia; v) on March 19, 2002, Husband, at that time gone from the marital residence, called Wife and informed her that the marriage was over; and vi) since that date Husband had not returned to the matrimonial domicile.  Husband’s argument that the Complaint did not sufficiently state that the parties had been maintaining a matrimonial domicile at the time they separated, as required by the long-arm statute (8.01-328.1(A)(9)), is without merit.  Given the allegations contained in the Complaint, Husband “could not have been mistaken” that Wife was alleging that the parties had been maintaining a matrimonial domicile at the time of their separation upon which wife’s action for divorce was based.  

Even though a motion for judgment or a bill of complaint may be imperfect, when it is drafted so that the defendant cannot mistake the true nature of the claim, the trial court should overrule the demurrer.

2002---Smith v. Smith, 38 Va. App. 113
Wife’s answer was a sufficient request for equitable distribution.

1997---Wilson v. Wilson, 25 Va. App. 752 (1997)
Discovery, document production, or other relief is not allowed in absence of a pleading placing the issue before the court.

1986---Boyd v. Boyd, 2 Va. App. 16
Wife’s prayer in her Answer for “such other and further relief as to equity may seem meet and the nature of her case may require” was insufficient for purposes of asserting a claim for spousal support.

1935---Potts v. Mathieson Alkali Works, 165 Va. 196
The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. Pleadings are as essential as proof, the one being unavailing without the other. A decree can not be entered in the absence of pleadings upon which to found the same, and if so entered, it is void. Every litigant is entitled to be told by his adversarynotice in plain and explicit language what is hisof his opponent’s ground of complaint or defense. The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.

  (G)       Void

2006---Jones v. Jones, 49 Va. App. 31
Wife’s appeal dismissed where her attorney filed the notice of appeal while suspended from practicing law in Virginia.  A pleading signed by an attorney not licensed to practice law in Virginia is invalid and has no legal effect.

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    (H)       Sanctions

2011---Johnson v. Woodard, 281 Va. 403
Va. Code § 8.01-271.1 authorizes sanctions only of an attorney or part-litigant who violates the duties of the statute. The statue does not determine the imposition of sanctions against non-parties.

2010---Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
A trial court must employ an objective standard of reasonableness in evaluating an alleged violation of Va. Code §8.01-271.1. Under this standard, the trial court should consider whether, after reasonable inquiry, counsel could have formed a reasonable belief that the pleadings were well-grounded in fact, warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and not interposed for an improper purpose.

1993---Bandas v. Bandas, 16 Va. App. 427
An abuse-of-discretion standard is applied in reviewing a trial court’s award or denial of sanctions.

    (I)       Pleas in Bar

2011---Breit v. Mason, Va. Ct. of Appeals, No. 0337-11-1
A plea in bar asserts a single issue, which, if proved, creates a bar to the plaintiff’s recover. Where no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented. In doing so, the facts stated in the plaintiff’s petition are deemed true. However, if the parties present evidence on the plea ore tenus, the trial court’s factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.

    § 8-18. Pretrial

    (A)       Discovery

                            (1)        Depositions

2009---Kapur v. Kapur, Va. Ct. of Appeals, Unpublished, Record No. 0363-08-4
Trial court erred in imposing sanctions precluding Husband from introducing evidence at the hearing on support and equitable distribution based on his failure to attend a scheduled deposition, because no order compelling Husband’s attendance at a deposition was ever entered.  (see Brown v. Black, 260 Va. 305 (2000), which held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d).)
                       
                            (2)        Interrogatories, Requests for Production, Requests for Admission

2004---Cirrito v. Cirrito, 44 Va. App. 287   
Trial court failed to follow proper procedure regarding the identification of experts and erred in imposing sanctions on wife for failing to make an expert disclosure in the absence of a specific Rule 4:1 request that she do so.  Wife responded to some of husband’s requests for admissions with statements that she was unable to admit or deny, as she had not yet identified experts needed to do so.  Husband contended that his simultaneously-served interrogatories, which requested only that wife identify the basis for any refusal to admit the requests for admissions, constituted a request that she disclose such experts and provide their reports.  Despite the fact that husband never expressly requested that wife identify experts pursuant to Rule 4:1, the trial court found that the requests for admissions and the corresponding interrogatories sought the same information as a Rule 4:1 request for identification of experts, and ordered wife to identify her experts and provide their reports.  The Court of Appeals held that because husband had not specifically requested expert disclosure pursuant to Rule 4:1, the trial court lacked the authority to order wife to so disclose.    

1970---Rakes v. Fulcher, 210 Va. 542
One purpose of discovery procedures is to obtain evidence in the sole possession of one party and unobtainable by opposing counsel through independent means. However, discovery procedures were not intended to open an attorney’s files to opposing counsel, nor were they intended to afford an attorney the luxury of having opposing counsel investigate his case for him. When both parties have an equal opportunity to investigate, as is the case where all witnesses are made known and are available to both sides, additional discovery regarding those witnesses should not be granted.

                            (3)        Motion to Compel

                            (4)        Sanctions

2015---Gregory v. Gregory, Va. Ct. of Appeals, Unpublished, No. 1367-14-4
The trial court erred in failing to award attorney’s fees to Husband for Wife’s failure to comply with the court’s orders compelling discovery. Wife’s failure to respond to Husband’s discovery requests caused Husband to incur significant fees in prosecuting multiple motions to compel. Moreover, the trial court did not find that Wife’s opposition to Husband’s motions to compel was substantially justified, or that an award of fees to Husband would have been unjust. Accordingly, Husband was entitled to fees for obtaining Wife’s compliance with the court’s orders.

2010---Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
On appeal, a trial court’s decision regarding discovery disputes will be set aside only if the court abused its discretion. Rule 4:12 governs the imposition of sanctions for failure to make discovery, and when a party fails to respond to discovery requests, Rule 4:12(b)(2)(B) permits the court to enter an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence.

Where wife on two occasions refused to comply with court orders to respond to husband’s discovery requests, the trial court did not err in prohibiting wife from opposing the claims or defenses of husband, from introducing any evidence to support claims she made or intended to make against husband which were the subject of husband’s discovery requests, or from introducing any matters into evidence which were the subject of the discovery requests. Furthermore, the trial court did not err in refusing to permit wife to introduce evidence related to any property she claimed was separate other than the separate property she listed on bankruptcy schedules that she provided to the bankruptcy court.

2009---Kapur v. Kapur, Va. Ct. of Appeals, Unpublished, Record No. 0363-08-4
Trial court erred in imposing sanctions precluding Husband from introducing evidence at the hearing on support and equitable distribution based on his failure to attend a scheduled deposition, because no order compelling Husband’s attendance at a deposition was ever entered.  (see Brown v. Black, 260 Va. 305 (2000), which held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d).)

2004---Estate of Hackler v. Hackler, 44 Va. App. 51
Where husband refused to answer discovery regarding financial and asset information in divorce proceeding, and refused to abide by pendente lite orders to provide support and maintenance, the trial court had the authority under Rule 4:12 to appoint a conservator to take over and manage husband’s assets, to pay support from husband’s accounts, and to acquire the information requested by wife in discovery.

                            (5)        Expert Disclosures

2015---Aratoon v. Roberts, Va. Ct. of Appeals, Unpublished, No. 0529-14-4
Although Wife failed to timely disclose her expert witness’ report prior to trial, the trial court did not abuse its discretion by permitting the expert to testify because Husband learned sufficient information from a prior evidentiary hearing to adequately prepare to cross-examine the witness and because Husband failed to allege any prejudice resulting from the untimely disclosure.

2007---John Crane, Inc. v. Jones, 274 Va. 581
A party is not relived from its disclosure obligation under Rule 4:1(b)(4)(A)(i) simply because the other party has some familiarity with the witness or has deposed the witness regarding the substance of his opinions. Such a rule would impermissibly alter a party’s burden to disclose, and instead impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony.

Trial court did not err in refusing to allow an expert to testify regarding levels of asbestos in ambient air, where nothing in the Defendant’s expert witness disclosure referenced that particular subject matter. That the Plaintiff questioned the expert at his deposition regarding his opinions on the subject did not matter, as the Defendant still had the duty to disclose those opinions pursuant to Rule 4:1(b)(4)(A)(i).

Trial court did not err in refusing to allow Defendant’s expert to testify where Defendant, despite disclosing the topic on which the expert intended to testify, failed to disclose the substance of the expert’s opinion in the pre-trial disclosures and failed to include in the pre-trial disclosures the report prepared by the expert.

2004--- Cirrito v. Cirrito , 44 Va. App. 287   
Trial court failed to follow proper procedure regarding the identification of experts and erred in imposing sanctions on wife for failing to make an expert disclosure in the absence of a specific Rule 4:1 request that she do so.  Wife responded to some of husband’s requests for admissions with statements that she was unable to admit or deny, as she had not yet identified experts needed to do so.  Husband contended that his simultaneously-served interrogatories, which requested only that wife identify the basis for any refusal to admit the requests for admissions, constituted a request that she disclose such experts and provide their reports.  Despite the fact that husband never expressly requested that wife identify experts pursuant to Rule 4:1, the trial court found that the requests for admissions and the corresponding interrogatories sought the same information as a Rule 4:1 request for identification of experts, and ordered wife to identify her experts and provide their reports.  The Court of Appeals held that because husband had not specifically requested expert disclosure pursuant to Rule 4:1, the trial court lacked the authority to order wife to so disclose.

                            (6)        Rule 4:10 Examination

2013-- Richter v. Manning, Va. Ct. of Appeals, Unpublished, No. 1166-12-4
The trial court did not err when it denied appellants’ motion to order a Rule 4:10 examination of the minor child to determine whether actual harm occurred when the mother withheld visitation from paternal grandparents. While the circuit court acknowledged appellants’ belief that a Rule 4:10 examination could potentially produce evidence relevant to a determination of actual harm, a party’s mere assertion that a discovery tool is necessary for him to investigate fully and prepare his case is insufficient as a statement of good cause.

    (B)       Scheduling Orders

2014---deCamp v. deCamp, 64 Va. App. 137 (2014)
The trial court did not err by refusing to admit updated information from Husband’s expert which the expert acquired during a month trial intermission, after Wife had rested her case. The trial court’s pretrial scheduling order required the parties to exchange exhibits fifteen days before trial. By the time the trial reconvened, Wife had already fully presented her case based upon the evidence available to both parties at the time the trial commenced, and it would have been fundamentally unfair to allow Husband to offer evidence that wife was wholly unaware of until after she rested her case.

2006---Rahnema v. Rahnema, 47 Va. App. 645
To be effective, pretrial deadlines in Rule 1:18   scheduling orders must be enforced by Virginia trial courts.

    § 8-19. Res Judicata

2015--- Lee v. Spoden , 290 Va. App. 235
The preclusive effects of res judicata can be divided into two categories: claim preclusion and issue preclusion. Under the doctrine of claim preclusion, a final judgment forecloses successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Claim preclusion contains two preclusive effects: bar and merger. Bar arises when a valid and final personal judgment is entered for the defendant; such judgment bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies. Merger occurs when a valid and final personal judgment for money is entered for plaintiff; once judgment has been entered, the original cause of action is merged into the judgment and is extinguished and the plaintiff cannot maintain a subsequent action on the original cause of action. (See Rule 1:6 of the Rules of the Supreme Court of Virginia)

Issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim. Issue preclusion contains two preclusive effects: direct estoppel and collateral estoppel. Direct estoppel arises when the defendant has won a judgment not on the merits. Although the plaintiff’s cause of action may survive the judgment, the parties are precluded in any subsequent action based upon that cause of action from relitigating any issue actually litigated and determined by the judgment. Collateral estoppel arises when the subsequent cause of action differs from the first, but the parties and their privies are the same. Collateral estoppel precludes the parties from relitigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action.

In Wife’s breach of contract action against Husband and his company, the trial court erred in failing to dismiss Wife’s claims under the doctrine of claim preclusion. During a prior contempt proceeding, the trial court found that Husband had not violated certain terms of the parties’ divorce settlement agreement. The underlying claims in Wife’s contempt action, which the trial court decided on the merits by a final judgment, were identical to the claims she asserted in her subsequent breach of contract action. Thus, Wife’s decision to pursue a final contempt judgment against Husband precluded her from pursuing any further claims against Husband based on the same occurrence or transaction. And because Husband and his company were in privity, this preclusive effect extended to Husband’s company.

2014---Carrithers v. Harrah, Va. Ct. of Appeals, Record No. 0601-13-1
In a prior appeal, the Virginia Court of Appeals held that Father failed to timely file his notice of appeal from the circuit court’s order in which the circuit court, finding that the JDR court had properly exercised jurisdiction over Father, refused to set aside the JDR court’s child support arrearage order. Despite the Court of Appeals’ ruling, Father filed a motion in the JDR court seeking again to set aside the arrearage order on grounds that the order was void ab initio. The JDR court, and the circuit court on de novo review, both held that the circuit court’s order refusing to set aside the JDR court’s arrearage order was final and undisturbed on appeal. Therefore Father’s motion was barred by res judicata. Father appealed a second time to the Virginia Court of Appeals. The court held that although a “void” order is void ab initio from the moment it comes into existence and can be attacked at any time directly or collaterally, that does not mean a party can litigate the voidness issue ad infinitum. Once a court of competent jurisdiction declares a prior order to be either void or valid, that declaration, if it becomes final and subject to no further appeals, is itself entitled to res judicata protection.

2013-- Bullock v. Bullock, Va. Ct. of Appeals, Unpublished, No. 1426-13-2.
The doctrine of res judicata prevents a new suit on the same cause of action (including any issue that might have been litigated) to be maintained between the same parties. A father’s show cause proceeding in which he alleged that he had not received proper credits for support payments was properly dismissed where both the juvenile and domestic relations district court and the circuit court had previously set arrearages and determined the appropriate amount of credits for the same period.

2012---Lewis v. Bailey, Va. Ct. of Appeals, Unpublished, No. 1139-12-1
The trial court did not err in dismissing on res judicata grounds mother’s petition to force payment by father of private school expenses. Mother had filed a previous petition requesting payment for those expenses by father, had been denied by the trial court, and had appealed the ruling to the Court of Appeals. Prior to the ruling by the Court of Appeals on her original petition, she filed another motion to amend, again arguing for the payment of private school expenses, but basing her new motion on increases to those expenses and additional letters from the school indicating the child’s need to attend. The trial court found that the issues and her arguments were exactly the same as they were in the initial petition, and therefore that no material change in circumstances had occurred since the last order.

2011---Morgan v. Kifus and Chowaniec, Va. Ct. of Appeals, Unpublished, No. 0399-10-4
A mother’s petition for a judgment declaring that she was the sole parent of a child and that no other parties had any rights or interest in either the legal or physical custody of the child was barred by res judicata, where the court had previously entered a consent order regarding custody and visitation from which no party appealed. Though the mother filed her petition for declaratory relief under the Declaratory Judgment Act provisions of Va. Code §8.01-184, her petition nonetheless sought to effectively re-litigate the issues of custody and visitation that had been previously decided. Absent allegations of a material change in circumstances since entry of the previous order, her petition was barred, notwithstanding her choice to pursue litigation through the alternative avenue of declaratory relief.

2010---Gianaris v. Gianaris, Va. Ct. of Appeals, Unpublished, No. 2379-09-4
Res judicata provides that a valid personal judgment on the merits bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies. Collateral estoppel is the preclusive effect, based upon a collateral and different cause of action, in which the parties to the first action and their privies are precluded from litigating any issue of fact or law actually litigated and essential to a valid and final personal judgment in the first action. Where the issue in the prior proceeding was actually litigated and the parties are the same, the preclusive effect of the doctrines of res judicata and collateral estoppel operates in the same basic fashion. (Citing Bates v. Devers, 214 Va. 667 (1974)).

Wife’s action in contract seeking past due spousal support was barred by res judicata. The parties previously litigated a motion by husband to terminate the obligation under the agreement, as incorporated into the decree, pursuant to Va. Code §20-109. The court terminated husband’s obligation at that time, and wife never appealed. Thus, even assuming, as Wife argued, that the agreement remained enforceable as a contract independent of the decree of divorce, the underlying issue of husband’s obligation under the agreement was a matter previously adjudged, and thus, barred by res judicata.

2010---Sharp v. Sharp, Va. Ct. of Appeals, Unpublished, No. 2712-09-2
A judgment of dismissal which is intended to be and is a disposition on the merits of a claim is a final judgment on the merits, and thus, subject to the doctrine of res judicata.

2010---Jackson v. Jackson, Va. Ct. of Appeals, Unpublished, No. 2481-09-4
The doctrine of res judicata provides as follows: “When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties.” (Citing Lofton Ridge, LLC v. Norfolk Southern Rwy. Co., 268 Va. 377 (2004)).

2010---Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
Res judicata literally means a “matter adjudged,” and precludes relitigation of a claim or issue once a final determination on the merits has been reached. Highsmith v. Commonwealth, 25 Va. App. 434 (1997). A final determination on the merits is “a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right to recovery depends, irrespective of formal, technical, or dilatory objections or contentions. Storm v. Nationwide Mut. Ins. Co., 199 Va. 130 (1957). A dismissal of a cause of action may constitute a judgment on the merits depending upon the grounds upon which such dismissal is based. Highsmith, 25 Va. App. At 440.

Trial court did not err in failing to dismiss wife’s appeal of a juvenile and domestic relations district court order of spousal support where wife initially noted an appeal of the ruling before the written order was entered, said appeal was dismissed because it was not accompanied by an appeal bond, and wife then properly noted an appeal of the written order after its entry and paid the requisite appeal bond. The trial court’s dismissal of the initial, premature appeal was not a decision as to the respective rights and liabilities of the parties, nor was it based on the ultimate fact or state of facts disclosed by the pleadings or evidence. Thus, the dismissal of the prematurely filed appeal was not res judicata and did not preclude the trial court from hearing the appeal that wife timely filed after entry by the juvenile court of the written order.

2009---Harding v. Harding, Va. Ct. of Appeals, Unpublished, No. 1157-08-4
Unless there is a final judgment, res judicata is not applied.  A judgment or decree is only final when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.  Res judicata was not applicable where trial court found, with regard to a provision in father’s Rule to Show Cause, that mother was “willfully remiss in her compliance” with a prior court order, but did not expressly dismiss that portion of the rule to show cause nor impose any sanction regarding that portion of the show cause. No “final order,” disposing of the whole subject of that provision, was entered until later, when the court dismissed the entire rule to show cause with prejudice.

2006---Robbins v. Robbins, 48 Va. App. 466
Under the law-of-the-case doctrine, a party is not entitled to re-litigate unappealed issues on remand.  But a trial court may modify or rescind interlocutory orders at any time before final judgment.

2004---Sullivan v. Sullivan, 42 Va. App. 794
Allowing reconsideration of a child’s best interests in custody proceedings upon an allegation of a substantial change in circumstances is meant to avoid the bar that would be otherwise imposed by res judicata. Trial court did not err in overruling father’s demurrer to mother’s petition for modification ofcustody, despite the fact that since the court of appeals reversed the trial court’s prior ruling allowing mother to relocate with the child and remanded the case to the trial court, the child had not yet been returned to Virginia.

1994---Gottlieb v. Gottlieb, 19 Va. App. 77
A person seeking to assert res judicata as a defense must establish the following: (1) identity of the remedies sought; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality of the persons for or against whom the claim is made.

Res judicata did not bar wife from defending divorce action filed by husband, which alleged desertion by wife, simply because the court had previously sustained husband’s demurrer to a divorce action filed by wife, which alleged constructive desertion by husband. The mere fact that wife could not maintain a suit against husband on grounds of constructive desertion did not automatically render her conduct in leaving the marital home an adequate ground of divorce such that she was barred from defending against husband’s allegations of desertion.

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