Jackson v. Jackson, Record No. 2481-09-4 (Va. App. 6/1/2010)

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GINO V. JACKSON, v. PATRICIA ANNE JACKSON.

Record No. 2481-09-4.

Court of Appeals of Virginia.

June 1, 2010.

Appeal from the Circuit Court of Stafford County, Charles S. Sharp, Judge.

(Gino V. Jackson, pro se, on brief).

No brief for appellee.

Present: Judges Kelsey, Petty and Senior Judge Bumgardner.

MEMORANDUM OPINION^*

PER CURIAM.

Gino V. Jackson (husband) appeals an order in which the trial court found him in contempt of the final decree of divorce and ordered him to pay Patricia Anne Jackson (wife) $13,000 in arrears for her share of his military retired pay. Husband argues that (1) the final decree of divorce, entered August 1, 2008, is void ab initio because husband's guardian ad litem (GAL)¹ misrepresented to husband that the hearing was for "status and motions only" and opposing counsel failed to provide notice; (2) the trial court erred and demonstrated bias that adversely affected husband by refusing to either dismiss or withdraw an adverse GAL who represented husband in his divorce and had a conflict of interests; (3) the trial court erred and demonstrated bias that adversely affected husband with the delay in signing an order from a July 20, 2007 hearing nunc pro tunc on June 30, 2008; (4) the trial court erred and demonstrated bias by failing to provide husband with a full and fair divorce trial on June 30, 2008 when it proceeded with the divorce without providing notice and conducting a hearing to determine the value and ownership of the parties' real and personal property; (5) the trial court erred in proceeding with the divorce trial on June 30, 2008 and ordered distribution of property without appointing a committee; (6) the evidence was insufficient to find husband guilty of contempt of court, but sufficient to find wife guilty of contempt of court; (7) the trial court demonstrated bias that adversely affected husband by "misprisioning" [sic] wife and her counsel's use of undue influence and duress to obtain a deed of gift from husband on March 9, 2009 and then used wife's threatened legal action to coerce the deed as the show cause action against husband on July 21, 2009; (8) the trial court erred and demonstrated bias that adversely affected husband by finding that he was in contempt of court by order dated November 4, 2009 but providing a timeframe and criteria to purge said contempt by January 1, 2010; (9) the trial court erred and demonstrated bias that adversely affected husband by depriving him of the right to be present at the November 4, 2009 hearing to enter the judgment from the October 19, 2009 contempt hearing; (10) the trial court erred and demonstrated bias that adversely affected husband's ability to appeal the ruling from the October 19, 2009 hearing by failing to certify his written statement of facts and by not intervening to prevent the GAL and the court reporter's actions which precluded the timely completion of the transcript so that it could be filed in compliance with Rule 5A:8; (11) the trial court erred by determining the apportionment of husband's military retired pay began on August 1, 2008, rather than on February 1, 2009 after husband's previous appeal was dismissed by this Court; (12) the trial court erred and demonstrated bias that adversely affected husband by falsifying that there was a hearing on December 21, 2009 to disburse the funds from the court-ordered purging of contempt for the arrears from husband's military retired pay and falsifying that there was no authority for husband to participate in the hearing and present evidence via video conference on December 10, 2009; (13) the trial court erred and demonstrated bias that adversely affected husband by failing to dismiss husband's GAL in December 2009 after husband notified the trial court of the GAL's "constructive ineffective representation" of husband and the GAL's efforts with the court reporter to prevent a transcript from being timely filed with the court pursuant to Rule 5A:8; and (14) the trial court erred and demonstrated bias that adversely affected husband and was designed to promote an undisclosed Giglio violation² to provide financial advantage to wife along with "misprisioning" [sic] criminal actions by wife against husband in furtherance of a racially motivated criminal conspiracy to deprive husband of due process and equal protection of the law.

Upon reviewing the record and the opening brief, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.³

BACKGROUND

The trial court entered a final decree of divorce on August 1, 2008. In July 2009, wife filed a "Petition for Rule to Show Cause," arguing that husband's failure to (1) sign a deed of gift and (2) pay wife 45% of his disposable military retired pay violates the terms of the final decree. In August 2009, husband filed a "Petition for Order to Show Cause Why Respondent Should Not Be Held in Contempt," arguing that wife failed to pay husband $1,730 for his share of the vehicles and provide him with the car titles to sign. In October 2009, husband filed a second petition for show cause, arguing that wife violated the protective order by contacting him. The trial court held a hearing regarding the show causes on October 19, 2009. On November 4, 2009, the trial court entered an order and held that wife did not willfully violate the protective order but husband did willfully violate the final decree and order to divide his military retired pay. The trial court ordered husband to pay wife $13,000, representing the arrearage owed for her share of his military retired pay.⁴ Husband timely noted his appeal.

ANALYSIS

Issues 1 through 5 and 14

In 2008, husband appealed the final decree of divorce, which was entered by the trial court on August 1, 2008. Among other questions presented in the 2008 appeal, husband argued that the trial court erred in (1) signing an order on June 30, 2008 nunc pro tunc to July 20, 2007; (2) failing to provide notice of the divorce trial on June 30, 2008; (3) forcing husband to be represented by a "constructively incompetent and adverse" guardian ad litem; (3) distributing the marital assets and determining the property in question and its value; and (4) failing to have a committee present at the June 30, 2008 "unnoticed divorce trial" and at the August 1, 2008 hearing.⁵ Without addressing the merits of husband's appeal, this Court summarily affirmed it by order dated January 21, 2009, due to husband's failure to provide a transcript or written statement of facts, which was indispensable to a determination of the issues on appeal.

The first five issues of this appeal are the same issues previously presented to the Court in husband's 2008 appeal. In addition, the last issue on appeal relates back to the final decree and husband's criminal conviction in 2005.

"Res judicata is a judicially created doctrine founded upon the `considerations of public policy which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent harassment of parties.'" Neff v. Commonwealth, 39 Va. App 13, 17-18, 569 S.E.2d 72, 74-75 (2002) (quoting Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974)). 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."

Lofton Ridge, LLC v. Norfolk Southern Rwy. Co., 268 Va. 377, 381, 601 S.E.2d 648, 650 (2004) (quoting Kemp v. Miller, 166 Va. 661, 674-75, 186 S.E. 99, 103-04 (1936)). "`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.'" Highsmith v. Commonwealth, 25 Va. App. 434, 440-41, 489 S.E.2d 239, 242 (1997) (quoting 8B Michie's Jurisprudence, Former Adjudication or Res Judicata § 12 (1996)).

Res judicata applies in this case. In husband's first appeal to this Court, he listed numerous arguments stemming from the trial court's entry of the final decree. However, we summarily affirmed that appeal due to husband's failure to file a transcript or written statement of facts, which was indispensable to the determination of issues on appeal. Husband also previously appealed his criminal conviction, and we denied the petition for appeal.⁶ Thus, any attempt by husband to relitigate these issues that were raised or could have been raised in his prior appeals is barred by the doctrine of res judicata.

Issues 6, 10, and 13

Husband argues that the evidence was insufficient to find him guilty of contempt and sufficient to find wife guilty of contempt. The trial court held the show cause hearing on October 19, 2009. A court reporter was present for the hearing; however, the transcript was not timely filed. Husband filed a written statement of facts and provided proper notice. The trial court entered an order on December 10, 2009 and found that the statement of facts was "incomplete and inaccurate as it does not properly reflect the proceedings and consists almost entirely of conclusions and argument." The trial court ordered "and certified in accordance with Rule 5:11(D)(4) of the Rules of the Supreme Court of Virginia that the record is incomplete for the purposes of appeal."⁷ Therefore, the record on appeal does not contain a timely filed transcript or written statement of facts from the October 19, 2009 hearing. See Rule 5A:8(a) and (c).

We conclude that a transcript or...