Christopher L. Whitaker v Robin L. Day, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Humphreys and Retired Judge Olitsky∗
Argued at Richmond, Virginia
CHRISTOPHER L. WHITAKER
OPINION BY
v. 	Record No. 0640-99-2 	JUDGE JAMES W. BENTON, JR.
JULY 11, 2000
ROBIN L. DAY AND
EMILIE MILLS AND KRISTEN MILLS,
INFANTS, BY THEIR GUARDIAN AD LITEM
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Judge
John H. Goots (Chalkley & Witmeyer, L.L.P.,
on brief), for appellant.
No brief or argument for appellee Robin L.
Day.
Jennifer C. Hollar, Guardian ad litem
(Berkeley & Hollar, on brief), for appellees
Emilie Mills and Kristen Mills, infants.
∗ Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
This proceeding began in the juvenile and domestic relations
district court with a petition against Christopher L. Whitaker to
establish paternity and child support, filed on behalf of infants,
Emilie and Kristen Mills, by their guardian ad litem. 	Following
an appeal to the circuit court, the trial judge overruled
Whitaker's plea of res judicata, ordered blood testing to
determine paternity, and remanded the proceeding to the juvenile

court. 	Whitaker appeals from that order and contends the trial
judge erred in ruling that the petition was not barred by res
judicata. 	Because the trial court's interlocutory order neither
adjudicates the principles of the cause nor involves an order
granting, dissolving or denying an injunction, we dismiss the
appeal.
I.
The guardian ad litem filed this action on behalf of the two
infant children in 1997 in the juvenile court and served as
respondents the children's mother, Robin Day, and Whitaker, who is
alleged to be their father. 	Although the petition was styled In
re: 	Emilea Mills and Kristin Mills, the juvenile court docketed
the matter as Robin Lynn Day v. Christopher Whitaker, In re:
Emilea Mills and Kristen Elizabeth Mills. 	Day appeared in court
but filed no pleadings and apparently has had no attorney of
record throughout these proceedings. 	Whitaker was represented by
an attorney. 	The children were represented by their guardian ad
litem, an attorney.
Whitaker sought to have the petition dismissed, alleging that
the proceeding was barred by res judicata. 	The juvenile court
judge denied the motion to dismiss and ordered blood tests as
requested by the petition. 	On appeal to the circuit court, this
matter was styled Day v. Whitaker, In re: 	Emilea S. Mills and
Kristin E. Mills. 	After receiving memoranda and hearing arguments
of counsel, the trial judge denied Whitaker's plea of res judicata
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and motion to dismiss.1 The trial judge entered an order, which
provides in pertinent part as follows:
This day appeared Robin L. Day in person,
the defendant, Christopher L. Whitaker in
person and by his attorney, . . . and the
children, Emilie S. Mills and Kristin E.
Mills by their guardian ad litem, . . . ;
this being a petition to establish paternity
1 Whitaker's motion to dismiss relied upon documents showing
that on March 28, 1994, the Division of Child Support
Enforcement filed in the juvenile court a petition for support
on behalf of Day against Christopher Mills and Whitaker. 	The
Division, filing on behalf of Day, was represented by counsel.
The juvenile court appointed a guardian ad litem to represent
Emilie and Kristen Mills. 	Christopher Mills was also
represented by counsel. 	At the request of the Division, the
juvenile court dismissed the suit by order, stating that Mills
acknowledged his paternity of the children.
On April 18, 1994, Day filed in the juvenile court a
petition for support against Whitaker, a petition to establish
paternity against Whitaker, and a petition to determine custody
against Whitaker and Mills. 	Mills, who was named as the "legal
father," filed a petition to determine visitation. 	The children
were not named as parties in these petitions, and the file does
not reflect that they were represented by a guardian ad litem.
On June 22, 1994, the juvenile court judge entered an order
dismissing the petition for support and the petition to
determine paternity against Whitaker, stating in the order that
Mills' "paternity acknowledgement under oath shall have the same
legal effect as a judgment." 	Day filed an appeal of this order;
however, she did not appear in the circuit court. 	An order was
entered in the circuit court dismissing the appeal.
On April 18, 1995, Susan Lewis, the maternal grandmother of
the children, filed in juvenile court a petition for custody of
the children. 	Although Mills was listed as the father, the
judge, nevertheless appointed a guardian ad litem to represent
Whitaker, apparently because Whitaker's address was unknown.
Day, who was incarcerated, was also represented by a guardian ad
litem. 	Whitaker's guardian ad litem filed an answer on his
behalf pleading that because the circuit court had already
determined that Mills was the father of the children, res
judicata should apply. 	Finding that Mills was the children's
father by giving res judicata effect to the prior order, the
judge dismissed Whitaker from the proceedings. 	Two years later,
this current proceeding commenced.
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and an appeal of the order ordering the
blood test.
And the Court having considered the
argument of counsel for [Whitaker], that the
ordering of a blood test is barred by the
plea of res judicata, and the Court having
considered the motion, denies the motion to
which action the defendant Christopher
Whitaker, objects.
Accordingly the aforesaid blood test is
ORDERED and this matter is remanded to the
Henrico Juvenile and Domestic Relations
District Court.
Whitaker appeals from this order and contends the trial
judge erred in ruling that the petition to establish paternity
and support was not barred by res judicata.
II.
Pertinent to the jurisdiction of this Court, we have ruled
as follows:
This Court has appellate jurisdiction
over final decrees of a circuit court in
domestic relations matters arising under
Titles 16.1 or 20, and any interlocutory
decree or order involving the granting,
dissolving, or denying of an injunction or
"adjudicating the principles of a cause."
Code § 17.1-405(3)(f) and (4), recodifying
Code § 17-116.05(3)(f) and (4). 	A final
decree is one "which disposes of the whole
subject, gives all the relief that is
contemplated, and leaves nothing to be done
by the court." 	Erikson v. Erikson, 19 Va.
App. 389, 390, 451 S.E.2d 711, 712 (1994)
(internal quotation marks and citations
omitted).
Wells v. Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551
(1999).
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The petition that commenced this proceeding seeks an order
requiring genetic or appropriate blood tests, a ruling
adjudicating paternity, and an award of support for the
children. 	Based upon the written memoranda and arguments of
counsel, the trial judge determined only that the plea of res
judicata did not bar this proceeding and that testing should
proceed. 	The trial judge did not adjudicate paternity or award
support.
A ruling denying a motion to dismiss, which alleges that
the action is barred by principles of res judicata, is
interlocutory and, therefore, is not ripe for appeal. 	See
Country Club of Johnston County, Inc. v. United States Fidelity
and Guaranty Co., 519 S.E.2d 540, 546 (N.C. Ct. App. 1999)
(holding that "denial of a motion for summary judgment based
upon the defense of res judicata may involve a substantial right
so as to permit immediate appeal only 'where a possibility of
inconsistent verdicts exists if the case proceeds to trial'");
State ex rel. Thomas v. Mixon, 674 So.2d 611, 612 (Ala. Civ.
App. 1995) (reversing for lack of jurisdiction a trial judge's
granting of a motion to dismiss on res judicata grounds because
"Mixon improperly appealed from [a juvenile court's]
interlocutory order"); Smith v. Union Bank & Trust Co., 653
So.2d 933, 934 (Ala. 1995) (permitting an appeal although
recognizing that it arises "from [an] interlocutory order
denying a dismissal" on res judicata grounds); See also E.E.O.C.
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v. Federal Reserve Bank of Richmond, 698 F.2d 633, 674 (4th Cir.
1983) (noting that, under federal statutes, when a trial judge
enters an order denying a motion to dismiss the action, which
alleges a bar of res judicata, an interlocutory appeal may
proceed upon an appropriate certification). 	When the trial
judge refused to dismiss this case and remanded the matter to
the juvenile court, the trial judge "did not resolve any factual
or legal issues concerning the merits of the [case]." 	Canova
Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va. App. 595, 600,
471 S.E.2d 827, 830 (1996). 	The order merely denied Whitaker's
motion to dismiss and remanded the matter to the juvenile court
for further action. 	This order is, therefore, not a final
decree "'which disposes of the whole subject, gives all the
relief that is contemplated, and leaves nothing to be done by
the court.'" 	Wells, 29 Va. App. at 85-86, 509 S.E.2d at 551
(citation omitted).
Furthermore, the order did not adjudicate "the principles
of a cause." 	Code § 17.1-405(4), recodifying Code
§ 17-116.05(4). 	An interlocutory decree adjudicates the
principles of a cause when "'the rules or methods by which the
rights of the parties are to be finally worked out have been so
far determined that it is only necessary to apply those rules or
methods to the facts of the case in order to ascertain the
relative rights of the parties, with regard to the subject
matter of the suit.'" 	Pinkard v. Pinkard, 12 Va. App. 848, 851,
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407 S.E.2d 339, 341 (1991) (citation omitted). 	The trial
judge's order merely held that the petitioners could proceed
with their action and remanded the case to the juvenile court
for those further proceedings. 	"The mere possibility that [the
remand order] . . . may affect the final decision in the trial
does not necessitate an immediate appeal." 	Pinkard, 12 Va. App.
at 853, 407 S.E.2d at 342. 	The order did not adjudicate the
principles of the cause or decide an issue which would of
necessity affect the final decision in the case. 	See Polumbo v.
Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229 (1991);
Weizenbaum v. Weizenbaum, 12 Va. App. 899, 902-03, 407 S.E.2d
37, 341 (1991).
For these reasons, we hold that the trial judge's order
denying Whitaker's motion to dismiss, which alleges that the
action is barred by res judicata, is a non-appealable,
interlocutory order. 	Accordingly, we dismiss the appeal.
Dismissed.
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