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Kellogg v. Green

Supreme Court of Virginia

February 22, 2018

CONNIE KELLOGG
v.
CHRISTOPHER B. GREEN

         FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY B. Elliott Bondurant, Judge

          OPINION

          S. BERNARD GOODWYN JUSTICE

         In this appeal, we consider whether the circuit court erred when it sustained a plea of res judicata based upon a prior order that denied a request for a rule to show cause in a still-pending case.

         Background

         Connie Kellogg (Kellogg) and Christopher B. Green (Green) married on August 22, 1998. Kellogg later filed for divorce in the Circuit Court of Gloucester County (Divorce Action) and, on April 9, 2015, the circuit court entered a final decree of divorce (Final Decree). The Final Decree incorporated, but did not merge, two documents executed by Kellogg and Green: (1) a pre-marital agreement, executed on July 14, 1998 (Pre-Marital Agreement), and (2) an "Agreement to Amend Pre-Marital Agreement, dated September, 2002 and signed by both parties on March 18, 2004" (Amended Pre-Marital Agreement) (collectively, the Agreements). The Final Decree ordered Kellogg and Green to comply with the terms of the Agreements, and provided that the Agreements "remain[ed] enforceable under either contract law or through the contempt powers" of the court. The Final Decree concluded by ordering the Divorce Action "stricken from the docket."

         Subsequently, Kellogg filed a motion in the Divorce Action to amend the Final Decree in order to "reflect the correct date [ ] on which the parties signed" the Amended Pre-Marital Agreement from March 18, 2004 to March 18, 2003 (Motion to Amend).[*] Kellogg also filed an affidavit and petition for a rule to show cause (Show Cause Petition). The Show Cause Petition claimed that, under the Amended Pre-Marital Agreement, Green was "indebted to [Kellogg] in the sum of $5, 000.00 for each year [Kellogg and Green] were married, " which totaled $82, 949.44 for their sixteen-and-one-half-year marriage. The Show Cause Petition asked the court to issue an order requiring Green to appear in court and "show cause why he should not be found in contempt of Court for failure to comply with the terms of the Final Decree."

         On September 16, 2015, the circuit court entered an amended final decree (Amended Final Decree), nunc pro tunc to April 9, 2015. The Amended Final Decree stated that "[t]he sole purpose for the entry of [the Amended Final Decree] is to correct the date the [Amended] Pre-Marital Agreement was signed by the parties from March 18, 2004 to March 18, 2003." In its final paragraph, the Amended Final Decree stated that "this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements." Kellogg and Green agreed during oral argument before this Court that the Divorce Action remains pending on the circuit court's docket.

         On October 1, 2015, the circuit court entered an order which memorialized the granting of the motion to amend the Final Decree and denied and dismissed the Show Cause Petition (Show Cause Order). In denying the Show Cause Petition, the court found that "the Amended Pre-Marital Agreement, incorporated into the Final Decree, does not express in specific terms the requirements for when, where or in what form payment of any amount due shall be performed and therefore a Show Cause proceeding is improper."

         Thereafter, on April 29, 2016, Kellogg filed a separate breach of contract action in the circuit court against Green seeking $82, 949.44, plus attorney's fees and costs, for breach of the terms of the Agreements (Contract Action). As in the Show Cause Petition, Kellogg alleged that, pursuant to the Amended Pre-Marital Agreement, Green was "indebted to [Kellogg] in the sum of $5, 000" for each year of their sixteen-and-one-half-year marriage. In her complaint in the Contract Action, Kellogg also included the allegation that Green's liability "became liquidated and due and payable" as of the entry of the Final Decree.

         On July 14, 2016, Green filed a plea of res judicata in the Contract Action. Green argued that, pursuant to Rule 1:6, Kellogg was barred from bringing the Contract Action because she had sought identical relief in the Show Cause Petition in the Divorce Action and the circuit court had dismissed that petition on October 1, 2015 in the Show Cause Order, which was a final order. After a hearing, the circuit court sustained Green's plea and dismissed the Contract Action.

         Kellogg filed a motion to reconsider, in which she argued that the Show Cause Order was not a final order and could not be the basis for barring the Contract Action based upon res judicata. After a hearing, the circuit court entered an order denying Kellogg's motion to reconsider, having found that the Show Cause Order was a final order. The circuit court concluded that, "pursuant to Rule 1:6, and the Lee v. Spoden [, 290 Va. 235, 776 S.E.2d 798 (2015)] case, . . . the issues that were raised by the filing of the breach of contract [are] the same issues that were raised in the contempt proceeding, " and for those reasons, "res judicata applies to the [Contract Action]."

         Kellogg appealed. The following assignment of error was granted by this Court:

The trial court erred in holding that the contempt order, entered in a matter still pending, was a final order and barred Kellogg's claim under ...

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