                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia


ALBERT K. BREEDING
                                           MEMORANDUM OPINION * BY
v.        Record No. 2238-95-3          JUDGE JOHANNA L. FITZPATRICK
                                               JULY 16, 1996
JANET D. BREEDING


             FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                     Charles H. Smith, Jr., Judge
            Robert Austin Vinyard (Vinyard & Moise, on
            brief), for appellant.

            David L. Scyphers (Johnson, Scyphers &
            Austin, P.C., on brief), for appellee.



      Albert K. Breeding (father) appeals the trial court's

decision ordering him to pay $30,500 in past due child support to

Janet D. Breeding (mother).      He argues that the trial court erred

in:   (1) denying his motion for rehearing when he did not receive

notice of the hearing, and (2) determining the arrearage amount

to be $30,500.   For the following reasons, we affirm the denial

of rehearing, but reverse and remand for recalculation of the

arrearage amount in accordance with this opinion.

      The parties were married on May 31, 1969 and had two
                                            1
children, Matthew Ryan and Nathan Tyler.        They separated on

April 15, 1985 and entered into a separation agreement on April

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
      1
      The record in this case consists of a written statement of
facts pursuant to Rule 5A:8(c).
18, 1985.   Paragraph 5 of the agreement provided, in pertinent

part, as follows:
               The Husband agrees to pay to the Wife
          for the support and maintenance of the two
          children, the sum of TWO HUNDRED ($200.00)
          DOLLARS per month. . . . When the Husband
          receives a raise in 1986, the amount of
          support shall be increased TWENTY FIVE
          ($25.00) DOLLARS per month for each child,
          and each year thereafter, when the Husband
          receives a raise, the amount of support shall
          be increased per child to an amount which is
          agreeable between the Husband and Wife, said
          amount not to be less than TWENTY FIVE
          ($25.00) DOLLARS per child per month.

The amended final decree of divorce entered on February 9, 1988

ordered father to pay child support of $300 per month "pursuant

to the terms of the agreement dated April 18, 1985, with yearly

increases as set forth in said agreement."

     In July 1992, mother filed a show cause petition in the

juvenile and domestic relations district court, alleging a child

support arrearage of $1,450.   In a July 30, 1992 order, the court

set an arrearage of $1,450 through July 1992 and determined that

father owed $143 for medical bills.   The court ordered father to

continue paying $300 per month in child support, plus $100 per

month towards the arrearage.   This order was not appealed by

either party.

     On October 17, 1994, mother filed for an increase in child

support in the juvenile and domestic relations district court,

and on October 28, 1994, she filed a show cause petition in the

same court, alleging a child support arrearage of $525 since the




                                 2
July 30, 1992 order.   At a hearing held December 20, 1994, the

juvenile and domestic relations district court judge:   (1)

determined an arrearage of $765 through December 1994; (2)

increased father's child support obligation to $472 per month;

and (3) ordered father to pay the arrearage within three months.

On December 28, 1994, mother appealed the December 20, 1994

order to the circuit court.

     Father failed to appear at the hearing scheduled for July

31, 1995, and the hearing was rescheduled for August 15, 1995.

Father also failed to appear at the August 15, 1995 hearing.    In

an August 28, 1995 order, the trial court found that father had

notice of the August 15, 1995 hearing.   The court also found as

follows:
           [T]he Court doth find that the parties agreed
           that the child support would increase each
           year when the defendant, Albert K. Breeding,
           received a pay raise, but in any event, no
           less than $25.00 per month per child. The
           Court finds that Albert K. Breeding did
           receive pay raises each year, and therefore
           that provision was applicable. Therefore,
           child support did increase by that amount
           each year since 1986, pursuant to the
           parties' agreement.


The court determined that an arrearage of $30,500 had accrued

since 1986 and increased father's child support obligation to

$472 per month.

     Father filed a motion for rehearing on September 14, 1995,

alleging that he had no notice of the August 15, 1995 hearing.

The trial court denied father's motion for rehearing on September




                                 3
25, 1995.   Father objected to the trial court's denial of his

request for a rehearing, arguing that the court's award of past

due child support arising before July 30, 1992 was barred by res

judicata.
                  DENIAL OF MOTION FOR REHEARING

     Father argues that the trial court erred in denying his

motion for rehearing because he had no notice of the August 15,

1995 hearing.
     "The decision whether to grant or deny a rehearing is within

the trial court's sound judicial discretion."   Hughes v. Gentry,

18 Va. App. 318, 326, 443 S.E.2d 448, 453 (1994).   In this case,

the trial court specifically found that father had notice of the

August 15, 1995 hearing and resolved any conflict in the

testimony against father.   Under these circumstances, we cannot

say that the trial court abused its discretion in denying

father's motion for rehearing.
             DETERMINATION OF CHILD SUPPORT ARREARAGE

     Father asserts that the trial court erroneously considered

any possible arrearage arising before July 30, 1992 in ordering

him to pay $30,500 in past due child support.   He argues that,

because mother did not appeal the July 30, 1992 juvenile court

order determining child support arrearage as of that date, any

consideration of arrearage arising before that date is barred by

res judicata.   We agree.

     Mother contends that father waived the defense of res



                                 4
judicata by failing to raise it before the trial court.       We

recognize that the defense of res judicata is "an affirmative one

and if not asserted below is deemed to have been waived."          Ward

v. Charlton, 177 Va. 101, 114, 12 S.E.2d 791, 795 (1941).          See

also Rule 5A:18.    However, under the Rule 5A:18 "ends of justice"

exception, this Court may consider the merits of a procedurally

defaulted issue "'when the record affirmatively shows [clear

error or] that a miscarriage of justice has occurred.'"       Tart v.
Commonwealth, 17 Va. App. 384, 391, 437 S.E.2d 219, 223 (1993)

(quoting Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274,

277 (1988)).   Because the record in this case shows clear error

by the trial court, we address the merits of father's argument.

     "Principles of res judicata preclude the court from

relitigating an issue that has been previously decided, even

though the earlier decision arguably may have been erroneous."

Hiner v. Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 811, 814

(1993).   "'A person seeking to assert res judicata as a defense

must establish:    (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.'"    Gottlieb v. Gottlieb, 19 Va. App. 77, 81,

448 S.E.2d 666, 669 (1994) (quoting Commonwealth ex rel. Gray v.

Johnson, 7 Va. App. 614, 618, 376 S.E.2d 787, 789 (1989)).

     In the instant case, the August 28, 1995 order attempted to

resolve the amount of child support arrearage arising before July



                                  5
30, 1992.   However, the amount of child support arrearage arising

prior to July 30, 1992 was already litigated and established by

the July 30, 1992 order.   Neither party appealed that

determination, and it became a final judgment.   Thus,

relitigation of a different amount of child support arrearage

accruing before July 30, 1992 was clearly barred by res judicata,

and the trial court erred in recalculating father's obligation

for that time period.
     Additionally, father argues that, at the most recent hearing

covering the time period after 1992, mother alleged an arrearage

of $525 and that his only notice was for an arrearage of that

amount.   "However, a court may grant appropriate relief even

though it is not specifically requested."   Taylor v. Taylor, 14

Va. App. 642, 649, 418 S.E.2d 900, 904 (1992).

     The issue of father's request for a new hearing is rendered

moot by the necessity to reverse the trial court's determination

of the amount of child support arrearage and remand for a

consideration of any arrearage arising after July 30, 1992.
                                             Affirmed in part,
                                             reversed in part,
                                             and remanded.




                                 6
