PRESENT: All the Justices

CONNIE KELLOGG
                                                                     OPINION BY
v. Record No. 170643                                        JUSTICE S. BERNARD GOODWYN
                                                                   February 22, 2018
CHRISTOPHER B. GREEN


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

        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.”



       *
          Code § 20-121.1 permits a divorce action to be reinstated “upon the motion or
application of either party to the original proceedings, . . . for such purposes as may be necessary
to grant full relief to all parties.”
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          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:




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           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 the doctrine of Res
           Judicata.

                                                ANALYSIS

           Kellogg argues that the circuit court erred when it held that the Contract Action was

barred by res judicata, because “the element of finality is missing” from the Show Cause Order.

Kellogg contends that the Show Cause Order was not final because the Amended Final Decree

expressly retained the Divorce Action on the circuit court’s docket for enforcement of the

Agreements and the Divorce Action remains pending. Kellogg further contends that because the

Divorce Action remains pending, she could not appeal the Show Cause Order, and to find that

res judicata bars her from bringing a collateral action “would produce an absurd, and inequitable,

result.”

           In response, Green contends that the Show Cause Order was a final, conclusive order that

disposed of all of Kellogg’s claims for relief, regardless of whether the Divorce Action remains

pending. He further argues that Lee stands for the proposition that “if the claimant moves on a

cause of action and is denied, then the same claimant is barred from future actions based on the

same cause of action.” Accordingly, Green claims that Kellogg’s allegation of breach of contract

is barred because the Show Cause Petition and Contract Action are between the same parties,

arise out of the same cause of action, and request the same relief. Green further contends that

even if the Amended Final Decree retained the Divorce Action on the circuit court’s docket, the

Show Cause Order was still an appealable final order because it concerned a “domestic relations

matter” and Code § 17.1-405 “permits an appeal upon the denial of a matter raised under Title

20,” which governs domestic relations.




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        Whether an action is precluded by res judicata is a question of law that this Court reviews

de novo. Caperton v. A.T. Massey Coal Co., 285 Va. 537, 548, 740 S.E.2d 1, 7 (2013). The

party seeking to assert the defense of res judicata as a bar “must show by a preponderance of the

evidence that the claim or issue should be precluded by the prior judgment.” Id. (citation and

internal quotation marks omitted).

        Rule 1:6 governs claim preclusion under the doctrine of res judicata in Virginia. Lee, 290

Va. at 246, 776 S.E.2d at 804. In pertinent part, the Rule provides:

        A party whose claim for relief arising from identified conduct, a transaction, or an
        occurrence, is decided on the merits by a final judgment, shall be forever barred
        from prosecuting any second or subsequent civil action against the same opposing
        party or parties on any claim or cause of action that arises from that same conduct,
        transaction or occurrence, whether or not the legal theory or rights asserted in the
        second or subsequent action were raised in the prior lawsuit, and regardless of the
        legal elements or the evidence upon which any claims in the prior proceeding
        depended, or the particular remedies sought.

Rule 1:6(a) (emphasis added).

        Thus, a prerequisite for claim preclusion is a final judgment on the merits of a claim.

Although both elements of that prerequisite are potentially at issue in this case, Kellogg only

challenges whether the Show Cause Order was a final judgment, not whether it was a decision on

the merits. Therefore, in resolving this appeal, this Court will only consider whether the Show

Cause Order was a final judgment. Rule 5:17(c)(1)(i) (“Only assignments of error assigned in

the petition for appeal will be noticed by this Court.”).

        A final judgment is essential to the imposition of res judicata to bar a claim. Norris v.

Mitchell, 255 Va. 235, 239, 495 S.E.2d 809, 812 (1998). A decree that enters judgment for a

party is not final if it “expressly provides that the court retains jurisdiction to reconsider the

judgment or to address other matters still pending in the action before it.” Super Fresh Food

Mkts. v. Ruffin, 263 Va. 555, 561, 561 S.E.2d 734, 737 (2002); see also Johnson v. Woodard,

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281 Va. 403, 409-10, 707 S.E.2d 325, 328 (2011) (“[A] circuit court may avoid the application

of the 21-day time period in Rule 1:1 by including specific language stating that the court is

retaining jurisdiction to address matters still pending before the court.”).

       A decree is final only 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. Where further action of the court in the cause is
       necessary to give completely the relief contemplated by the court, the decree is
       not final but interlocutory.

Brooks v. Roanoke Cty. Sanitation Auth., 201 Va. 934, 936, 114 S.E.2d 758, 760 (1960)

(citations omitted).

       The Amended Final Decree stated that “this cause shall remain on the docket of [the

circuit court] for purposes of enforcing the terms of the Agreements.” Kellogg filed the Show

Cause Petition in an attempt to enforce the terms of the Agreements. In its Show Cause Order,

the circuit court dismissed the Show Cause Petition because it concluded that a show cause

petition was improper.

       The Show Cause Order did not contain any language to indicate that it was a final order

regarding the enforceability of the Agreements; there was no language indicating that there was

nothing further to be done in the action. There was no language in the Show Cause Order which

would bar the filing of a subsequent show cause petition or the attempted enforcement of the

Agreements in some other manner. Thus, the Show Cause Order did not render a final judgment

concerning the enforceability of the Agreements. There is no dispute that the matter is still

pending on the circuit court’s docket.

       Furthermore, a circuit court is “empowered to change a legal determination as long as it

retains jurisdiction over the proceeding before it.” Turner v. Wexler, 244 Va. 124, 128, 418

S.E.2d 886, 888 (1992). Because there was no language in the Show Cause Order indicating that



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the ruling was a final judgment, the circuit court retains jurisdiction and the ability to not only

reverse its dismissal of the Show Cause Petition, but also to grant a subsequent show cause

petition. Thus, it is clear that the Show Cause Order was not a final order for purposes of res

judicata as regards the enforceability of the Agreements.

       We note that this case differs from Lee due to the lack of a final judgment. In Lee, we

stated that “findings made in a contempt proceeding have the requisite finality and scope to be

accorded the preclusive effect of res judicata in subsequent proceedings.” 290 Va. at 247, 776

S.E.2d at 804-05. In so concluding, however, we still found that a necessary prerequisite to the

application of res judicata was a final judgment on the merits. Id. at 247, 776 S.E.2d at 804. In

Lee, we noted that “the contempt proceeding was clearly decided on the merits by a final

judgment.” Id.

       Here, unlike Lee, there was no final order entered regarding the claim that Green is

attempting to preclude by his assertion of res judicata. The reinstated Divorce Action retained

the matter on the court’s docket to enforce the Agreements. The only subsequent order entered,

the Show Cause Order, neither struck the Divorce Action from the docket nor found the

Agreements unenforceable. Because there was no relevant final judgment entered, res judicata

does not bar Kellogg’s Contract Action.

                                            CONCLUSION

       The ruling of the circuit court sustaining the plea of res judicata and dismissing the

Contract Action is reversed, and this case is remanded for further proceedings consistent with

this opinion.

                                                                       Reversed and remanded.




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