COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Powell and Senior Judge Annunziata Argued by teleconference

ANNA G. GIANARIS MEMORANDUM OPINION * BY v. Record No. 2379-09-4 JUDGE LARRY G. ELDER JULY 6, 2010 JOHN P. GIANARIS

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY J. Martin Bass, Judge Joseph A. Vance, IV, for appellant. John A. Mell (Mell & Frost, PC, on brief), for appellee.
Anna G. Gianaris (wife) appeals from a circui t court (trial court) de cision dismissing with prejudice her 2007 motion for judgment for past due spousal support. She alleged in her motion for judgment that her former spouse, John P. Gianaris (husband), owed her spousal support pursuant to the parties’ propert y settlement agreement (the agreement). The agreement was affirmed, ratified, and incorporated into the fi nal decree of divorce, but the decree was silent regarding whether the agreement was merged into th e decree. On appeal, wife contends the trial court erred in concluding its 2003 ruling grantin g husband’s petition to terminate spousal support owed pursuant to the final decree of divorce precl uded her from proceeding in this 2007 contract action to enforce the identical spousal support te rms contained in the parties’ agreement. Husband contends wife’s appeal is not properly before this Court because it involves a contract matter, over which this court has no jurisdiction, ra ther than an appeal of a domestic relations

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - matter, over which this Court does have appe llate jurisdiction. We conclude appellate jurisdiction properly lies in this Court and that res judicata bars wife’s claim. Thus, we affirm.
I. BACKGROUND The parties were married in 1970, separa ted in 1989, and entered into a property settlement agreement that same year. The ag reement provided husband would pay wife monthly spousal support that would te rminate upon wife’s remarriage or death. The agreement also provided that the parties would ha ve the agreement “ratified, affi rmed and incorporated in and made an enforceable part of any decree or order entered” in their divorce. In 1994, the trial court entered a final decree of divorce that “affirmed, ratified, and incorporated [the agreement] by reference.” The decree did not indicate whethe r the agreement was merged into it. Wife’s attorney endorsed the decree without objection. In 1999, husband filed a petition to terminate support. He alleged wife “ha[d] been habitually cohabiting with anothe r person in a relationship analogous to a marriage for more than one year on or after July 1, 1997,” and that the agreement containe d “no provision . . . that would allow spousal support to continue after [such] cohabitation.” Thus, he argued, Code § 20-109 entitled him to have the court term inate his duty to pay support. Th at code section provides that a court may terminate support upon clear and co nvincing evidence that the spouse receiving support has habitually cohabitated in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, “unless (i ) otherwise provided for by stipulation or contract or (ii) the spouse r eceiving support proves by a preponderance of the evidence that termination of such support would constitute manife st injustice.” The trial court ruled spousal support would be terminated because the property settlement agreement was “affirmed, ratified and incorporated” into the final decree and th at, per Code § 20-109, wife’s cohabitation in a- 3 - relationship analogous to marriage brought about the same result as remarriage itself— termination of husband’s obligation of support. Wife did not appeal that ru ling to this Court, and husband ceased paying support. On May 2, 2007, counsel for wife filed a docum ent styled “Motion for Judgment” in the trial court. She noted in her motion the par ties’ agreement that was “affirmed, ratified, and incorporated by reference” into the final decr ee of divorce and husband’ s obligation thereunder to pay her monthly support except in the event of death or remarriage. She averred that despite the fact that she had not died or remarried, husband had failed to make any payments of spousal support since July 1999. She sought arrearages , interest, attorney’s fees and costs. Husband demurred, contending the agreement was merged into the decree and that, as a result, wife could seek to have it enforced only as part of the decree. Husband also filed an answer and a plea in bar, alle ging the trial court had terminat ed the award of support based on wife’s cohabitation and attaching a copy of the termination order. He pleaded four affirmative defenses, including res judicata and collateral estoppel. The trial court rejected husband’s claim of merger, ruling wife “is not precluded from pursuing a contract action,” and denied the demu rrer. After hearing ev idence and argument on wife’s motion for judgment, the trial court ruled in husband’s fa vor, concluding that the same parties were involved and the same spousal s upport obligation containe d in the parties’ 1989 agreement was at issue in both the 1999 and the 2007 proceedings and that the tr ial court had authority to entertain the petition on de novo appeal and to enter fina l judgment. It concluded that even if case decisions issued subseque nt to the earlier ruling on husband’s 1999 motion to terminate established the trial court erred in holding the language in Code § 20-109 applied to permit termination of spousal support based on wi fe’s cohabitation, wife did not appeal that ruling to this Court, and the judgment became final for purposes of res judicata . Because- 4 - husband was not in default under the contract, the tr ial court found wife was not entitled to fees under the agreement. The trial court dismissed wife’s motion for judgment with prejudice. Wife noted the instant appeal.
II. ANALYSIS
A. OUR JURISDICTION TO CONSIDER THIS APPEAL In pertinent part, Code § 17.1-405 provides as follows: Any aggrieved party may appeal to the Court of Appeals from:
* * * * * * * 3. Any final judgment, order, or decree of a circuit court involving: a. Affirmance or annulment of a marriage; b. Divorce; c. Custody; d. Spousal or child support; e. The control or disposition of a child; [or] f. Any other domestic relations matter arising under Title 16.1 or Title 20 . . . . Interpreting the statute in Bullis v. Bullis , 22 Va. App. 24, 31, 467 S.E.2d 830, 834 (1996), we noted that “[a]lthough th[e ] action [at issue there] was in stituted in the circuit court for the purpose of domesticating and enforcing a judgment of another state, the subject matter of the underlying issue involved a domestic relation s matter.” We concluded, based on earlier decisions, that “jurisdiction over an appeal from a final judgment must be based upon an assessment of the underlying cause .” Id. (emphasis added).- 5 - Our Supreme Court applied similar principles to a case involving a separation agreement, indicating jurisdiction over the appeal of that matter properl y lay in this Court. In Samuel v. Samuel , No. 011946 (Va. Sept. 20, 2001), divorcing spouses entered into a property settlement agreement in which the husband agreed to pay th e wife certain monies on a weekly basis. See Green v. Commonwealth , 37 Va. App. 92, 94 n.2, 554 S.E.2d 108, 109 n.2 (2001) ( en banc ), rev’d on other grounds , 263 Va. 191, 557 S.E.2d 230 (2002). A final decree in the Samuels’ divorce case was entered in 1998, and in 2001, the wife filed a motion for judgment seeking damages for the husband’s alleged breach of the agreement. See id. The circuit court found for husband, and when wife appealed to the Supreme Cour t, that Court transferre d the appeal to this Court “in a one-sentence order, ” stating as follows: “‘Pu rsuant to Code § 8.01-677.1, it is ordered that this case be and hereby is transferred to the Cour t of Appeals of Virginia.’” Id. In keeping with our prior decisions in this area and the Supreme Court’s transfer order in Samuel , we conclude jurisdiction over wi fe’s appeal in this case also properly lies in this Court.
B. PRESENT ENFORCEABILITY OF THE PROPERTY SETTLEMENT AGREEMENT The trial court concluded wife’s presen t action on the contract is barred by res judicata

. Husband argues, in addition, that the contract merged into the decree and may no longer be enforced in a contract action, obviating the need to reach the res judicata issue. Wife contends that even if the contract was merged, it remains en forceable in a separate contract action such as this one. We conclude that we need not decide whether the agreement merged into the decree such that it was enforceable only through that in strument because, even assuming the agreement maintained an existence separate from the divorce decree such that its terms were enforceable in contract, the present cause of action is barred by res judicata

.- 6 - The trial court discussed res judicata and collateral estoppel and ruled “[t]he [spousal support] issue between these parties is a matter ad judged.” Settled principles provide that the

term res judicata actually “encompasses four preclusive effects, each conceptually distinct, which [include] . . . [ res judicata- ]bar, and collateral estoppel.” Bates v. Devers , 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974). Res judicata -bar, commonly referred to as simply res judicata , provides that “[a] valid, personal judgment on the merits . . . bars relitigation of the same cause of action, or any part thereof wh ich could have been litigated, be tween the same parties and their privies.” Id. at 670-71, 202 S.E.2d at 920-21 (footnote omitted). Collateral estoppel “is the preclusive effect . . . based upon a collateral and different cause of action , . . . [in which] the parties to the first action and their privies are prec luded from litigating any issue of fact [or law] actually litigated and essential to a valid and final personal judgment in the first action.” Id. at 671, 202 S.E.2d at 921 (footnote omitted). Where the issue in the prior proceeding was actually litigated and the parties are the same, the preclusive effect of the doctrines of res judicata and collateral estoppel operates in the same basic fashion. 1 Finally, “[a] judgment on the merits, fairly rendered, by a court of competent jurisdiction, having cogn izance both of the parties and the subject matter , however erroneous it may be , is conclusive on the parties and their privies until re versed or set aside in a direct proceeding for that purpose and is not amenable to collateral attack.” Storm v. Nationwide Mut. Ins. Co. , 199 Va. 130, 133, 97 S.E.2d 759, 761 (1957) (quoting 8 Michie’s Jurisprudence, Former Adjudication § 10 (emphasis added)).

1 The Supreme Court has recogni zed that even where the f act of preclusion is clear, which type of res judicata supports that preclusion may not be clear. Bates , 214 Va. at 672 & n.8, 202 S.E.2d at 921-22 & n.8 (making this obser vation in the context of attempting to distinguish between a cause of action, for purposes of res judicata -bar, which usually comprises several issues, and a single i ssue, for purposes of estoppel).- 7 - Here, at husband’s instigation, he and wife previously litiga ted the issue of whether he had an ongoing duty to pay spousal support to wife . Husband filed a petition to terminate his spousal support obligation under the agreement, as incorporated into th e decree, arguing the amendments to Code § 20-109 permitted that term ination. The trial court granted the petition and terminated husband’s support obligation. Whethe r or not the trial court’s ruling was correct, wife did not challenge that ruli ng on appeal, and it became a valid final judgment on the merits of the issue of whether husband owed wife support under the agreement. We agree with the trial court’s ruling that whether husband had an ongoing duty to pay spousal support was “a matter adjudged” and that wife could not relitigate this issue. Even assuming the parties’ agreement maintained a separate existence from the decree, as wife avers, the trial court concluded in a prior proceeding involving the same parties th at husband no longer owed wife spousal support pursuant to that agreement, and wife did not appeal that determination.
III. For these reasons, we conclude appellate jurisdiction properly lie s in this Court. We hold further that res judicata bars wife’s present claim on the agreement. Thus, we affirm. 2
Affirmed.

2 Because we affirm the decision that wife is not entitled to spousal support under the agreement, we decline wife’s request to remand w ith instructions to the trial court to determine the amount of attorney’s fees ow ed to wife under the agreement.