COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Huff, Judges Chafin and Russell 

Argued by teleconference 

TIMOTHY M. BARRETT 

 

v. Record No. 1613-14-3 

 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

 ex rel. VALERIE JILL RHUDY BARRETT AND 

 VALERIE JILL RHUDY MINOR 

MEMORANDUM OPINION*

 BY 

 CHIEF JUDGE GLEN A. HUFF 

TIMOTHY M. BARRETT MAY 19, 2015 

 

v. Record No. 1614-14-3 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

 ex rel. VALERIE JILL RHUDY BARRETT AND 

 VALERIE JILL RHUDY MINOR 

 FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

William N. Alexander, II, Judge Designate 

 Timothy M. Barrett, pro se. 

 Steven R. Minor (Elliott Lawson & Minor, on briefs), for appellee 

Valerie Jill Rhudy Minor. 

 No brief or argument for appellee Commonwealth of Virginia, 

Department of Social Services, Division of Child Support 

Enforcement, ex rel. Valerie Jill Rhudy Barrett. 

These cases are the latest in an extensive series of appeals filed by Timothy M. Barrett 

(“appellant”) arising from his divorce from Valerie Jill Rhudy Minor (“appellee”) and the 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
- 2 - 

resulting custody, visitation, and support issues.1

 The current dispute arose from orders of the 

Grayson County Circuit Court (“Grayson Circuit Court”) that modified appellant’s child support 

obligation (“support case”) and found appellant in contempt (“contempt case”) for failing to pay 

past due support. These two companion cases were appealed to this Court, which affirmed on all 

issues but one in the child support case, Barrett v. Commonwealth, Dep’t of Soc. Serv., Div. of 

Child Support Enforcement ex rel. Barrett, No. 1382-10-3, 2011 Va. App. LEXIS 245, at *7 

(Va. Ct. App. July 26, 2011) (remanding “for a recalculation of the [child] support award”), and 

reversed on one of appellee’s cross-assignments of error in the contempt case, Barrett v. 

Commonwealth, No. 1381-10-3, 2011 Va. App. LEXIS 246, at *35-36 (Va. Ct. App. July 26, 

2011) (remanding “for a determination of the effective date of modification of the support 

order”). Upon remand, the Grayson Circuit Court granted appellant’s motion to transfer venue 

of the cases to the Circuit Court for the City of Bristol (“Bristol Circuit Court”). The Bristol 

Circuit Court, however, dismissed the cases on the ground that it lacked jurisdiction under Code 

§ 16.1-296(J). It is from this dismissal order that appellant appeals, presenting a total of thirty 

assignments of error. Both appeals, however, share fourteen identical assignments of error: 

1. The [Bristol Circuit C]ourt erred in not disqualifying Mr. Minor 

 as the attorney for appellee . . . for violating the Rules of 

 Professional Conduct. 

2. The [Bristol Circuit C]ourt erred in failing to consider and in 

 not granting petitioner’s motion that appellee . . . decide if she 

 would represent herself or have DCSE represent her. 

 1

 Barrett v. Barrett, No. 1123-04-1, 2005 Va. App. LEXIS 168 (Va. Ct. App. Apr. 26, 

2005); Barrett v. Barrett, No. 0992-05-3, 2005 Va. App. LEXIS 458 (Va. Ct. App. Nov. 15, 

2005); Barrett v. Barrett, No. 0902-06-3, 2006 Va. App. LEXIS 463 (Va. Ct. App. Oct. 17, 

2006); Barrett v. Commonwealth, Dep’t of Soc. Serv., Div. of Child Support Enforcement ex rel. 

Barrett, No. 1332-07-3, 2008 Va. App. LEXIS 210 (Va. Ct. App. Apr. 29, 2008); Barrett v. 

Barrett, No. 0753-10-3, 2011 Va. App. LEXIS 21 (Va. Ct. App. Jan. 25, 2011); Barrett v. 

Commonwealth, No. 1381-10-3, 2011 Va. App. LEXIS 246 (Va. Ct. App. July 26, 2011); Barrett 

v. Commonwealth, Dep’t of Soc. Serv., Div. of Child Support Enforcement ex rel. Barrett, 

No. 1382-10-3, 2011 Va. App. LEXIS 245 (Va. Ct. App. July 26, 2011). 
- 3 - 

3. The [Bristol Circuit C]ourt erred in failing to recuse itself after 

 pre-judging the legal legitimacy of the venue transfer. 

4. The [Bristol Circuit C]ourt erred in ruling that Code 

 § 16.1-296(J) provides for exclusive jurisdiction in the 

 [Grayson Circuit Court]. 

5. The [Bristol Circuit C]ourt erred in not recognizing the 

 [Grayson Circuit Court’s] authority to transfer venue under 

 Code § 16.1-243 when read in light of Code § 16.1-296(I). 

6. The [Bristol Circuit C]ourt erred in not recognizing the 

 [Grayson Circuit Court’s] authority to transfer venue under 

 Code § 8.01-257 et. seq. incident to its original jurisdiction 

 granted by an appeal de novo. 

7. The [Bristol Circuit C]ourt erred in failing to see the issue in 

 this case as venue and not jurisdiction after finding the 

 [Grayson Circuit Court] had jurisdiction. 

8. The [Bristol Circuit C]ourt erred in failing to be bound by the 

 rulings of the [Grayson Circuit Court] and this Court on this 

 very issue. 

9. The [Bristol Circuit C]ourt erred in failing to recognize that 

 venue is only proper in the City of Bristol, which is where 

 [appellee] and the children reside. 

10. The [Bristol Circuit C]ourt erred in failing to apply the 

 doctrine of clean hands to [appellee’s] motion to dismiss. 

11. The [Bristol Circuit C]ourt erred in denying [appellant] due 

 process when it ruled one way from the bench and then 

 entered an order which was not reflected of that bench ruling. 

12. The [Bristol Circuit C]ourt erred in entering a written order 

 that does not reflect its oral order. 

13. Assuming the [Bristol Circuit C]ourt was right on the 

 Jurisdiction/Venue issue, [it] erred in dismissing this case 

 rather than declaring the [Grayson Circuit Court] venue 

 transfer orders void and returning the case back to Grayson 

 County for adjudication. 

14. The [Bristol Circuit C]ourt erred in failing to deal with the 

 appeal bond, depriving . . . appellant of his property without 

 due process of law. 
- 4 - 

Additionally, in case No. 1613-14-3, appellant argues that “[t]he [Bristol Circuit C]ourt erred in 

failing to consider and not granting [appellant’s] motion to disqualify DCSE as a party in this 

case.” Furthermore, in case No. 1614-14-3, appellant argues that “[t]he [Bristol Circuit C]ourt 

erred in denying [appellant] due process by failing to give him notice and opportunity to be heard 

before dismissing the contempt matter.” 

In both cases, appellee presents three identical cross-assignments of error: 

17. The [Bristol Circuit Court] erred by its failure to specify that 

the dismissals were “without prejudice.” 

18. The [Bristol Circuit Court] erred by its failure to enforce the 

appeal bond, because this Court’s denial of [appellee’s] 

mootness motion [in the 2011 appeals] is the law of the case 

on payment of the arrearage. 

19. The [Bristol Circuit Court] erred by its failure to enforce the 

appeal bond, because [appellant] is the one who is judicially 

estopped by his successful representations to this Court from 

claiming that the arrearage was paid. 

Additionally, appellee asks this Court to award her attorneys’ fees and costs associated with 

these appeals. For the following reasons, this Court affirms the rulings of the Bristol Circuit 

Court. 

I. BACKGROUND 

“When reviewing a [trial] court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citing Wright v. 

Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002)). “That principle requires us to 

‘discard the evidence’ of [appellant] which conflicts, either directly or inferentially, with the 

evidence presented by [appellee] at trial.” Id. (quoting Wactor v. Commonwealth, 38 Va. App. 

375, 380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence is as follows. 
- 5 - 

On June 4, 2007, the Grayson Circuit Court ordered appellant to pay appellee $1,511 per 

month in child support (“2007 order”). In 2009, appellee brought an action against appellant in 

the Grayson County juvenile court (“juvenile court”) to enforce the 2007 order, but the juvenile 

court dismissed appellee’s motion. Consequently, appellee appealed to the Grayson Circuit 

Court. In 2010, the Grayson Circuit Court entered final orders (“2010 orders”) slightly 

modifying appellant’s support obligation (“support case”), and fixing his arrearage at $9,896 for 

unpaid support between January and August of 2009 (“contempt case”). Appellant appealed 

both of these cases to this Court (“2011 appeals”), causing the Grayson Circuit Court to set an 

appeal bond in the amount of $12,000. 

Before this Court ruled on the 2011 appeals, however, the Department of Child Support 

Enforcement (“DCSE”) brought an enforcement action against appellant, resulting in the juvenile 

court ordering appellant to pay $22,399.20 to DCSE. Appellant complied with this order (“2011 

payment”). Consequently, appellee moved this Court to dismiss appellant’s appeal in the 

contempt case as moot (“mootness motion”). Appellant opposed the mootness motion, however, 

arguing that he “has not paid . . . [a]ppellee a dime” of the $9,896. Specifically, appellant argued 

that there was an agreement with DCSE that the 2011 payment was for the “current arrears” as of 

June 2011, “leav[ing] the issue of what to do with the $9,896 up to this Court.” 

This Court denied appellee’s mootness motion by order dated July 21, 2011. A few days 

later, this Court ruled on the 2011 appeals. In the contempt case, this Court agreed with 

appellee’s cross-assignment of error regarding the retroactivity of any modification to support 

and remanded the case “to determine the appropriate date of retroactivity . . . .” Barrett, No. 

1381-10-3, 2011 Va. App. LEXIS 246, at *42. In the support case, this Court held that appellant 
- 6 - 

prevailed on one out of “essentially twenty-seven assignments of error”2

 and remanded the case. 

Barrett, No. 1382-10-3, 2011 Va. App. LEXIS 245, at *21-22. This Court also awarded appellee 

attorneys’ fees in both cases. 

On remand to the Grayson Circuit Court, appellee asked the court to disburse the appeal 

bond for the costs of appeal and the arrearage, citing appellant’s representations to this Court that 

the arrearage for January through August of 2009 was still unpaid. Responding, appellant argued 

that the arrearage was paid because the 2011 payment “included the arrears of the present 

contempt action.” The Grayson Circuit Court concluded that appellant had paid the arrearage, 

but kept the appeal bond on deposit with the Clerk, allowing only disbursement of the costs from 

the appeals.3

In 2011, appellee married Steven R. Minor (“Minor”) and moved, with the parties’ 

children, to Bristol, Virginia. Consequently, in August 2012, appellant moved the Grayson 

Circuit Court to transfer the cases to the Bristol Circuit Court. After a hearing on November 9, 

2012, the Grayson Circuit Court granted appellant’s motions over appellee’s objection. 

At a hearing before the Bristol Circuit Court in January 2014 regarding custody and 

visitation of the children, a case that is also on appeal before this Court,4

 Judge Alexander 

commented regarding the transfer orders of a third5

 case between the parties that was also 

 2

 Specifically, this Court found that “the trial court erred in not including gifts from 

[appellee’s] family and church in her gross income for purposes of computing child support.” 

Barrett, 2011 Va. App. LEXIS 245, at *22. 

3

 Appellee filed a petition for writ of mandamus with this Court seeking relief of the 

Grayson Circuit Court’s decision not to order disbursement of the remainder of the appeal bond. 

This Court denied the petition. Minor v. Circuit Court of Grayson County, Record No. 

0102-13-3 (Va. Ct. App. Feb. 25, 2013). 

4

 Case No. 0173-14-3. 

5

 This third case is not on appeal before this Court. 
- 7 - 

transferred to Bristol from the Grayson Circuit Court. Specifically, Judge Alexander questioned 

the validity of the Grayson Circuit Court’s venue transfer orders. Two months later, appellee 

moved the Bristol Circuit Court to dismiss the present cases for lack of subject matter 

jurisdiction. In response, appellant moved for Judge Alexander of the Bristol Circuit Court to 

recuse himself on the ground that he had pre-judged the issue at the hearing in January 2014, for 

Minor to be disqualified as appellee’s counsel, and for DCSE to be dismissed as a party to the 

case. 

At the hearing on these motions, Judge Alexander found 1) that the circumstances did not 

require that he recuse himself, 2) that the Bristol Circuit Court lacked subject matter jurisdiction 

under Code § 16.1-196(J), and 3) that the transfer orders from the Grayson Circuit Court were 

“void.” By written motion, appellee asked the Bristol Circuit Court to reconsider whether it had 

the power to rule on the validity of the Grayson Circuit Court’s transfer orders given its ruling on 

subject matter jurisdiction. The Bristol Circuit Court agreed with appellee and, in its written 

order, explained that “the court has modified the oral ruling and now finds, only, that the court 

does not have subject matter jurisdiction to try these cases.” These appeals followed. 

II. Analysis 

A. Code § 16.1-296(J) 

In both of the cases before this Court, appellant presents six identical assignments of 

error that challenge the Bristol Circuit Court’s dismissal of the cases under Code § 16.1-296(J). 

Specifically, appellant argues that the dismissal of the cases was error because 1) Code 

§ 16.1-296(J) does not provide for exclusive jurisdiction in the Grayson Circuit Court; 2) the 

Grayson Circuit Court had authority to transfer venue to the Bristol Circuit Court pursuant to 

Code §§ 16.1-243 and -296(I); 3) the Grayson Circuit Court had authority to transfer venue to 

the Bristol Circuit Court pursuant to Code § 8.01-257; 4) the issue in this case is one of venue, 
- 8 - 

not jurisdiction; 5) the Bristol Circuit Court was bound by the ruling of the Grayson Circuit 

Court transferring venue; and 6) the Bristol Circuit Court failed to recognize that venue is only 

proper in Bristol. 

In order to address appellant’s arguments, this Court must first determine what impact 

Code § 16.1-296(J) has on the Bristol Circuit Court’s jurisdiction. “The jurisdiction of a court to 

provide for child support pursuant to a divorce is purely statutory.” Cutshaw v. Cutshaw, 220 

Va. 638, 641, 261 S.E.2d 52, 54 (1979) (citing Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 

500, 500 (1971)). Therefore, these are issues of “statutory interpretation,” which present pure 

questions of law that this Court reviews “de novo.” Conyers v. Martial Arts World of Richmond, 

Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citing Crawford v. Haddock, 270 Va. 524, 

528, 621 S.E.2d 127, 129 (2005)). 

“‘Jurisdiction is a word of many, too many meanings.’” Williams v. Williams, 61 

Va. App. 170, 175, 734 S.E.2d 186, 188 (2012) (quoting United States v. Vanness, 85 F.3d 661, 

663 n.2 (D.C. Cir. 1996)). Indeed, the term embraces several concepts including subject matter 

jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of 

cases or controversies; territorial jurisdiction or venue, which is authority over persons, things, or 

occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a 

party or if the proceeding is in rem seizure of a res; and “the other conditions of fact . . . which 

are demanded by the unwritten or statute law as the prerequisites of the authority of the court to 

proceed to judgment or decree.” Farant Inv. Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 

141, 144 (1924). 

While these elements are necessary to enable a court to proceed to 

a valid judgment, there is a significant difference between subject 

matter jurisdiction and the other “jurisdictional” elements. Subject 

matter jurisdiction alone cannot be waived or conferred on the 

court by agreement of the parties. Lucas v. Biller, 204 Va. 309, 
- 9 - 

313, 130 S.E.2d 582, 585 (1963). A defect in subject matter 

jurisdiction cannot be cured by reissuance of process, passage of 

time, or pleading amendment. While a court always has 

jurisdiction to determine whether it has subject matter jurisdiction, 

a judgment on the merits made without subject matter jurisdiction 

is null and void. Barnes v. American Fert. Co., 144 Va. 692, 705, 

130 S.E. 902, 906 (1925). Likewise, any subsequent proceeding 

based on such a defective judgment is void or a nullity. Ferry Co. 

v. Commonwealth, 196 Va. 428, 432, 83 S.E.2d 782, 784 (1954). 

Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). 

The above passage from Morrison, “‘reflects the long-standing distinction between 

subject matter jurisdiction, which cannot be granted or waived . . . , and territorial jurisdiction or 

venue[, which] goes to the authority of the court to act in particular circumstances or places and 

is waived if not properly and timely raised.” Porter v. Commonwealth, 276 Va. 203, 229, 661 

S.E.2d 415, 427 (2008). One significant “consequence of the non-waivable nature of the 

requirement of subject matter jurisdiction is that attempts are sometimes made to mischaracterize 

other serious procedural errors as defects in subject matter jurisdiction to gain an opportunity for 

review of matters not otherwise preserved.” Morrison, 239 Va. at 170, 387 S.E.2d at 756 (citing 

Restatement (Second) of Judgments, § 11 (1980)). 

The Supreme Court of Virginia, however, “has recognized a critical distinction between a 

lack of subject matter jurisdiction and ‘the unique statutory framework whereby . . . circuit 

court[s] acquire the authority to exercise their subject matter jurisdiction.’” Marrison v. Fairfax 

Cnty. Dep’t of Family Servs., 59 Va. App. 61, 68, 717 S.E.2d 146, 149 (2011) (emphasis added) 

(quoting Nelson v. Warden of Keen Mt. Corr. Ctr., 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001)); 

see also Watkins v. Fairfax Cnty. Dep’t of Family Servs., 42 Va. App. 760, 774 n.12, 595 S.E.2d 

19, 26 n.12 (2004) (“the term ‘jurisdiction’ has been loosely used by the Commonwealth’s 

appellate courts to encompass under one ‘shorthand’ term, the concept of subject matter 
- 10 - 

jurisdiction and the legally distinct but related concept . . . [of] the ability of a court to exercise 

its jurisdiction” (emphasis added)). 

This distinction between a court having subject matter jurisdiction and having the ability 

to exercise subject matter jurisdiction occurs because “where a statutory directive is merely 

directory and procedural, as opposed to mandatory and jurisdictional, failure to comply with the 

statutory requirement does not necessarily divest the court of the power to exercise its subject 

matter jurisdiction.” Marrison, 59 Va. App. at 68, 717 S.E.2d at 149-50 (citing Jamborsky v. 

Baskins, 247 Va. 506, 511, 442 S.E.2d 809, 814 (2008)). “The plain language of a statute 

determines whether it is mandatory and jurisdictional or directory and procedural.” Id. at 69, 717 

S.E.2d at 150. Specifically, when the term “shall” is used “in a statute requiring action by a 

public official, [it] is directory and not mandatory unless the statute manifests a contrary intent.” 

Id. (citing Jamborsky, 247 Va. at 511, 442 S.E.2d at 638). To determine whether a statute 

“manifests a contrary intent,” this Court generally looks to whether the statute’s plain language 

contains “prohibitory or limiting language.” Jamborsky, 247 Va. at 511, 442 S.E.2d at 638. 

In the present cases, the Bristol Circuit Court had subject matter jurisdiction under Code 

§ 17.1-513, which provides to circuit courts “appellate jurisdiction in all cases, civil and 

criminal, in which an appeal . . . may, as provided by law, be taken to or allowed by such courts 

. . . from or to the judgments or proceedings of any inferior tribunal.” The exercise of this 

subject matter jurisdiction, however, is subject to the “‘unique statutory framework whereby . . . 

circuit court[s] acquire the authority to exercise their subject matter jurisdiction.’” Marrison, 59 

Va. App. at 68, 717 S.E.2d at 149 (emphasis added). Here, that statutory framework is outlined, 

in part, via the provisions of Code § 16.1-296. This Court has previously held that Code 

§ 16.1-296(D) is “directory and procedural,” not “mandatory and jurisdictional.” Boatright v. 

Wise Cnty. Dep’t of Soc. Servs., 64 Va. App. 71, 80, 764 S.E.2d 724, 729 (2014) (holding that 
- 11 - 

Code § 16.1-296(D) is directory and procedural because it directs the judge of the circuit court – 

that is, a public official – on how to proceed in a case). Notwithstanding, this Court holds that 

the plain language of Code § 16.1-296(J), which provides that “the appeal shall be taken to the 

circuit court in the same locality as the juvenile court,” manifests an intent that the provision be 

construed as mandatory and jurisdictional, rather than directory and procedural. (Emphasis 

added.) 

Code §§ 16.1-296(A) and -296(J) specify mandatory requirements in the unique statutory 

framework that must occur before a particular circuit court acquires the authority to exercise its 

subject matter jurisdiction over a particular case. Specifically, subsection (A) provides that 

“[f]rom any final order or judgment of the juvenile court . . . an appeal may be taken to the 

circuit court within 10 days from the entry of a final judgment . . . .” This subsection makes no 

directive to the court, but rather details the events that must occurr before the circuit court can 

hear the appeal de novo. As part of the unique statutory framework to exercise subject matter 

jurisdiction, “failure to comply with [Code § 16.1-296(A)] precludes the exercise of jurisdiction 

by the circuit court.” Blevins v. Prince William Cnty. Dep’t of Soc. Servs., 61 Va. App. 94, 101, 

733 S.E.2d 674, 678 (2012) (emphasis added). Simply, if an appeal is not taken “within 10 days 

from entry of a final judgment” by the juvenile court, then the circuit court cannot hear the 

appeal because, although it has subject matter jurisdiction to hear appeals of final orders from 

juvenile courts, it has not acquired the authority to exercise this subject matter jurisdiction. 

Similar to subsection (A), the framework laid out in subsection (J) is mandatory because 

it is a condition precedent that must exist before the circuit court may exercise its authority. 

Although Virginia appellate courts have held that the word “shall” is most often directory and 

procedural instead of mandatory and jurisdictional, this rule applies when the word “shall” is 

dictating action to be done by a public official. Marrison, 59 Va. App. at 69, 717 S.E.2d at 150 
- 12 - 

(“[T]he use of the word ‘shall’ in a statute requiring action by a public official, is directory and 

not mandatory.” (emphasis added)). But the requirements of Code § 16.1-296(J) are not directed 

at a public official, such as the judge of the circuit court. Rather, it details events that must take 

place before the circuit court can hear an appeal. 

Considering these circumstances, the plain language of Code § 16.1-296(J) manifests an 

intent that, after a case has been transferred to a juvenile court via Code § 20-79(c) like the 

present cases, only by taking an appeal of that case to “the circuit court of the same locality” 

does the circuit court acquire the authority to exercise its subject matter jurisdiction. Applying 

the above principles to the present cases, this Court holds that, although all circuit courts have 

subject matter jurisdiction to hear appeals from final juvenile court orders, only the Grayson 

Circuit Court acquired the authority to exercise this jurisdiction in the present cases. 

Accordingly, the Bristol Circuit Court did not err by dismissing them.6

 

As the Bristol Circuit Court lacked the authority to exercise its subject matter jurisdiction 

in the present cases, any subsequent order on the merits of the cases would have been “null and 

void.” Williams, 61 Va. App. at 176, 734 S.E.2d at 189. Accordingly, the following 

assignments of error, which appear verbatim in both cases, are moot: 

 The [Bristol Circuit C]ourt erred in failing to consider and in 

not granting [appellant’s] motion that appellee . . . decide if she 

would represent herself or have DCSE represent her. 

 6

 Notwithstanding, appellant argues, citing to Code §§ 8.01-257, 16.1-243, and 

16.1-296(I), that the Grayson Circuit Court had authority to transfer venue of the case to the 

Bristol Circuit Court. This argument fails because it attempts to use the venue statutes to allow a 

circuit court to hear a case when it otherwise lacks authority to exercise subject matter 

jurisdiction. Indeed, it is well-settled that judgments “made without subject matter jurisdiction 

[are] null and void.” Williams, 61 Va. App. at 176, 734 S.E.2d at 189. Appellant also attempts 

to argue that the Bristol Circuit Court could not dismiss the case because it was “bound” by the 

Grayson Circuit Court’s ruling that transferred venue. This argument, however, ignores the fact 

that subject matter jurisdiction can be challenged “by all persons, anywhere, at any time, or in 

any manner.” Winslow v. Commonwealth, 62 Va. App. 539, 544, 749 S.E.2d 563, 566 (2013). 
- 13 - 

 The [Bristol Circuit C]ourt erred in failing to apply the doctrine 

of clean hands to appellee[’s] . . . motion to dismiss. 

Additionally, the following assignment of error from Case No. 1613-14-3 is moot: 

 The [Bristol Circuit C]ourt erred in failing to consider and in 

not granting [appellant’s] motion to disqualify DCSE as a party 

in this Case. 

B. Disqualification of Minor 

In the first assignment of error of both cases, appellant contends the Bristol Circuit Court 

erred “in not disqualifying [Minor] as the attorney for appellee . . . for violating the Rules of 

Professional Conduct.” 

It is well established that this Court will not consider an argument on appeal which was 

not presented to the trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 

S.E.2d 630, 631 (1991) (citing Rule 5A:18). This Court will also decline to consider an 

argument on appeal if the trial court failed to rule upon appellant’s objection below. Ohree v. 

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998). Indeed, Code § 17.1-405, 

which provides this Court with “[a]ppellate jurisdiction,” provides that an aggrieved party may 

appeal to this Court from a “final decision of a circuit court,” Code § 17.1-405(1), “a final 

decision of the [commission],” Code § 17.1-405(2), or “a final judgment, order or decree of a 

circuit court” regarding domestic relations matters, Code § 17.1-405(3). When there is no such 

final decision, judgment, order or decree regarding a particular issue, then “there is no ruling for 

[this Court] to review on appeal.” Ohree, 26 Va. App. at 308, 494 S.E.2d at 489 (citing Fisher v. 

Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993)). 

In the present case, the circuit court did not rule on whether Minor should be dismissed as 

appellee’s counsel. The Supreme Court addressed a similar circumstance in Riner v. 

Commonwealth, 268 Va. 296, 601 S.E.2d 555 (2004). In Riner, the defendant objected to a 
- 14 - 

witness’ testimony on the grounds that it contained “double hearsay.” 268 Va. at 323, 601 

S.E.2d at 570. The specific objections dealt with the second level of hearsay, but the trial court 

decided that the first level of hearsay was admissible and did not determine whether the second 

level fell within a recognized exception to the hearsay rule. Id. at 324, 601 S.E.2d at 571. On 

appeal, the Supreme Court agreed that the testimony contained double hearsay, but held that 

appellant had waived the issue on appeal by failing to obtain a ruling from the trial court as to the 

second level of hearsay. Id. 

In the present case, appellant failed to obtain a ruling by the circuit court on his motion to 

dismiss Minor as appellee’s counsel. As such, this Court holds that the issue is waived on 

appeal. See Lenz v. Commonwealth, 261 Va. 451, 463, 544 S.E.2d 299, 306 (2001) (defendant’s 

failure to request a ruling on a pretrial motion waived the issue on appeal). 

C. Judge Alexander’s Recusal 

In both of the cases, appellant also contends that Judge Alexander abused his discretion 

by failing to recuse himself. Specifically, he argues that Judge Alexander “pre-judged” the 

validity of appellee’s motion before hearing argument on it. 

Under Canon 3(E)(1) of the Canons of Judicial Conduct, “[a] judge shall disqualify 

himself or herself in a proceeding in which the judge’s impartiality might reasonably be 

questioned, including but not limited to instances where . . . [t]he judge has a personal bias or 

prejudice concerning a party.” The Supreme Court has stated that, “in making the recusal 

decision, the judge must be guided not only by the true state of his impartiality, but also by the 

public perception of his fairness, in order that public confidence in the integrity of the judiciary 

may be maintained.” Wilson v. Commonwealth, 272 Va. 19, 28, 630 S.E.2d 326, 331 (2006) 

(internal quotation marks and citation omitted). The burden of proving a judge’s bias or 

prejudice lies with the party seeking recusal, Commonwealth v. Jackson, 267 Va. 226, 229, 590 
- 15 - 

S.E.2d 518, 519-20 (2004), and we employ an abuse of discretion standard to review recusal 

decisions, Wilson, 272 Va. at 28, 630 S.E.2d at 331. 

At the hearing on his motion to have Judge Alexander recuse himself, appellant and 

Judge Alexander disagreed regarding the facts relevant to the motion. Specifically, appellant 

argues that Judge Alexander pre-judged the validity of the Grayson Circuit Court’s transfer 

venue orders in the present cases, but Judge Alexander represented that he was talking about a 

venue transfer order from another case that is not before us on appeal. Notably, Judge Alexander 

admitted that if the facts were as appellant asserts, then he “should recuse” himself, but he 

challenged appellant’s factual assertions and concluded that he made no premature judgments 

regarding the transfer orders in these cases. 

Appellant did not include a transcript of the proceedings in which Judge Alexander made 

the allegedly prejudicial statements in the record on appeal. See Anderson v. Commonwealth, 

251 Va. 437, 439, 470 S.E.2d 862, 863 (1996) (failing to include a copy of earlier proceedings 

from another case which form the basis of argument on appeal can result in this Court not 

considering the merits of the argument). As these proceedings are “essential to our 

consideration” of appellant’s argument, id., this Court declines to consider the merits of 

appellant’s argument, Jackson, 267 Va. at 229, 590 S.E.2d at 519-20; see also Smith v. 

Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (an appellant must submit a 

record that enables this Court to determine whether the trial court committed error). 

Nevertheless, the record contains credible evidence to support Judge Alexander’s version 

of the facts. Specifically, at the time of his disputed comments, the motion to dismiss the 

transfer orders in the present cases had yet to be filed and would not be filed for another two 

months. As such, it would be unlikely that Judge Alexander would be commenting upon the 

merits of a motion that was not filed. While it may be true that the circumstances of the case in 
- 16 - 

which Judge Alexander did comment and the circumstances of the present case are similar, a 

judge’s expression of his opinion in a different case does not disqualify him from serving as a 

judge in all future cases involving similar issues. Slayton v. Commonwealth, 185 Va. 371, 376, 

38 S.E.2d 485, 488 (1946). 

D. Oral and Written Orders 

In both cases, appellant presents two assignments of error wherein he contends that the 

Bristol Circuit Court erred by ruling differently in its oral and written orders. Specifically, 

appellant argues that by issuing a written order that did not reflect the oral order, appellant was 

denied due process. 

Initially, from the bench, the trial court orally ruled that it lacked subject matter 

jurisdiction and that the Grayson Circuit Court’s venue transfer order was void. After 

adjourning, however, appellee filed a motion for the Bristol Circuit Court to reconsider whether 

it had the authority to rule that the Grayson Circuit Court’s order was void. The Bristol Circuit 

Court concluded it did not and, therefore, entered a written order stating “only” that it was 

dismissing the cases for lack of “subject matter jurisdiction.” 

As an initial matter, appellee contends that this Court should treat appellant’s argument 

on these assignments of error as waived under Rule 5A:20(e) because appellant “failed to cite 

any authority in support of his position.” Rule 5A:20(e) requires that appellant’s opening brief 

include the “principles of law, the argument, and the authorities relating to each assignment of 

error.” Appellant’s argument, however, cites not only to the Fifth and Fourteenth Amendments 

of the United States Constitution, but also to a Virginia Supreme Court case in support of his 

argument. As such, this Court will discuss the merits of appellant’s arguments. 

Appellant argues that he “had no notice of the [Bristol Circuit Court’s] intention to 

change its decision on this issue and no opportunity to be heard in challenge of that intention 
- 17 - 

prior to the final order.” Notably, however, appellee’s motion for the Bristol Circuit Court to 

reconsider its ruling raised no argument that was not previously presented at the hearing. As 

such, appellant had the opportunity to be heard on those issues at the hearing. Furthermore, 

despite appellant’s assertion to the contrary, appellee’s motion for the Bristol Circuit Court to 

reconsider its ruling was served on appellant. Thus, he not only knew that the issue was before 

the Bristol Circuit Court, but he also had the opportunity to file a brief in opposition, which he 

failed to do. See Cloutier v. Queen, 35 Va. App. 413, 422, 545 S.E.2d 574, 578-79 (2001) 

(holding that a mother was not “denied due process when the trial court reconsidered its original 

ruling without giving her an opportunity to respond to father’s motion to reconsider”); Forrest v. 

Forrest, 3 Va. App. 236, 242, 349 S.E.2d 157, 161 (1986) (holding that “the trial court did not 

deprive the husband of his constitutional right of due process when it denied, without a hearing, 

his . . . motion to reconsider). 

Therefore, this Court holds that the Bristol Circuit Court did not err by issuing a written 

order that was different than its oral order. Indeed, any order by the Bristol Circuit Court, 

beyond simply declaring a lack of authority to exercise subject matter jurisdiction, would have 

been a “nullity.” Virginian Pilot Media Cos., LLC v. Dow Jones & Co., 280 Va. 464, 467-68, 

698 S.E.2d 900, 901-02 (2010). 

E. Appeal Bond 

In both cases, appellant argues that the Bristol Circuit Court erred in failing to deal with 

the appeal bond. Additionally, in a cross-assignment of error, appellee argues that the Bristol 

Circuit Court erred by failing “to enforce the appeal bond, because this Court’s denial of 

[appellee’s] mootness motion[, in the 2011 appeals to this Court,] is the law of the case on 

payment of the arrearage.” 
- 18 - 

“The [law of the case] doctrine, briefly stated, is this: Where there have been two appeals 

in the same case, between the same parties, and the facts are the same, nothing decided on the 

first appeal can be re-examined on a second appeal.” Rowe v. Rowe, 33 Va. App. 250, 262, 532 

S.E.2d 908, 914 (2000). Indeed, “[t]o allow a trial judge to disregard the holding of a previous 

panel would be an inefficient administration of justice, increasing the ‘labor of appellate courts 

and the costs to litigation.’” Id. (quoting Steinman v. Clinchfield Coal Corp., 121 Va. 611, 621, 

93 S.E. 684, 687 (1917)). 

The “‘mandate rule is merely a specific application of the law of the case doctrine.’” 

West v. West, 59 Va. App. 225, 230-31, 717 S.E.2d 831, 833 (2011) (quoting Powell v. 

Commonwealth, 267 Va. 107, 128, 590 S.E.2d 537, 550 (2004)). Specifically, “‘it compels 

compliance on remand with the dictates of a superior court and forecloses relitigation of issues 

expressly or impliedly decided by the appellate court.’” Id. 

The appeal bond at issue before this Court in the present cases was set by the Grayson 

Circuit Court before the 2011 appeals of these same cases. This bond was set, pending appeal to 

this Court, to cover the arrears that the Grayson Circuit Court initially determined appellant 

owed appellee in the contempt case. In the 2011 appeals, after finding appellant’s arguments to 

be largely meritless, this Court remanded the case to the Grayson Circuit Court for further 

proceedings that would include disbursement of the appeal bond. After determining that the 

arrears had been paid in the 2011 payment, however, the Grayson Circuit Court transferred the 

case to the Bristol Circuit Court before following all of this Court’s instructions on remand. 

As we did not instruct the Bristol Circuit Court on remand to address the remaining 

issues from the 2011 appeals, it did not err by declining to do so.7

 7

 Indeed, the Grayson Circuit Court is still required to follow our instructions given on 

remand in the 2011 appeals. See Barrett, 2011 Va. App. LEXIS 245, at *22; Barrett, 2011 Va. 
- 19 - 

F. Dismissal of Contempt Case 

In case No. 1614-14-3, appellant contends that the Bristol Circuit Court erred by 

“dismissing the contempt matter.” Specifically, he argues that the hearing on appellee’s motion 

to dismiss was solely about the support case and, therefore, his right to due process was violated 

because he was not “provided notice and an opportunity to be heard in the [contempt] matter” 

before it was dismissed. 

This argument is based on a false factual predicate. At the outset of the hearing on 

July 11, 2014, in which appellant had a full opportunity to argue the subject matter jurisdiction 

issue before the Bristol Circuit Court, the judge stated, “the cases that we are talking about today 

. . . are CJ13000420-00[, which is the support case,] and CJ13000421-00[, which is the contempt 

matter].” Accordingly, because both cases were being considered when the parties presented 

their arguments regarding subject matter jurisdiction and the argument was identical for both 

cases, appellant’s assertions that he did not have an “opportunity to be heard in the [contempt] 

matter” are without merit. 

G. Dismissal Without Prejudice 

In both cases, appellee presents a cross-assignment of error contending that the Bristol 

Circuit Court should have entered its dismissal order “without prejudice.” Appellee asks that 

this Court remand the matter with instructions to enter such an order. 

“[T]he effect of the words ‘without prejudice’ and ‘with prejudice’ in a judgment with 

respect to its operation as res judicata,” is that “as a general proposition a judgment of dismissal 

which expressly provides that it is ‘with prejudice’ operates as res judicata and is conclusive of 

the rights of the parties as if the suit had been prosecuted to a final disposition adverse to the 

 

App. LEXIS 246, at *42. After following these instructions, the Grayson Circuit Court should 

disburse the appeal bond in accordance with the rights of the parties. 
- 20 - 

plaintiff.” Virginia Concrete Co. v. Board of Supervisors of Fairfax Cnty., 197 Va. 821, 825, 91 

S.E.2d 415, 418 (1956) (citing 149 A.L.R. at 553, 625). 

In Surry Lumber Co. v. Wellons, 129 Va. 536, 106 S.E. 382 (1921), the Supreme Court 

noted that the legal effect of a trial court’s dismissal of a case using general terms, without 

specifying whether the dismissal was with or without prejudice, was no different than had the 

order specifically said without prejudice. 129 Va. at 541, 106 S.E. at 384. Consequently, this 

Court will not remand the cases for entry of an order that specifically states, “without prejudice.” 

H. Dismissal Without Transfer 

In both cases, appellant presents an alternative argument that even if the Bristol Circuit 

Court’s decision was correct, the court erred by dismissing the case without “declaring the 

[Grayson Circuit Court] transfers void and returning the case back to Grayson County for 

adjudication.” In the present case, however, the Bristol Circuit Court only had jurisdiction to 

determine whether it had jurisdiction. Williams, 61 Va. App. at 176, 734 S.E.2d at 189. 

Therefore, any order transferring the case back to the Grayson Circuit Court would have been 

void. Ferry Co., 196 Va. at 432, 83 S.E.2d at 784. As such, the Bristol Circuit Court did not err 

by dismissing the cases without transferring them back to the Grayson Circuit Court. 

I. Attorneys’ Fees 

Lastly, appellee asks this Court to impose attorneys’ fees against appellant for these 

appeals. Specifically, appellee argues that appellant has pursued “meritless motions” and his 

conduct has unnecessarily added to the “complexity, expense, and delay” of the case. The key to 

determining a “proper award of [attorney’s] fees is reasonableness under all the circumstances.” 

Joynes v. Payne, 36 Va. App. 401, 429, 551 S.E.2d 10, 29 (2001). After considering the 

circumstances of this case, this Court denies appellee’s request for attorneys’ fees. 
- 21 - 

III. CONCLUSION 

Accordingly, this Court affirms the rulings of the Bristol Circuit Court in each case. 

Affirmed.