COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Retired Judge Olitsky∗

Argued at Richmond, Virginia 

CHRISTOPHER L. WHITAKER 

 OPINION BY 

v. Record No. 0640-99-2 JUDGE JAMES W. BENTON, JR. 

 JULY 11, 2000 

ROBIN L. DAY AND 

 EMILIE MILLS AND KRISTEN MILLS, 

 INFANTS, BY THEIR GUARDIAN AD LITEM

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Buford M. Parsons, Judge 

 John H. Goots (Chalkley & Witmeyer, L.L.P., 

on brief), for appellant. 

 No brief or argument for appellee Robin L. 

Day. 

 Jennifer C. Hollar, Guardian ad litem

(Berkeley & Hollar, on brief), for appellees 

Emilie Mills and Kristen Mills, infants. 

 ∗

 Retired Judge Norman Olitsky took part in the 

consideration of this case by designation pursuant to Code 

§ 17.1-400, recodifying Code § 17-116.01. 

 This proceeding began in the juvenile and domestic relations 

district court with a petition against Christopher L. Whitaker to 

establish paternity and child support, filed on behalf of infants, 

Emilie and Kristen Mills, by their guardian ad litem. Following 

an appeal to the circuit court, the trial judge overruled 

Whitaker's plea of res judicata, ordered blood testing to 

determine paternity, and remanded the proceeding to the juvenile 
court. Whitaker appeals from that order and contends the trial 

judge erred in ruling that the petition was not barred by res

judicata. Because the trial court's interlocutory order neither 

adjudicates the principles of the cause nor involves an order 

granting, dissolving or denying an injunction, we dismiss the 

appeal. 

I. 

 The guardian ad litem filed this action on behalf of the two 

infant children in 1997 in the juvenile court and served as 

respondents the children's mother, Robin Day, and Whitaker, who is 

alleged to be their father. Although the petition was styled In 

re: Emilea Mills and Kristin Mills, the juvenile court docketed 

the matter as Robin Lynn Day v. Christopher Whitaker, In re: 

Emilea Mills and Kristen Elizabeth Mills. Day appeared in court 

but filed no pleadings and apparently has had no attorney of 

record throughout these proceedings. Whitaker was represented by 

an attorney. The children were represented by their guardian ad 

litem, an attorney. 

 Whitaker sought to have the petition dismissed, alleging that 

the proceeding was barred by res judicata. The juvenile court 

judge denied the motion to dismiss and ordered blood tests as 

requested by the petition. On appeal to the circuit court, this 

matter was styled Day v. Whitaker, In re: Emilea S. Mills and 

Kristin E. Mills. After receiving memoranda and hearing arguments 

of counsel, the trial judge denied Whitaker's plea of res judicata

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and motion to dismiss.1 The trial judge entered an order, which 

provides in pertinent part as follows: 

 This day appeared Robin L. Day in person, 

the defendant, Christopher L. Whitaker in 

person and by his attorney, . . . and the 

children, Emilie S. Mills and Kristin E. 

Mills by their guardian ad litem, . . . ; 

this being a petition to establish paternity 

 1

 Whitaker's motion to dismiss relied upon documents showing 

that on March 28, 1994, the Division of Child Support 

Enforcement filed in the juvenile court a petition for support 

on behalf of Day against Christopher Mills and Whitaker. The 

Division, filing on behalf of Day, was represented by counsel. 

The juvenile court appointed a guardian ad litem to represent 

Emilie and Kristen Mills. Christopher Mills was also 

represented by counsel. At the request of the Division, the 

juvenile court dismissed the suit by order, stating that Mills 

acknowledged his paternity of the children. 

On April 18, 1994, Day filed in the juvenile court a 

petition for support against Whitaker, a petition to establish 

paternity against Whitaker, and a petition to determine custody 

against Whitaker and Mills. Mills, who was named as the "legal 

father," filed a petition to determine visitation. The children 

were not named as parties in these petitions, and the file does 

not reflect that they were represented by a guardian ad litem. 

On June 22, 1994, the juvenile court judge entered an order 

dismissing the petition for support and the petition to 

determine paternity against Whitaker, stating in the order that 

Mills' "paternity acknowledgement under oath shall have the same 

legal effect as a judgment." Day filed an appeal of this order; 

however, she did not appear in the circuit court. An order was 

entered in the circuit court dismissing the appeal. 

On April 18, 1995, Susan Lewis, the maternal grandmother of 

the children, filed in juvenile court a petition for custody of 

the children. Although Mills was listed as the father, the 

judge, nevertheless appointed a guardian ad litem to represent 

Whitaker, apparently because Whitaker's address was unknown. 

Day, who was incarcerated, was also represented by a guardian ad

litem. Whitaker's guardian ad litem filed an answer on his 

behalf pleading that because the circuit court had already 

determined that Mills was the father of the children, res

judicata should apply. Finding that Mills was the children's 

father by giving res judicata effect to the prior order, the 

judge dismissed Whitaker from the proceedings. Two years later, 

this current proceeding commenced. 

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and an appeal of the order ordering the 

blood test. 

 And the Court having considered the 

argument of counsel for [Whitaker], that the 

ordering of a blood test is barred by the 

plea of res judicata, and the Court having 

considered the motion, denies the motion to 

which action the defendant Christopher 

Whitaker, objects. 

 Accordingly the aforesaid blood test is 

ORDERED and this matter is remanded to the 

Henrico Juvenile and Domestic Relations 

District Court. 

 Whitaker appeals from this order and contends the trial 

judge erred in ruling that the petition to establish paternity 

and support was not barred by res judicata. 

II. 

 Pertinent to the jurisdiction of this Court, we have ruled 

as follows: 

 This Court has appellate jurisdiction 

over final decrees of a circuit court in 

domestic relations matters arising under 

Titles 16.1 or 20, and any interlocutory 

decree or order involving the granting, 

dissolving, or denying of an injunction or 

"adjudicating the principles of a cause." 

Code § 17.1-405(3)(f) and (4), recodifying 

Code § 17-116.05(3)(f) and (4). A final 

decree is one "which disposes of the whole 

subject, gives all the relief that is 

contemplated, and leaves nothing to be done 

by the court." Erikson v. Erikson, 19 Va. 

App. 389, 390, 451 S.E.2d 711, 712 (1994) 

(internal quotation marks and citations 

omitted). 

Wells v. Wells, 29 Va. App. 82, 85-86, 509 S.E.2d 549, 551 

(1999). 

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 The petition that commenced this proceeding seeks an order 

requiring genetic or appropriate blood tests, a ruling 

adjudicating paternity, and an award of support for the 

children. Based upon the written memoranda and arguments of 

counsel, the trial judge determined only that the plea of res

judicata did not bar this proceeding and that testing should 

proceed. The trial judge did not adjudicate paternity or award 

support. 

 A ruling denying a motion to dismiss, which alleges that 

the action is barred by principles of res judicata, is 

interlocutory and, therefore, is not ripe for appeal. See

Country Club of Johnston County, Inc. v. United States Fidelity 

and Guaranty Co., 519 S.E.2d 540, 546 (N.C. Ct. App. 1999) 

(holding that "denial of a motion for summary judgment based 

upon the defense of res judicata may involve a substantial right 

so as to permit immediate appeal only 'where a possibility of 

inconsistent verdicts exists if the case proceeds to trial'"); 

State ex rel. Thomas v. Mixon, 674 So.2d 611, 612 (Ala. Civ. 

App. 1995) (reversing for lack of jurisdiction a trial judge's 

granting of a motion to dismiss on res judicata grounds because 

"Mixon improperly appealed from [a juvenile court's] 

interlocutory order"); Smith v. Union Bank & Trust Co., 653 

So.2d 933, 934 (Ala. 1995) (permitting an appeal although 

recognizing that it arises "from [an] interlocutory order 

denying a dismissal" on res judicata grounds); See also E.E.O.C. 

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v. Federal Reserve Bank of Richmond, 698 F.2d 633, 674 (4th Cir. 

1983) (noting that, under federal statutes, when a trial judge 

enters an order denying a motion to dismiss the action, which 

alleges a bar of res judicata, an interlocutory appeal may 

proceed upon an appropriate certification). When the trial 

judge refused to dismiss this case and remanded the matter to 

the juvenile court, the trial judge "did not resolve any factual 

or legal issues concerning the merits of the [case]." Canova 

Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va. App. 595, 600, 

471 S.E.2d 827, 830 (1996). The order merely denied Whitaker's 

motion to dismiss and remanded the matter to the juvenile court 

for further action. This order is, therefore, not a final 

decree "'which disposes of the whole subject, gives all the 

relief that is contemplated, and leaves nothing to be done by 

the court.'" Wells, 29 Va. App. at 85-86, 509 S.E.2d at 551 

(citation omitted). 

 Furthermore, the order did not adjudicate "the principles 

of a cause." Code § 17.1-405(4), recodifying Code 

§ 17-116.05(4). An interlocutory decree adjudicates the 

principles of a cause when "'the rules or methods by which the 

rights of the parties are to be finally worked out have been so 

far determined that it is only necessary to apply those rules or 

methods to the facts of the case in order to ascertain the 

relative rights of the parties, with regard to the subject 

matter of the suit.'" Pinkard v. Pinkard, 12 Va. App. 848, 851, 

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407 S.E.2d 339, 341 (1991) (citation omitted). The trial 

judge's order merely held that the petitioners could proceed 

with their action and remanded the case to the juvenile court 

for those further proceedings. "The mere possibility that [the 

remand order] . . . may affect the final decision in the trial 

does not necessitate an immediate appeal." Pinkard, 12 Va. App. 

at 853, 407 S.E.2d at 342. The order did not adjudicate the 

principles of the cause or decide an issue which would of 

necessity affect the final decision in the case. See Polumbo v. 

Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229 (1991); 

Weizenbaum v. Weizenbaum, 12 Va. App. 899, 902-03, 407 S.E.2d 

37, 341 (1991). 

 For these reasons, we hold that the trial judge's order 

denying Whitaker's motion to dismiss, which alleges that the 

action is barred by res judicata, is a non-appealable, 

interlocutory order. Accordingly, we dismiss the appeal. 

 Dismissed. 

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