FAILURE TO PROTECT RECORD SINKS RES JUDICATA PLEA

The Court of Appeals of Virginia has affirmed a trial court’s rejection of a res judicata plea due in part to the appellant’s failure to present a full record to the appellate court.  The case is Altice v. DSS.

When the Roanoke County Department of Social Services suspected Altice of sexually abusing his infant child, it sought a child protective order in JDR Court.  The petition was supported by an affidavit.  The JDR judge granted a preliminary protective order after an ex parte hearing, but when the matter came to be heard at a full evidentiary hearing a week later, the court dismissed the petition.

A week later, DSS was back, filing another petition, this time supported by live testimony of a doctor to testify about the condition of the infant.  The court again granted preliminary relief, and set the matter for an evidentiary hearing the same week.  At that hearing, Altice argued that the petition was barred by res judicata, based on the dismissal of the previous petition on the same grounds.

The JDR court denied the plea and entered a protective order, which was to remain in effect until 2016.  Altice appealed to the Circuit Court, which held an evidentiary hearing at which three witnesses testified about the child’s condition.  That court again denied the res judicata plea, and decreed that Altice could have supervised visitation with the child for a period of five years.

On appeal to the Court of Appeals, Altice raised the res judicata defense yet again.  The appellate court, noting the burden on one raising the defense to prove the facts of the former adjudication, held that Altice had not provided a sufficient record on appeal to establish his claim.   It accordingly held that he could not prove that the issue litigated in the second proceeding was the same as that litigated in the first, and affirmed the relief ordered by the Circuit Court.

As in many cases, the venom in this case is in the footnotes.   Specifially, as the court noted in footnote 1 on page 2 of the opinion, Altice had not included the original affidavit, upon which the first petition was based, in the record of proceedings in either the Circuit Court or the Court of Appeals.  It found that it was therefore not possible to determine whether the grounds for the second petition were the same as in the first.