COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
STEVEN R. LUCAS
MEMORANDUM OPINION * BY
v. Record No. 1744-00-3 JUDGE ROBERT P. FRANK
JULY 24, 2001
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. TERESA BECKS
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Sherwin John Jacobs for appellant.
Steven P. Roadcap, Special Counsel (Alice G.
Burlinson, Office of the Special Counsel;
Mark L. Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General;
Robert B. Cousins, Senior Assistant Attorney
General; Craig M. Burshem, Regional Special
Counsel, on brief), for appellee.
Steven R. Lucas (appellant) appeals the trial court's
dismissal of his petition to reduce child support. On appeal, he
contends the trial court erred in: 1) failing to consider the
lack of adequate notice and service upon him for the June 29, 1993
and July 6, 1993 blood tests and the September 13, 1993 show cause
hearing, 2) finding the evidence was sufficient at the September
13, 1993 show cause hearing to establish paternity, 3) failing to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
permit him to avail himself of an independent action to set aside
the September 13, 1993 order and finding no extrinsic fraud by
Teresa Becks, 4) failing to find that the current body of
jurisprudence with respect to the determination of paternity
requires revision because error or mistake can create a fiction
that deprives an individual of his liberty and property, and 5)
failing to find that the paternity test establishing he is not the
father of the child was a material change in circumstance that
warrants a termination of child support. Finding no error, we
affirm the trial court's dismissal of the petition to reduce child
support.
I. BACKGROUND
Teresa Becks (mother) gave birth to Brian Lee Becks on
April 25, 1992. In late 1992, the Division of Child Support
Enforcement (Division) received an application from mother for
child support services. Mother indicated on the Division's
application that she thought a man named Jackson was the father
of her child. The Division filed a paternity petition against
Jackson. As a result of testing, Jackson was excluded as the
father. The Division's petition was dismissed. Mother then
named appellant as the putative father of her child, testifying
she had engaged in sexual relations with him during the time of
conception.
In January 1993, the Division filed a new paternity
petition in the Rockingham County Juvenile and Domestic
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Relations District Court (JDR court) against appellant. On
March 23, 1993, appellant, an inmate, was personally served with
the petition at Powhatan Correctional Facility. Because
appellant was incarcerated, the JDR court appointed attorney
John Q. Adams to represent him. After corresponding with
appellant, Adams filed an answer on April 30, 1993, denying
paternity and requesting genetic testing.
On June 21, 1993, appellant was released from
incarceration. On the same day, the JDR court heard the
paternity matter, at which time, mother, a Division
representative, and Adams, as appellant's counsel, appeared.
Upon Adams' request, the JDR court ordered the parties and the
child to submit to genetic tests and scheduled blood to be taken
on June 29, 1993 at 10:00 a.m. The case was continued until
September 13, 1993 at 10:00 a.m. for the paternity hearing.
Adams wrote to appellant at Route 2, Box 129, Elkton,
Virginia 22827 1 regarding the scheduling of the paternity test.
Adams notified appellant of the time and place of the test, but
appellant never responded. Adams also notified appellant of the
September 13, 1993 hearing date and requested appellant contact
him immediately. Appellant failed to appear on June 29, 1993 to
have his blood drawn.
1
Appellant claimed his correct address is Route 2, Box
129-B, Elkton, Virginia.
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At a hearing before the trial court in 1998, Adams
testified he sent a copy of the JDR court's order that was
entered on June 21, 1993 to appellant. Adams further testified,
"I tried and tried to reach him and he just ignored me." Other
than the initial letter from appellant requesting a blood test,
appellant never communicated with his attorney until sometime in
1998.
Because appellant failed to appear to have his blood drawn
on June 29, 1993, the Division rescheduled the draw for July 6,
1993. The Division mailed a notice of rescheduling to Route 2,
Box 129, Elkton, Virginia, a home address verified by the post
office, advising appellant of the rescheduled blood draw. Adams
also sent a letter informing appellant of the rescheduled date.
Appellant again failed to appear for testing. As a result, the
Division filed a motion to show cause, which was served on
appellant by posting at Route 2, Box 129, Elkton, Virginia. The
motion alleged that appellant failed to submit to the
court-ordered blood test. The motion to show cause was docketed
for hearing on September 13, 1993, the same date as the
paternity hearing.
On September 13, 1993, the Division's representative,
mother, and appellant's attorney appeared before the JDR court.
Once again, appellant did not appear.
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The JDR court proceeded to hear evidence and entered an
order finding appellant to be the father of the child. The JDR
court also dismissed the Division's show cause petition.
On September 23, 1993, appellant wrote to the Division
identifying his address as Route 2, Box 129-B. He denied
paternity and indicated difficulty with transportation.
Appellant indicated he still wanted to take the blood test. He
asked if he could take the test in Harrisonburg.
The Division replied that the JDR court had adjudicated
paternity and requested that appellant complete a financial
statement for establishment of a support order. On October 13,
1993, the Division entered an administrative support order
obligating appellant to pay child support in the amount of $65
per month. Neither the paternity order nor the administrative
support order was appealed.
In mid 1997, the Division initiated a show cause proceeding
against appellant for his failure to pay support in compliance
with the terms of the October 13, 1993 administrative support
order. On July 28, 1997, the JDR court held appellant in civil
contempt and sentenced him to jail. Appellant then wrote to the
JDR court judge on August 6, 1997 and August 11, 1997, denying
his paternity of the child and requesting a genetic test. On
August 13, 1997, the JDR court responded to appellant's letter.
The court advised him that he had twice failed to appear to have
his blood drawn, an order was entered on September 13, 1993 that
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adjudicated him the child's father, and the order was a final
order not subject to change.
In early 1998, appellant retained new counsel and filed a
petition in the JDR court seeking again to adjudicate paternity
of the child. Because the child's name was misspelled, the JDR
court established a new court file. Without notice to the
Division, and without the Division's involvement, the JDR court
entered an order requiring mother, appellant and the child to
submit to genetic testing. The test results excluded appellant
as the child's biological father. Upon receipt of the paternity
test results, the JDR court became aware of the misspelled name
and the prior paternity proceeding. The JDR court entered an
order on June 8, 1998, dismissing appellant's paternity
petition, finding the court had "no jurisdiction over parentage"
because it was previously adjudicated. From this order,
appellant appealed to the Rockingham County Circuit Court.
The circuit court, after two ore tenus hearings, dismissed
the paternity petition, holding that a collateral attack was not
appropriate to challenge the sufficiency of the evidence. The
trial court opined that appellant was free to pursue a challenge
to the original order on the basis of fraud under Code
§ 8.01-428. Appellant did not appeal the circuit court's
decision.
Appellant then filed an action in the circuit court to "set
aside a final order," alleging the September 13, 1993 JDR
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court's paternity order was obtained by fraudulent
representations by mother. Appellant also filed a motion in the
JDR court on May 24, 1999, which sought to modify his obligation
to pay child support on the basis that a change in circumstances
occurred as a result of the blood test that excluded appellant
as the child's father. The JDR court denied appellant's motion
to modify on October 25, 1999, and appellant appealed that order
to the circuit court.
The independent action and the motion to modify were
consolidated for hearing in the circuit court. The parties also
agreed the evidence was the same in the case at bar as in the
previous juvenile court petitions. Therefore, there was an
agreement that the transcripts from the 1998 paternity action
also would be included as evidence in this case.
The circuit court denied the petition to set aside the
paternity judgment and the motion to modify. In its opinion and
order, the circuit court found that mother "either knowingly or
unknowingly perpetrated a fraud upon the lower court in
providing testimony as to the identity of the father of her
child." The court further characterized the fraud as
"intrinsic." However, the circuit court found that appellant
did not have "clean hands," stating:
In the case at hand, it cannot be said
that the defendant, Lucas, has entered this
suit with clean hands. In fact, the fault
for the decision in the lower court lies
with Lucas. Twice, he was scheduled for DNA
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testing, and twice he failed to show up. He
was issued a show cause for this failure to
show up, and he failed to attend court for
the show cause and the hearing to determine
paternity. Had Lucas fulfilled his
obligation and shown up for any one of these
three required appointments, he would not be
in the predicament he is in now. It was
only after he was imprisoned for failure to
pay his child support obligation that he
finally took action. His attorney was
present at the paternity hearing and it was
at this stage that [mother's] perjury should
have been exposed. Furthermore, following
the determination of paternity by the J & DR
Court, Lucas had an opportunity to appeal
the case. He failed to do so, and the
decision became final. It is because of
Lucas' inaction and negligence that the case
is now at this stage. Based on this, he
cannot now collaterally attack the decision
of the lower court.
The circuit court also found that appellant had not shown
any change in monetary circumstances, thereby dismissing the
motion to amend. The court ruled that the blood test excluding
appellant as the father was not a change of circumstances.
II. ANALYSIS
Initially, appellant contends he was not given adequate
notice of the June 29, 1993 and July 6, 1993 blood draws and the
September 13, 1993 show cause hearing. Appellant argues that
the Division mailed notices of the blood draws to Route 2, Box
129, Elkton, Virginia, not his correct address, Route 2, Box
129-B, Elkton, Virginia and that the show cause notice was
posted at the Box 129 address, rather than Box 129-B.
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Assuming, without deciding all the notices went to the
wrong address, such error is of no moment. Appellant was
personally served with the original paternity petition while he
was incarcerated. Appellant's court-appointed counsel filed an
answer on his behalf. Through counsel, appellant requested a
blood test. "'Any action on the part of defendant, except to
object to the jurisdiction, which recognizes the case as in
court, will amount to a general appearance.'" Maryland Casualty
Co. v. The Clintwood Bank, Inc., 155 Va. 181, 186, 154 S.E. 492,
494 (1930) (citation omitted). Thus, appellant entered a
general appearance in the paternity proceeding.
Once a party has made a general appearance through counsel,
service on counsel is service on the party. Code § 8.01-314.
Further, appellant was charged with knowledge of the
hearing dates. See Hunter v. Commonwealth, 15 Va. App. 717,
722, 427 S.E.2d 197, 201 (1993) ("The attorney-client
relationship presumes that attorney and client, as servant and
master, will communicate about all important stages of the
client's upcoming trial. Notice to [the defendant's] attorney
of record of the trial date is evidence that the notice was
given to [the defendant]."). See Lockard v. Whitenack, 151 Va.
143, 153, 144 S.E. 606, 609 (1928) ("'If an attorney is
authorized to appear, the jurisdiction over the defendant is
perfect [sic], and the subsequent action of the attorney, not
induced by fraud of the adverse party, is binding on the client
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at law and on equity.'" (citation omitted)), overruled in part,
Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245 (1956).
Appellant alleges no such fraud.
The trial court could have reasonably inferred that
appellant, in fact, knew of the blood testing dates and location
by his letter of September 23, 1993. Appellant referenced the
blood test, indicating he had no funds nor transportation to get
to the location. He even indicated he would prefer the test to
be taken in Harrisonburg. Again, the fact finder could conclude
that appellant knew of the details of the earlier scheduled
testing.
Therefore, the record belies appellant's claim of lack of
notice. He was served personally with the paternity petition,
and his attorney made a general appearance and appeared at each
stage of the proceeding. Appellant's failure to communicate and
cooperate with counsel caused his predicament, not lack of
notice. We conclude that appellant had proper notice.
Appellant next contends the JDR court failed to follow the
procedures set forth in Code § 20-61.3. Specifically, appellant
contends that because he was not served personally with the show
cause summons, the court could not enter a "default judgment"
against him. Further, he argues that Code § 20-61.3 was
violated because he was not served with a copy of the paternity
order.
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Appellant cannot complain of the type of service of the
show cause summons because the show cause was dismissed on
September 13, 1993 at the paternity hearing. Further, counsel
had notice of the show cause hearing.
It is important to note that the September 13, 1993
adjudication of paternity was not a default judgment. When one
appears generally, files a pleading, and is represented by
counsel at all stages of the proceedings, that party is not in
default. See Rules 2:7, 3:17 and 7B:9. Appellant's absence and
his failure to communicate with counsel were of his own
choosing.
Code § 20-61.3 envisions a "default" situation when the
putative father is served personally but does not participate in
the proceedings, either personally or by counsel. The statute
states that in the absence of a putative father who has been
served personally, "[T]he court shall proceed in hearing the
evidence in the case . . . as if the putative father were
present." Code § 20-61.3. Code § 20-61.3 concludes by
requiring a copy of the order to be served upon the father. Id.
Because appellant was present through counsel, the service
requirement was satisfied. See Code § 8.01-314.
Appellant next challenges the sufficiency of the evidence
in the original paternity hearing of September 13, 1993.
Appellant contends the evidence did not rise to a "clear and
convincing" level of proof. First, it should be noted appellant
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did not appeal the September 13, 1993 paternity determination.
He now attempts to collaterally attack that judgment, which
became a final order twenty-one days after the date of entry, on
sufficiency grounds. See Rule 1:1.
Appellant's contention fails for a number of reasons.
First, it is well settled that one cannot collaterally attack a
prior judgment on sufficiency grounds. See Morse v.
Commonwealth, 6 Va. App. 466, 369 S.E.2d 863 (1988). In Morse,
Morse contended the trial court erroneously relied on a prior
conviction for driving with a suspended license when it declared
him an habitual offender, arguing that the evidence was not
sufficient to convict him of driving with a suspended license.
We held, "[w]e find no sound reason for allowing the defendant
to challenge the sufficiency of the evidence to support his
underlying conviction. If such a practice were authorized, the
adjudication hearing would inevitably become a forum for
relitigating each of the three prior final judgments." Id. at
469, 369 S.E.2d at 865.
We now address appellant's independent suit under Code
§ 8.01-428 to set aside the 1993 paternity order on the basis of
alleged fraud. In Jennings v. Jennings, 26 Va. App. 530, 495
S.E.2d 544 (1998), we held:
A court may "entertain at any time an
independent action . . . to set aside a
judgment or decree for fraud upon the
court." Code § 8.01-428(D). Because
"judicial proceedings must have a certainty
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of result, and a high degree of finality
must attach to judgments," we construe the
language contained in Code § 8.01-428(D)
narrowly. Byrum v. Lowe & Gordon, Ltd., 225
Va. 362, 365, 302 S.E.2d 46, 48 (1983)
(citation omitted).
Id.
In Charles v. Precision Tune, Inc., 243 Va. 313, 414 S.E.2d
831 (1992), the Supreme Court of Virginia listed the elements of
the independent action:
"(1) a judgment which ought not, in equity
and good conscience, to be enforced; (2) a
good defense to the alleged cause of action
on which the judgment is founded; (3) fraud,
accident, or mistake which prevented the
defendant in the judgment from obtaining the
benefit of his defense; (4) the absence of
fault or negligence on the part of the
defendant; and (5) the absence of any
adequate remedy at law."
Id. at 317-18, 414 S.E.2d at 833 (citation omitted).
At issue in this case is whether appellant produced
sufficient evidence to satisfy the fourth element, absence of
fault or negligence on his part. We reject appellant's argument
that he was free from fault or negligence. The trial court
found, "[i]t is because of Lucas' inaction and negligence that
the case is now at this stage." The trial court factually found
that appellant was personally served with the original paternity
petition, he appeared generally by counsel, he failed to
communicate with counsel, he failed to appear at two scheduled
blood draws, and he failed to appear in court. Clearly,
appellant was the author of his own predicament. Had appellant
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appeared for the testing, he would have been excluded as the
father and no finding of paternity would have been made.
Thus, the evidence overwhelmingly indicates appellant was not
free of fault. 2
Appellant next contends this Court must change the current
body of jurisprudence to allow a father to re-open a
determination of paternity in the event of error or mistake. In
essence, appellant asks that we ignore the doctrine of
collateral estoppel as enunciated in Slagle v. Slagle, 11 Va.
App. 341, 398 S.E.2d 346 (1990). We decline that invitation and
do not deem it necessary to defend the doctrine in this opinion.
Collateral estoppel is a "'fundamental precept of common-law
adjudication.'" Slagle, 11 Va. App. at 344, 398 S.E.2d at 348
(quoting Montana v. United States, 440 U.S. 147 (1979)).
However, as discussed above, one who is free from neglect
and fault can seek relief under Code § 8.01-428(D) if fraud can
be shown to have been perpetrated on the court. See id. at 348,
398 S.E.2d at 350. "Principles of collateral estoppel may not be
invoked to sustain fraud." Id. (citation omitted).
Finally, appellant contends the paternity test finding that
he is not the father is a material change in circumstance that
2
Because we find the evidence supports the trial court's
finding of appellant's fault and negligence, we do not address
the other elements of this action under Code § 8.01-428(D). For
the same reason, we do not address the trial court's finding
that the evidence only showed "intrinsic fraud."
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warrants a termination of child support. Specifically,
appellant maintains the trial court erred in ruling that only
monetary changes are relevant to a change in circumstance. In a
spousal support context, we have held that "other than death or
remarriage, the 'circumstances' which make 'proper' an increase,
reduction or cessation of spousal support under Code § 20-109
are financial and economic ones." Hollowell v. Hollowell, 6 Va.
App. 417, 419, 369 S.E.2d 451, 452-43 (1988). We see no reason
to arrive at a different result for child support. We hold that
a "change in circumstances" must bear on the financial needs of
the child and the ability of the parent to pay. 3
For these reasons, we affirm the trial court's dismissal of
father's petition to reduce child support.
Affirmed.
3
Effective July 1, 2001, Code § 20-49.10 affords relief
from a child support or paternity determination order where a
subsequent, scientifically reliable, genetic test excludes the
individual as the father.
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