COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
PATRICK N. CLINE
MEMORANDUM OPINION *
v. Record No. 0359-98-3 PER CURIAM
SEPTEMBER 22, 1998
DONNA K. CLINE
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
(Walter F. Green, IV; Green and O'Donnell, on
brief), for appellant.
(C. Lynn Lawson; Franklin, Denney, Ward &
Lawson, on brief), for appellee.
Patrick N. Cline (father) appeals the decision of the
circuit court denying his request for genetic testing to disprove
his paternity of a child born to his former wife, Donna K. Cline
(mother), during their marriage. Father contends that the trial
court erred in finding that he was barred from relitigating the
issue of paternity. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
In 1991, father filed a bill of complaint seeking a divorce
from mother. In his bill, father acknowledged that one child was
born of the marriage. In its final decree of divorce entered in
1991, the trial court found that there was one child born of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parties' marriage. In 1994, father sought custody of the child,
but subsequently sought genetic testing to confirm he was the
child's father. 1
Father relies upon Commonwealth ex rel. Comptroller o/b/o
Overby v. Flaneary, 22 Va. App. 293, 469 S.E.2d 79 (1996), and
Dunbar v. Hogan, 16 Va. App. 653, 432 S.E.2d 16 (1993), for the
proposition that a voluntary acknowledgement of paternity does
not preclude litigation on the issue of paternity. His reliance
upon those cases is misplaced. In those cases, unlike the case
at bar, there was no previous litigation resulting in judgment.
In Dunbar, the putative father signed a "Declaration of
Paternity" before learning through a paternity test that he was
not the genetic father. No previously-entered court order or
judgment ever found Dunbar to be the father. We held that, in
the absence of any previous judicial determination of paternity,
the provision of Code § 20-49.2 that an acknowledgement of
paternity "shall have the same legal effect as a judgment entered
pursuant to Code § 20-49.8" did not preclude Dunbar from having
the opportunity to litigate the issue of his paternity.
Similarly, in Flaneary, in the absence of any previous
litigation, another man's acknowledgment of paternity did not
1
While the parties stipulated to the record in the divorce
case, the record of that case was not included in the record
filed with this Court on appeal. However, the relevant facts
were set forth by the trial court in its letter opinion, its
order, and in the written statement of facts, without objection
by father.
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preclude a judicial finding that Flaneary was the genetic father.
In this case, the trial court found that the issue of
paternity was fully litigated in the divorce case, that the
divorce decree stated that there was one child born of the
marriage, and that father was barred from relitigating the issue
of paternity. In Slagle v. Slagle, 11 Va. App. 341, 398 S.E.2d
346 (1990), we held that collateral estoppel barred relitigation
of paternity which was necessarily decided in the
previously-entered unappealed divorce decree finding the child to
have been born of the marriage and setting child support. The
panel decision in Slagle is binding upon this Court unless the
issue is further considered by this Court en banc, overruled by
the Virginia Supreme Court or legislatively modified.
Commonwealth v. Burns, 240 Va. 171, 395 S.E.2d 456 (1990). For
the reasons set out in Slagle, we find that the trial court did
not err in ruling that the issue of father's paternity may not be
relitigated.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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