COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
STEVEN L. COMER
v. Record No. 2348-95-4 MEMORANDUM OPINION *
PER CURIAM
PAMELA PARSELL COMER APRIL 23, 1996
FROM THE CIRCUIT COURT OF
PAGE COUNTY
Perry W. Sarver, Judge
(Nancy M. Reed; Reed & Reed, on brief), for
appellant.
No brief for appellee.
Steven L. Comer (husband) appeals the circuit court's
dismissal of his Motion to Set Aside Finding of Paternity and his
Motion to Eliminate or Modify Child Support. On appeal, husband
raises the following questions: (1) whether previous court orders
established parentage pursuant to Code § 20-49.1; (2) whether the
trial court erred in ruling that husband was estopped to
challenge his paternity of Tyler Nelson Parsell; and (3) whether
the trial court erred in denying husband's motions. Upon
reviewing the record and opening brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. Rule 5A:27.
Husband was divorced from Pamela Parsell Comer (wife) by
decree entered May 2, 1994. The decree noted that there was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
proof of proper service upon husband, but husband failed "to
appear, answer or otherwise respond to such process." There is
no allegation that husband was not properly served or had no
notice of the decree. The trial court found that the parties
were married on June 16, 1990, and that "[t]here was one child
born of these parties, to-wit: Tyler Nelson Parsell born
February 4, 1989." Subsequently, a blood test determined that
Tyler was not husband's biological child. Husband filed motions
seeking to set aside the finding of paternity and to reduce or
terminate his obligation to pay child support. The trial court
denied husband's motions.
Husband argues that, under Code § 20-49.1(B), there are only
two ways in which paternity may be established in Virginia.
However, husband's argument is based on only a portion of the
pertinent statute. Quoted more fully, the section states the
following:
The parent and child relationship between a
child and a man may be established by written
statement of the father and mother made under
oath acknowledging paternity or
scientifically reliable genetic tests,
including blood tests, which affirm at least
a ninety-eight percent probability of
paternity. Such statement or blood test
result shall have the same legal effect as a
judgment entered pursuant to § 20-49.8.
Code § 20-49.1(B) (emphasis added). Sworn acknowledgements or
genetic tests are permissible means of establishing paternity,
but are in addition to the third means, "a judgment or order
establishing parentage." Code § 20-49.8(A).
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Husband began to challenge his paternity of Tyler in 1993.
Nonetheless, in the final decree of divorce entered in 1994, the
court found that Tyler was the child of these parties.
Therefore, there was a judgment or order establishing parentage.
The trial court found that this case is controlled by Slagle
v. Slagle, 11 Va. App. 341, 398 S.E.2d 346 (1990). In Slagle, as
here, an unappealed divorce decree established parentage, but
subsequent genetic testing proved that the husband was not the
child's father. We ruled that "[t]he divorce decree constituted
a final adjudication of . . . paternity, and [the father] is not
entitled to rely on subsequent findings with respect to that
issue as a basis of relief from the support ordered therein so
long as that decree remains a valid, final judgment." Id. at
348-49, 398 S.E.2d at 350-51.
Husband's reliance on Dunbar v. Hogan, 16 Va. App. 653, 432
S.E.2d 16 (1993), is misplaced. There, the sole means to
establish paternity was the putative father's sworn declaration.
There was no previous adjudication of paternity. Therefore,
Dunbar is inapposite to the circumstances here.
Husband also contends that the trial court erred in ruling
that he was collaterally estopped from denying his parentage of
Tyler because parentage was not an issue of fact actually
litigated and essential to the judgment. The order speaks for
itself and establishes that the question of parentage was
determined by the court. See Slagle, 11 Va. App. at 345, 398
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S.E.2d at 348-49. In addition, the record establishes that Tyler
was born before the parties married, and that husband questioned
Tyler's parentage before the decree was entered. Husband cannot
now allege the order was entered "by accident, or surprise, or as
a result of a fraud perpetrated on the court." Id. at 346, 398
S.E.2d at 349. Therefore, the trial court properly ruled that
husband was estopped from contesting paternity.
Similarly, for the reasons previously set forth, we find no
error in the trial court's dismissal of husband's motion to set
aside the finding of paternity.
Finally, husband argues that the trial court erred in
dismissing his motion to reduce or terminate child support.
"The court may, from time to time after
decreeing [for child support] . . . revise
and alter such decree concerning the care,
custody, and maintenance of the children and
make a new decree concerning the same, as the
circumstances of the parents and the benefit
of the children may require." Code § 20-108.
"In exercising this power the court may
revise and alter its decree if a material
change in condition and circumstances has
occurred." Where a party has demonstrated a
material change in circumstance, the trial
court must determine whether that change
justifies a modification in the support award
by considering "the present circumstances of
both parties and the benefit of the
children."
Watkinson v. Henley, 13 Va. App. 151, 156, 409 S.E.2d 470, 472-73
(1991) (citations omitted).
Assuming without deciding that the trial court should have
found that a material change in circumstances had occurred, there
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was no evidence that Tyler's best interests would be served by
allowing husband to reduce or terminate his support. Therefore,
we find no reversible error on the part of the trial court in
denying husband's motion to reduce or terminate support.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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