with whom FRANK, HUMPHREYS and AGEE, JJ., join, dissenting.
I dissent because the majority unnecessarily decides this appeal too broadly and on constitutional grounds. The implications of this decision will enfeeble adoptions once confidently accepted as final and unassailable. The result counters the established policy of encouraging adoptions and protecting their validity. This appeal does not require the decisional approach of the majority.
In this matter, the father simply appeals the sustaining of a demurrer. He brought his petition under Code § 8.01-428(D), *680which preserves the common law “independent action” for obtaining equitable relief from a judgment. See Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 11.4, at 479 (3d ed.1998). The elements of that action are well defined and include “ ‘the absence of fault or negligence on the part of the [petitioner].’ ” Charles v. Precision Tune, Inc., 243 Va. 313, 318, 414 S.E.2d 831, 833 (1992) (citation omitted). The father’s fault or negligence in signing a document he could not read is apparent from his pleading. Thus, the petition fails to plead sufficient facts to permit father’s action, see id., and a demurrer would be proper because the petition stated no action upon which the father was entitled to relief.
However, that need not be the basis for a decision in this matter. The trial court erred in sustaining a demurrer based on the statute of limitations of Code § 63.1-237. “[T]he defense that the statutory limitation period has expired cannot be set up by demurrer.” Code § 8.01-235. While the father did not raise that objection, preferring his broad constitutional attack, reversal on this narrow basis is preferable to the expansive, constitutional ruling of the majority.
Nonetheless, the majority holds “the adoption decree was void ab initio based on grandmother’s alleged fraud and the resulting lack of notice to and personal jurisdiction over the father.” It declares the statute of limitations for adoptions unconstitutional as it applied to this father. In reaching this decision, the majority assumes the consent executed by F.E. “constituted an appearance before the court,” but yet it concludes the trial court had no personal jurisdiction over him. The majority forgets that personal jurisdiction over a person is acquired by appearance and service of process is not necessary if the party appears voluntarily. W. Hamilton Bryson, Bryson on Virginia Civil Procedure 107 (3d ed.1997).
Instead, the majority permits extrinsic fraud to nullify the appearance. By concluding misrepresentations prevented personal jurisdiction, the majority makes service of process, the other means of obtaining personal jurisdiction over a party, a requirement. The majority acknowledges appearance *681by consent but requires service of process. This additional procedural mandate has not been the practice or the requirement. The General Assembly has consistently provided abridged procedures to simplify adoptions involving the consent of unwed fathers. Before Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), their consent was not required. See Szemler v. Clements, 214 Va. 639, 202 S.E.2d 880 (1974). After the Supreme Court of the United States extended constitutional protections to unwed fathers’ parental rights in Stanley, the General Assembly revised the requirements regarding parental consent. Acts of Assembly 1993 cc. 338, 553. Yet, the General Assembly still incorporated exceptions regarding unwed fathers. They are not required to give their consent in open court, but may consent before a notary upon their sworn statement. Code § 63.1-220.3(C)1.a.
For these reasons, I would reverse the trial court’s decision sustaining a demurrer based on the statute of limitations. On remand, the father could amend any defect in his pleading, and the facts surrounding the consent and the three-year delay could be properly addressed in a formal evidentiary hearing. Most importantly, the trial court could address the real issue in this case, the desire of the natural father for custody of his child. The trial court could decide whether it is in the best interests of the child to live with the natural father or the adoptive mother, natural grandmother.10 There is no need, at this point, to declare the adoption by the grandmother invalid.
To decide otherwise subjects any existing adoption grounded on consent, but entered without service of process upon the consenting party, to perpetual challenge as to whether the court may have lacked jurisdiction to grant the adoption.
. Nothing in this record suggests that the adoptive mother has custody based on a decree that would put the father at a disadvantage such as recognized in Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).