Travis Lloyd Gifford, etc. v. David B. Dunkum ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
TRAVIS LLOYD GIFFORD, ETC.
v. Record Nos. 0122-95-2 and 0123-95-2
DAVID B. DUNKUM
-AND- MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
DAVID B. DUNKUM FEBRUARY 13, 1996
v. Record No. 0110-95-2
BRENDA LEE GIFFORD
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Charles E. Powers (Edward D. Barnes; Edward D.
Barnes & Associates, P.C., on briefs), for Brenda
Lee Gifford and Travis Lloyd Gifford.
(R. Craig Evans; McCaul, Martin, Evans & Cook,
P.C., on briefs), guardian ad litem for Travis
Lloyd Gifford. Guardian submitting on briefs.
Charles O. Boyles (Gayle, Boyles, Culler &
Press, on briefs), for David B. Dunkum.
David B. Dunkum (Dunkum) and Travis Lloyd Gifford (Travis),
by his next friend Brenda Lee Gifford (Brenda), each appeal
various aspects of the circuit court's order finding Dunkum to be
the natural father of Travis and ordering Dunkum to pay child
support.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Dunkum raises five arguments on appeal: (1) the circuit
court lacked jurisdiction to order support for a legitimate child
when the person named in the suit as the biological father was
someone other than the father named in the birth certificate;
(2) Travis' appeal from the juvenile and domestic relations
district court to the circuit court was not properly perfected,
where the party appealing was identified as Brenda L. Gifford
(Travis' mother); (3) the circuit court erred in allowing
discovery in a criminal appeal from a court not of record
pursuant to Code § 16.1-296; (4) the circuit court erred in
ordering Dunkum to submit to a paternity test; and (5) the
circuit court erred in finding Dunkum was the parent of Travis
where the paternity blood tests obtained by Travis did not meet
the requirements of Code § 20-49.3. In his separate appeal,
Travis asserts (1) the circuit court erred in failing to award
him attorney's fees and costs; and (2) the circuit court erred in
failing to order retroactive child support from the date Travis
filed his petition.
We hold that the circuit court erred in failing to order
retroactive child support from the date Travis filed his
petition. Therefore, we reverse the circuit court's decision as
it relates to child support and order Dunkum to pay child support
from the date Travis filed his petition on August 3, 1993. We
affirm the circuit court's final order in all other respects.
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I.
FACTS
On August 3, 1993, Travis, by his next friend Brenda, filed
a petition in the Juvenile and Domestic Relations District Court
of Hanover County, naming Dunkum as the biological father and
requesting child support. The summons prepared by the juvenile
and domestic relations district court styled the case as "Travis
Lloyd Gifford, by his next friend, Brenda Lee Gifford v. David B.
Dunkum," and assigned it case number A-4885. The juvenile and
domestic relations district court dismissed Travis' petition on
October 27, 1993.
Brenda Gifford filed a notice of appeal, for a de novo
trial, to the Circuit Court of Hanover County on the same day.
The notice of appeal included the same case number as the
juvenile and domestic relations district court assigned, but did
not list Travis as a party. Dunkum filed a motion to dismiss in
the circuit court, claiming the appeal was not perfected because
Travis, not Brenda, was the necessary party to appeal from the
juvenile and domestic relations district court. After holding a
hearing, the circuit court denied Dunkum's motion on March 24,
1994.
On August 25, 1994, Travis propounded requests for admission
upon Dunkum. When Dunkum refused to respond to such requests,
Travis filed a motion for partial summary judgment. Dunkum filed
a motion to dismiss discovery, arguing discovery was
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inappropriate. On December 7, 1994, the parties appeared before
the circuit court on Travis' request for partial summary judgment
and other motions. After argument, the circuit court entered an
order finding Dunkum to be the biological father of Travis and
awarding Travis child support effective December 7, 1994. The
circuit court denied Travis' request for attorney's fees and
costs. Each party appealed to this Court.
II.
CIRCUIT COURT JURISDICTION
Dunkum asserts that both the juvenile and domestic relations
district court and the circuit court lacked jurisdiction to order
support for a legitimate child when the person named in the suit
as the biological father was someone other than the father named
in the birth certificate. Under Virginia law, a presumption
exists in favor of the legitimacy of a child born in wedlock.
NPA v. WBA, 8 Va. App. 246, 380 S.E.2d 178 (1989). Dunkum
therefore argues that because Travis' birth certificate listed
Brenda's husband as Travis' biological father, and no evidence
existed to the contrary, the circuit court erred in refusing to
dismiss Travis' petition. We disagree.
The General Assembly did not proscribe courts' jurisdiction
in matters involving presumptive parentage as recorded on a birth
certificate. See, e.g., Code § 16.1-241 (generally delineating
jurisdiction of juvenile and domestic relations district courts);
Code § 16.1-241(Q)(specifically granting juvenile and domestic
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relations district courts authority to determine parentage under
Code § 20-49.1 et seq.). Furthermore, Code § 32.1-272(B)
expressly states, "[a] certified copy of a vital record . . .
shall be considered for all purposes the same as the original and
shall be prima facie evidence of the facts therein . . . ."
(Emphasis added.) We know of no statute or case preventing a
child from rebutting the prima facie evidence of his or her
parentage as demonstrated in a birth certificate. See Johnson v.
Branson, 228 Va. 65, 319 S.E.2d 735 (1984).
III.
MISIDENTIFICATION OF PARTY ON APPEAL
At a January 25, 1994 circuit court hearing on this issue,
Dunkum argued that the appeal to the circuit court listed
"Brenda L. Gifford" as the party appealing, whereas the final
order entered in the juvenile and domestic relations district
court styled the case as "Travis Lloyd Gifford, by his next
friend, Brenda Lee Gifford." Dunkum contended, and contends on
appeal, that because the appeal was not taken in Travis' name it
was not an appeal by him as a necessary party, and therefore, the
circuit court lacked jurisdiction over the case. We disagree
with Dunkum.
After argument on the issue, the circuit court denied
Dunkum's motion to dismiss, holding that because the case number
on the notice of appeal matched the case number assigned in the
juvenile and domestic relations district court, the parties and
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the court had sufficient notice of the case that was being
appealed. The circuit court did not err in its ruling.
In so holding, we follow the logic of Carlton v. Paxton, 14
Va. App. 105, 415 S.E.2d 600, aff'd en banc, 15 Va. App. 265, 422
S.E.2d 423 (1992). In Carlton, the appellant filed a timely
notice of appeal but incorrectly identified the order being
appealed. The appellee argued that the appeal should have been
dismissed because of this error. We held that the appeal did not
fail on procedural grounds. Although the timeliness provision of
Rule 5A:69(a) is mandatory, we held that "[n]either the Rules nor
prior case decisions mandate dismissal of an appeal when an error
of reference and not timely filing is at issue." Id. at 109-110,
415 S.E.2d at 602. This rule is designed to protect the
appellee, not to penalize the appellant. Id. at 110, 415 S.E.2d
at 602 (citing Avery v. County School Bd., 192 Va. 329, 333, 64
S.E.2d 767, 770 (1951)). Following this reasoning, we hold in
this case that the trial court did not err in refusing to dismiss
the appeal.
IV.
DISCOVERY IN CIRCUIT COURT PROCEEDINGS
Dunkum asserts discovery is not available where a case is
appealed pursuant to Code § 16.1-296 from a juvenile and domestic
relations district court to a circuit court. Dunkum argues that
because the case involves a criminal matter, not a civil matter,
discovery was inappropriate. We disagree.
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Rules 4:0 and 4:1 provide that parties involved in actions
at law or suits in equity may obtain discovery by requests for
admission, as Travis did in this case. A petition for child
support is a civil action, Scheer v. Isaacs, 10 Va. App. 338,
340, 392 S.E.2d 201, 202 (1990), and a proceeding to determine
parentage under Title 20, Chapter 3.1 is a civil action. Code
§ 20-49.7. See Code § 16.1-296(F). Thus, the circuit court
proceedings are to conform to civil equity practice.
Additionally, "[t]he case was treated as a civil proceeding
in the juvenile and domestic relations court and the appeal to
the circuit court was, therefore, civil in nature." Id. at
340-41, 392 S.E.2d at 202 (citing Walthall v. Commonwealth, 3 Va.
App. 674, 680, 353 S.E.2d 169, 172 (1987)). Finally, Dunkum's
counsel specifically conceded at the circuit court's August 12,
1994 hearing that the case was "to be tried as a chancery case."
Dunkum did not question the use of discovery in a civil de
novo trial in the circuit court. The only question raised
regarding this issue was the propriety of discovery in a criminal
appeal. Consequently, we assume, without deciding, that the
rules applicable to civil cases initiated in circuit court apply
in this case. When Dunkum did not answer Travis' request for
admission, the facts set forth in the request were deemed
admitted. Rule 4:11(a)(stating a party admits matters if he does
not respond within 21 days to requests for admission); Metro
Mach. Corp. v. Mizenko, 244 Va. 78, 82, 419 S.E.2d 632, 634
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(1992). One request for admission specifically asked Dunkum
whether he was "the biological father of Travis Lloyd Gifford."
Another request asked Dunkum if he signed an affidavit on May
27, 1992, in which he admitted paternity of Travis. Because
Dunkum never answered these questions, he is deemed to have
admitted paternity.
Because Dunkum admitted his paternity in the circuit court
proceedings, we need not decide two separate issues, raised by
Dunkum, namely: (1) the circuit court erred in ordering Dunkum
to submit to a paternity test; and (2) the circuit court erred in
finding Dunkum was Travis' father where the paternity blood tests
obtained by Travis did not meet the requirements of Code
§ 20-49.3.
V.
ATTORNEY'S FEES AND COSTS AND RETROACTIVE CHILD SUPPORT
First, Travis argues the trial court abused its discretion
in refusing to award Travis reasonable attorney's fees and costs.
We disagree. An award of attorney's fees is a matter submitted
to the sound discretion of the trial court and is reviewable on
appeal only for an abuse of discretion. Ingram v. Ingram, 217
Va. 27, 29, 225 S.E.2d 362, 364 (1976). The key to a proper
award of attorney's fees is reasonableness and must be made only
after examining all of the circumstances and equities. McGinnis
v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
Travis did not show that the circuit court abused its discretion.
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The circuit court made no finding Dunkum abused the discovery
process, it never sanctioned him for abuse of any type, and
Travis fails to concretely allege how Dunkum used dilatory
tactics in prolonging the course of the litigation. See Alphin
v. Alphin, 15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992).
Second, Travis asserts the circuit court erred in failing to
make its child support award retroactive to the date the petition
was filed, instead of making it effective on the date of its
final order. "Code § 20-107.2(2) vests discretion in the trial
court in awarding child support and such awards will not be
reversed on appeal unless plainly wrong or unsupported by the
evidence." Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47
(1986)(citation omitted). Despite the circuit court's broad
discretion in this area, we hold that the circuit court's ruling
on child support was plainly wrong. See Hur v. Virginia Dept. of
Social Svcs. ex rel. Klopp, 13 Va. App. 54, 62, 409 S.E.2d 454,
459 (1991). In announcing its ruling, the circuit court held
that child support payments "are to start from today[,] and
[Travis] will not get any prior support because the Court feels
that we were in this position because of [Brenda's] position she
took and changed from the date of birth until we proved
otherwise." The circuit court abused its discretion because its
ruling penalized Travis, the beneficiary of the child support,
for actions taken not by Travis, but by Travis's mother, Brenda.
We therefore reverse this ruling of the circuit court's order
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and render judgment upon the merits, ordering retroactive child
support in the amount awarded by the court from August 3, 1993.
See Code § 8.01-681.
For the foregoing reasons, we affirm in part and reverse in
part the circuit court's order, and we remand the case for the
circuit court to enter an order of support in accordance with the
foregoing.
Record No. 0110-95-2 affirmed.
Record Nos. 0122-95-2, 0123-95-2 reversed and remanded.
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