CW, DSS, DCSE, ex rel Breakiron v. Robert Farmer

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. DIANA L. BREAKIRON
OPINION BY
v. Record No. 1745-99-1 JUDGE RICHARD S. BRAY
MAY 9, 2000
ROBERT D. FARMER
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
Leonard B. Sachs, Judge Designate
Marsha B. Lambert, Special Counsel (Mark L.
Earley, Attorney General; Ashley L. Taylor,
Jr., Deputy Attorney General; Robert B.
Cousins, Jr., Senior Assistant Attorney
General; Craig M. Burshem, Regional Special
Counsel, on brief), for appellant.
No brief or argument for appellee.
The instant cause came before the trial court on a "Motion
for Show Cause," and related "Summons," initiated by the
Commonwealth of Virginia, Department of Social Services, Division
of Child Support Enforcement (Division), against Robert D. Farmer
(appellee), arising from appellee's alleged failure to comply with
an "Administrative [Child] Support Order." In adjudicating the
motion, the court determined that appellee was not the father of
the child, vacated the order, and relieved appellee from all
accrued arrearages.
The Division appeals, arguing on brief that the court was
without "statutory authority" to entertain a collateral attack on
the order and "retroactively modify" its terms at "a show cause
hearing." The Division further contended that the court
erroneously determined that Diana L. Breakiron (mother) had
fraudulently identified appellee as father of the child, "based
solely upon genetic test results" and "without allowing any
testimony" on the issue. Finding the Division procedurally barred
from challenging the court's prospective vacation of the order,
but agreeing that the retroactive discharge of accrued arrearages
was error, we affirm in part and reverse in part.
I.
The pertinent facts, before this Court on a "Written
Statement of Facts," are uncontroverted. On July 12, 1995,
Diana L. Breakiron gave birth to D. Shortly thereafter, on July
31, 1995, appellee executed a "Declaration of Paternity" and
related "Parental Rights and Responsibilities Statement,"
acknowledging, under oath, that he fathered D. Also on July 31,
the Division entered an "Administrative Support Order" (ASO) in
accordance with Code § 63.1-249, et seq., which "obligated"
appellee, in pertinent part, to pay child support of $65 per month
to the Commonwealth, through the Division, as reimbursement for
Aid to Dependent Children (ADC) benefits to mother, as "Custodial
Parent" of D. On August 21, 1995, the Division entered a revised
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ASO, which increased appellee's monthly support obligation to
$241.
Appellee waived "formal service" of the initial ASO and was
properly served with the second order. Both expressly advised
appellee of his right to "object to [the] order," receive an
administrative "appeal hearing" and, if aggrieved by the resulting
"decision," pursue "an appeal de novo to the [J&D] court,"
specifying the procedures necessary to such remedies. Each ASO
also notified appellee that the subject "obligation[s] and
arrears" were "considered legally established" and "create[d] a
judgment by operation of law." Appellee appealed neither order,
and both became "effective" pursuant to Code § 63.1-252.1.
On or about January 30, 1997, the Division filed a "Motion
for Show Cause Summons" in the Gloucester County Juvenile and
Domestic Relations District Court (J&D court), alleging that the
court "should . . . imprison[], fine[] or otherwise punish[]"
appellee for non-compliance with the revised ASO, with an accrued
arrearage of $3,446.69, and requesting the "issuance of a show
cause" against him. In response, the J&D court issued a summons
requiring appellee to appear on a date specified and "show cause,
if any," in defense of the Division's action.
Appellee appeared before the J&D court at the scheduled
hearing, denied that he was the father of the child, and requested
"DNA blood testing." The court granted father's motion and
recessed the hearing pending completion of the necessary
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procedures and receipt of the attendant report. The hearing
re-convened on June 23, 1997, and the test results, received into
evidence, disclosed that appellee was "not the biological father
of [D]." Accordingly, the court dismissed the show cause and
vacated the alleged arrears.
The Division appealed to the trial court and, at a related
hearing on October 15, 1997, "advised the court that the issue on
appeal was whether [appellee] was responsible for arrears that
accrued from the entry of the [ASO] until the determination he was
not the biological father" of D. The Division conceded that
appellee was not the father but disputed that mother had committed
"a fraud" in naming him. Nevertheless, the court declined the
Division's request to present testimony on the issue, and the
Division proffered no evidence for the record. The various
documentary proofs, including the reported test results, were
received into evidence, and the court, after finding that appellee
was not the father of the child and that mother had "committed a
fraud upon the court," vacated the ASO, expressly relieving
appellee from all related arrearages.
On appeal to this Court, the Division complains that the
trial court, acting only upon the Division's "motion to show
cause," lacked authority to, at once, vacate the existing ASO and
forgive accrued arrearages. Further, the Division contends that
the court erroneously determined the mother "had committed fraud
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based solely on the . . . test results that excluded [appellee] as
the child's father," without permitting additional evidence.
II.
Code § 63.1-249 declares "it . . . the purpose of [Chapter
13, Title 63.1] to promote the efficient and accurate collection,
accounting and receipt of support for financially dependent
children and their custodians, and to further the effective and
timely enforcement of such support." 1 Accordingly, Code
§ 63.1-250.1(A) provides, in pertinent part, that "[i]n the
absence of a court order, the Department of Social Services shall
have the authority to issue [an ASO] directing the payment of
child . . . support[.]" "The [Division] shall initiate [such]
proceedings by issuing notice containing the [ASO]," which "shall
be served upon the debtor," and the ASO "shall become effective
unless timely contested" by "answer" and related "administrative
hearing." Code § 63.1-252.1. A party aggrieved by "the decision
of the hearing officer" may appeal, de novo, "to the [J&D court]
of the jurisdiction wherein appellant resides." Code
§ 63.1-268.1.
An ASO "shall have the same force and effect as a court
order." Code § 63.1-258.3; see Code § 63.1-250. However, "[t]he
existence of an [ASO] shall not preclude either an obligor or
1
We have previously determined that the statutory ASO
scheme satisfies due process. See Morris v. Commonwealth, Dep't
of Soc. Servs., 13 Va. App. 77, 408 S.E.2d 588 (1991).
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obligee from commencing appropriate proceedings in a [J&D court]
or a circuit court," Code § 63.1-252.1, and "any order issued by a
court of this Commonwealth supercedes an administrative order."
Code § 63.1-258.3.
"[I]t is generally held that '[i]n the absence of fraud,
accident or surprise, a judgment, when entered and no appeal
taken, is conclusive, even though the judgment is manifestly wrong
in law or fact.'" Slagle v. Slagle, 11 Va. App. 341, 346, 398
S.E.2d 346, 349 (1990) (citation omitted). However, "a judgment
obtained by 'intrinsic fraud' is . . . voidable and can be
challenged . . . by direct appeal or by a direct attack in an
independent proceeding." Peet v. Peet, 16 Va. App. 323, 326, 429
S.E.2d 487, 490 (1993) (citations omitted); see Slagle, 11 Va.
App. at 348, 398 S.E.2d at 350. "'Intrinsic fraud' includes
perjury . . . or other means of obscuring facts presented before
the court and whose truth or falsity as to the issues being
litigated are passed upon by the trier of fact." Peet, 16 Va.
App. at 326-27, 429 S.E.2d at 490. A party must act immediately
upon the discovery of intrinsic fraud "to rectify the alleged
wrong and cannot wait to assail the judgment collaterally whenever
it is enforced." Id. at 327, 429 S.E.2d at 490.
However, the statutory scheme investing the Division with
authority to "issue" an ASO clearly contemplates a command of less
dignity than a judicially countenanced support order. Code
§ 63.1-252.1 expressly preserves the right of either an "obligor
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or obligee" of an ASO to, at any time during the "existence" of
such order, commence "appropriate proceedings" in a J&D or circuit
court. Commensurate with the parties' right to access the
judiciary, Code § 63.1-258.3 subordinates an ASO to "any order
issued by a court of this Commonwealth." Thus, an ASO remains
always vulnerable to displacement by a superceding judicial act
and both the obligor and obligee are entitled to initiate
proceedings to obtain such relief, without the necessity of
proving fraud, accident or surprise.
The instant record clearly discloses that appellee commenced
no proceedings in either the J&D or trial court to right any wrong
that allegedly inhered in the subject ASO, but relied instead upon
a collateral attack in defense of the Division's enforcement
procedures. Nevertheless, the J&D court entertained appellee's
procedurally flawed attack on the ASO, determining that appellee
did not father the child, based upon the paternity testing, and
vacated the ASO, discharging the arrears.
On appeal to the trial court, the Division conceded that
appellee was not the father and "advised the court that the issue
on appeal was whether [appellee] was responsible for arrears that
accrued from the entry of the [ASO] until the determination he was
not the biological father of the child." (Emphasis added).
Moreover, the record does not disclose a proper objection by the
Division when the court also prospectively vacated the ASO. The
"Written Statement of Facts" recites no objection by the Division
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to such ruling, and objections appended by the Division to the
final order address only the retroactive discharge of arrears, and
related evidentiary issues. 2 "A matter not in dispute before the
trial court will not be considered for the first time on
appeal[.]" Connelly v. Commonwealth, 14 Va. App. 888, 891, 420
S.E.2d 244, 246 (1992) (citing Rule 5A:18). Thus, we decline to
address the Division's challenge to that portion of the order
prospectively vacating the ASO. See Aviles v. Aviles, 14 Va. App.
360, 364, 416 S.E.2d 716, 718 (1992) (court may entertain
procedurally defective attack on decree, absent proper objection).
With respect to the remainder of the order, which relieved
appellee from arrears that had accrued from the entry of the ASO,
the Division correctly argues that he failed to appeal the ASO at
the inception, and, thereafter, did not commence an "appropriate
[judicial] proceeding" to supercede the order. Under such
circumstances, appellee's collateral attack in defense of Division
efforts to enforce the arrears was ill founded, and the court
erred in retroactively discharging the accrued obligation.
Accordingly, we affirm the order of the trial court that
vacates the ASO prospectively, but reverse the discharge of
2
The Division also failed to proffer for the record any
evidence that was precluded by the disputed rulings. We,
therefore, have "'no basis to decide whether the evidence was
admissible.'" Zelenak v. Commonwealth, 25 Va. App. 295, 302, 487
S.E.2d 873, 876 (1997) (en banc) (citation omitted).
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arrearages previously accrued and remand the proceedings for
determination of such issue.
Affirmed, in part,
reversed and
remanded, in part.
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