Commonwealth of Virginia, etc v. Vincent Richardson

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. COMPTROLLER OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2179-01-1 JUDGE JEAN HARRISON CLEMENTS
AUGUST 27, 2002
VINCENT RICHARDSON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Rebecca L. Copeland, Special Counsel
(Randolph A. Beales, Attorney General;
Craig M. Burshem, Senior Assistant Attorney
General, on briefs), for appellant.
Ida Outlaw McPherson (Adam D. Melita; Legal
Services of Eastern Virginia, Inc., on
brief), for appellee.
The Division of Child Support Enforcement (DCSE) appeals a
decision of the Circuit Court of the City of Newport News (trial
court) terminating an administrative support order that required
Vincent Richardson to pay child support for the four children born
during his marriage to Gesilia Deneen Richardson and enjoining
DCSE from collecting the public assistance arrears established in
that order. In reaching that decision, the trial court found that
Mr. Richardson was not the natural or legal father of Mrs.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Richardson's four children, DCSE's failure to provide assistance
to Mr. Richardson in appealing the administrative support order to
the juvenile and domestic relations district court violated his
due process rights, and DCSE's different standards of proof for
single and married men who disputed paternity during the
administrative support proceeding violated Mr. Richardson's equal
protection rights. On appeal, DCSE contends the trial court erred
in (1) retroactively terminating a valid final administrative
support order and enjoining the collection of the arrears
established under that order and (2) in finding DCSE's policies
and procedures in effect at the time unconstitutional. For the
reasons that follow, we affirm the trial court's judgment in part,
reverse the trial court's judgment in part, and remand this matter
to the trial court.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
"In determining whether the trial court made an error of law,
'we review the trial court's statutory interpretations and legal
conclusions de novo.'" Rollins v. Commonwealth, 37 Va. App. 73,
79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28
Va. App. 187, 193, 503 S.E.2d 233, 236 (1998)).
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The facts essential to the resolution of this appeal are not
in dispute. Mr. and Mrs. Richardson were married in 1989. They
separated in 1990 but did not divorce. They were still married
but living separate and apart as of the date of the hearing before
the trial court on March 29, 2001.
Mrs. Richardson had four children during the marriage. All
of the children, however, were born after Mr. and Mrs. Richardson
had separated. Mrs. Richardson received public assistance on
behalf of the children.
On February 17, 1999, concluding, based on its policies and
procedures, that Mr. Richardson was the legal father of the
children because he was still married to their mother, DCSE
entered an administrative support order requiring Mr. Richardson
to pay child support for the children and to reimburse the
Commonwealth for the public assistance paid to the mother. Mr.
Richardson appealed that order to a hearing officer, claiming he
was not the children's biological father. On March 29, 1999, the
hearing officer sustained the administrative order, noting,
"regulations stipulate that [the noncustodial parent] is the legal
father by virtue of the marriage. [The juvenile and domestic
relations district court] addresses paternity."
At the hearing before the trial court, Mr. Richardson
testified he attempted to timely appeal the hearing officer's
decision to the Hampton Juvenile and Domestic Relations District
Court. Mrs. Richardson testified she was subpoenaed to the
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Hampton Juvenile and Domestic Relations District Court but Mr.
Richardson did not appear for the hearing and the court
dismissed the matter. On December 6, 1999, the Hampton Juvenile
and Domestic Relations District Court entered an "Order of
Support (Civil)" dismissing Mr. Richardson's "[o]bligor support
petition per written request of [Mrs. Richardson]." The record
contains no other documentation from the Hampton Juvenile and
Domestic Relations District Court.
On February 15, 2000, after obtaining assistance of counsel,
Mr. Richardson filed a motion with the Newport News Juvenile and
Domestic Relations District Court to have the administrative
support order set aside and to have the issue of paternity
judicially determined. By "Order Determining Parentage" dated
January 19, 2001, the Newport News Juvenile and Domestic Relations
District Court found, based on DNA testing, that Mr. Richardson
was not the biological father of Mrs. Richardson's four children.
The court also found, however, that it did not have jurisdiction
to set aside the administrative support order. Mr. Richardson
appealed that decision to the trial court.
Following a hearing de novo, the trial court entered an order
on July 31, 2001, finding that the hearing officer did not have
the authority, under DCSE's policies and procedures in effect at
the time of the entry and review of the administrative support
order, "to disestablish paternity between legally married parties"
and that Mr. Richardson "failed to file a timely appeal [with the
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juvenile and domestic relations district court] within ten . . .
days of receipt of the [hearing officer's] decision."
Nevertheless, the trial court concluded that Mr. Richardson
was "not the natural or legal father of the four children born
during the marriage." According to the trial court,
[a]ny presumption of legitimacy of paternity,
which would otherwise dictate that [Mr.
Richardson] is the father of the children
. . ., has been rebutted with sufficiency by
the facts of this case, especially where
[Mrs. Richardson] advised [DCSE] of the
natural father's [sic] identities and that
[Mr.] Richardson was not the biological
father, at or before the initial enforcement
interview, and [DCSE] took no action to
resolve the issues of paternity.
The trial court also concluded that, as applied to the
circumstances of this case, the policies and procedures manual in
effect when DCSE entered the subject administrative support order
violated Mr. Richardson's due process and equal protection rights
guaranteed under the United States Constitution. The court found
that DCSE's manual failed to require DCSE or any other agency to
assist Mr. Richardson in timely noting his appeal of the hearing
officer's decision to the juvenile and domestic relations district
court, in violation of his due process rights. The court further
found that the manual "provided a different level of proof and
sufficiency of evidence for married men as compared to unmarried
men, who might both dispute paternity during an [a]dministrative
[s]upport proceeding," in violation of Mr. Richardson's equal
protection rights.
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Based on these rulings, the trial court retroactively
terminated the administrative support order and enjoined DCSE from
collecting any arrearages that had accrued under that order. This
appeal by DCSE followed.
DCSE first contends on appeal that, because the
administrative support order became a final order when Mr.
Richardson failed to timely appeal the hearing officer's decision
to the juvenile and domestic relations district court, the trial
court did not have the authority to terminate the order
retroactively and enjoin DCSE from collecting accrued arrears. We
agree.
An administrative support order "shall have the same force
and effect as a court order." Code § 63.1-258.3; see Code
§ 63.1-250. Such an order becomes final if no appeal is taken
"within ten days of receipt of the hearing officer's decision."
Code § 63.1-268.1. Furthermore, "it is generally held that 'in
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) (quoting
Carpenter v. Ingram, 152 Va. 27, 36, 146 S.E. 193, 195 (1929)).
In this case, Mr. Richardson has not argued in the trial
court or on appeal that the administrative support order was
entered either as an accident or surprise, or as a result of fraud
perpetrated on DCSE. Nor did the trial court invalidate the order
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on any of those grounds. Indeed, the trial court found that Mrs.
Richardson informed DCSE that Mr. Richardson was not the
children's biological father, but that DCSE, because of its
policies and procedures, "took no action to resolve the issue[] of
paternity." The trial court also found that the hearing officer
had no authority "to disestablish paternity between legally
married parties" and that Mr. Richardson failed to timely appeal
the hearing officer's decision to the juvenile and domestic
relations district court. Consequently, the administrative
support order is a valid, conclusive judgment.
However, the statutory scheme for the entry of administrative
support orders allows the obligor or obligee under such an order
to institute "appropriate proceedings" in the juvenile and
domestic relations district court or circuit court to obtain
relief from the administrative support order without alleging
surprise, accident, or fraud. Commonwealth, ex rel. Breakiron v.
Farmer, 32 Va. App. 430, 436, 528 S.E.2d 183, 186 (2000) (citing
Code § 63.1-252.1). The "superceding judicial act" displaces the
administrative support order. Id. However, the court may not
terminate or modify a final support order retroactively "'to
cancel a support arrearage or to relieve a parent of an accrued
support obligation.'" Commonwealth, ex rel. Graham v. Brazemore,
32 Va. App. 451, 456, 528 S.E.2d 193, 196 (2000) (quoting Bennett
v. Commonwealth, Dep't of Soc. Servs., 22 Va. App. 684, 696, 472
S.E.2d 668, 674 (1996)). "'A court may only modify a support
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order to be effective prospectively. The order may be made
effective "with respect to any period during which there is a
pending petition for modification, but only from the date that
notice of such petition has been given to the responding party."'"
Id. (emphasis omitted) (quoting Bennett, 22 Va. App. at 696, 472
S.E.2d at 674 (citation omitted) (quoting Code § 20-108)).
Here, Mr. Richardson filed a motion with the juvenile and
domestic relations district court on February 15, 2000, seeking a
judicial determination of paternity and an order absolving him of
all future child support obligations and accumulated arrears. Mr.
Richardson then appealed to the trial court the juvenile and
domestic relations district court's ruling that it did not have
jurisdiction to retroactively set aside the administrative support
order.
DCSE concedes, on appeal to this Court, that the trial court
had the power to grant Mr. Richardson prospective relief from the
subject administrative support order. We hold, therefore, that
the trial court had the authority to adjudicate Mr. Richardson's
paternity and, having found that he was not the father of Mrs.
Richardson's children—a finding DCSE does not challenge on
appeal—to terminate his child support obligation prospectively,
effective from the date DCSE was given notice of the relief
requested. However, because the accrued arrears were not subject
to modification by the trial court, the court erred in terminating
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the administrative support order retroactively and enjoining DCSE
from collecting those arrears. 1
Accordingly, we affirm the trial court's decision terminating
Mr. Richardson's prospective child support obligation, reverse its
decision terminating the administrative support order
retroactively and enjoining DCSE from collecting accrued arrears,
and remand this matter to the trial court for entry of an order
consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
1
Having held the trial court lacked authority to
retroactively terminate the administrative support order and
enjoin the collection of the accrued arrears, we need not
address DCSE's claim that the trial court erred in ruling the
order was invalid because DCSE's policies and procedures manual
violated the due process and equal protection clauses of the
United States Constitution.
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