Beaulieu v. Hatton

33 Va. Cir. 199, 1994 Va. Cir. LEXIS 797

Opinion

By Judge Joseph E. Spruill, Jr.

A final decree of divorce was entered between these parties by this court on March 16, 1983, reciting that one child, James T. Hatton, was born of the marriage on August 10, 1980. Since that time, the father, defendant herein, has been under order by the Juvenile and Domestic Relations Court to pay child support. In August, 1993, the father petitioned the Juvenile Court to order DNA testing which was done in November, 1993. These tests established that John T. Hatton, Jr., is not the father of James. As a result of this testing, the Juvenile Court terminated its support order. The Division of Child Support Enforcement has appealed.

The divorce decree of March 16, 1983, did not order the defendant to pay child support. Rather, it referred the case to the Juvenile Court for all proceedings regarding support of the child. Thus, it is the order of the Juvenile Court, and not the decree of this Court, which the defendant seeks to modify. This differentiates the present case from Slagle v. Slagle, 11 Va. App. 341 (1990), and Aviles v. Aviles, 14 Va. App. 360 (1992). In each of these cases, the divorce decree itself provided for support, and the Court of Appeals held that these decrees were final. Collateral estoppel barred relitigation of issues therein decided.

Here, the father does not ask that the Circuit Court decree be modified. He simply asks that the Juvenile Court order directing him to support James be modified due to a change of circumstances, i.e., that he is not the biological father of James.

For these reasons, the order of support is modified and reduced to zero. The arrearage shall be repaid at the rate set by the Juvenile Judge, which is $153.00 per month, retroactive to November 15, 1993.