David B. Dunkum v. Brenda Lee Gifford

• Court: Court of Appeals of Virginia
• Decided: February 13, 1996
• Docket: 0110952
• Status: Unpublished

Opinion

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.

-2- 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

-3- 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

-4- 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

-5- 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.

-6- 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

-7- (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.

-8- 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

-9- 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.

-10-