Steven L. Comer v. Pamela Parsell Comer

• Court: Court of Appeals of Virginia
• Decided: April 23, 1996
• Docket: 2348954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

STEVEN L. COMER

v. Record No. 2348-95-4 MEMORANDUM OPINION * PER CURIAM PAMELA PARSELL COMER APRIL 23, 1996

FROM THE CIRCUIT COURT OF PAGE COUNTY Perry W. Sarver, Judge (Nancy M. Reed; Reed & Reed, on brief), for appellant.

No brief for appellee.

Steven L. Comer (husband) appeals the circuit court's

dismissal of his Motion to Set Aside Finding of Paternity and his

Motion to Eliminate or Modify Child Support. On appeal, husband

raises the following questions: (1) whether previous court orders

established parentage pursuant to Code § 20-49.1; (2) whether the

trial court erred in ruling that husband was estopped to

challenge his paternity of Tyler Nelson Parsell; and (3) whether

the trial court erred in denying husband's motions. Upon

reviewing the record and opening brief, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the

decision of the trial court. Rule 5A:27.

Husband was divorced from Pamela Parsell Comer (wife) by

decree entered May 2, 1994. The decree noted that there was * Pursuant to Code § 17-116.010 this opinion is not designated for publication. proof of proper service upon husband, but husband failed "to

appear, answer or otherwise respond to such process." There is

no allegation that husband was not properly served or had no

notice of the decree. The trial court found that the parties

were married on June 16, 1990, and that "[t]here was one child

born of these parties, to-wit: Tyler Nelson Parsell born

February 4, 1989." Subsequently, a blood test determined that

Tyler was not husband's biological child. Husband filed motions

seeking to set aside the finding of paternity and to reduce or

terminate his obligation to pay child support. The trial court

denied husband's motions. Husband argues that, under Code § 20-49.1(B), there are only

two ways in which paternity may be established in Virginia.

However, husband's argument is based on only a portion of the

pertinent statute. Quoted more fully, the section states the

following: The parent and child relationship between a child and a man may be established by written statement of the father and mother made under oath acknowledging paternity or scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Such statement or blood test result shall have the same legal effect as a judgment entered pursuant to § 20-49.8.

Code § 20-49.1(B) (emphasis added). Sworn acknowledgements or

genetic tests are permissible means of establishing paternity,

but are in addition to the third means, "a judgment or order

establishing parentage." Code § 20-49.8(A).

2 Husband began to challenge his paternity of Tyler in 1993.

Nonetheless, in the final decree of divorce entered in 1994, the

court found that Tyler was the child of these parties.

Therefore, there was a judgment or order establishing parentage.

The trial court found that this case is controlled by Slagle

v. Slagle, 11 Va. App. 341, 398 S.E.2d 346 (1990). In Slagle, as

here, an unappealed divorce decree established parentage, but

subsequent genetic testing proved that the husband was not the

child's father. We ruled that "[t]he divorce decree constituted

a final adjudication of . . . paternity, and [the father] is not

entitled to rely on subsequent findings with respect to that

issue as a basis of relief from the support ordered therein so

long as that decree remains a valid, final judgment." Id. at

348-49, 398 S.E.2d at 350-51.

Husband's reliance on Dunbar v. Hogan, 16 Va. App. 653, 432

S.E.2d 16 (1993), is misplaced. There, the sole means to

establish paternity was the putative father's sworn declaration.

There was no previous adjudication of paternity. Therefore, Dunbar is inapposite to the circumstances here.

Husband also contends that the trial court erred in ruling

that he was collaterally estopped from denying his parentage of

Tyler because parentage was not an issue of fact actually

litigated and essential to the judgment. The order speaks for

itself and establishes that the question of parentage was

determined by the court. See Slagle, 11 Va. App. at 345, 398

3 S.E.2d at 348-49. In addition, the record establishes that Tyler

was born before the parties married, and that husband questioned

Tyler's parentage before the decree was entered. Husband cannot

now allege the order was entered "by accident, or surprise, or as

a result of a fraud perpetrated on the court." Id. at 346, 398

S.E.2d at 349. Therefore, the trial court properly ruled that

husband was estopped from contesting paternity.

Similarly, for the reasons previously set forth, we find no

error in the trial court's dismissal of husband's motion to set

aside the finding of paternity. Finally, husband argues that the trial court erred in

dismissing his motion to reduce or terminate child support. "The court may, from time to time after decreeing [for child support] . . . revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." Code § 20-108. "In exercising this power the court may revise and alter its decree if a material change in condition and circumstances has occurred." Where a party has demonstrated a material change in circumstance, the trial court must determine whether that change justifies a modification in the support award by considering "the present circumstances of both parties and the benefit of the children."

Watkinson v. Henley, 13 Va. App. 151, 156, 409 S.E.2d 470, 472-73

(1991) (citations omitted).

Assuming without deciding that the trial court should have

found that a material change in circumstances had occurred, there

4 was no evidence that Tyler's best interests would be served by

allowing husband to reduce or terminate his support. Therefore,

we find no reversible error on the part of the trial court in

denying husband's motion to reduce or terminate support.

Accordingly, the decision of the circuit court is summarily

affirmed.