Travis Lloyd Gifford, etc. v. David B. Dunkum ( 1996 )


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  •                      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-