718 S.E.2d 482
Va. Ct. App.2011Background
- Breit and the gestational/biological mother were in a long-term unmarried relationship and sought conception via assisted reproduction using Breit's sperm.
- Eggs were retrieved from mother and fertilized with Breit's sperm; embryos were transferred in June 2008 (unsuccessful) and October 2008 (successful).
- Breit was present for both IVF procedures; mother became pregnant and gave birth to L.F. in July 2009; Breit and mother executed an Acknowledgment of Paternity shortly after birth and intended L.F.'s parentage jointly.
- Birth certificate listed Breit as father; Breit provided L.F. with care and health insurance and maintained a parental relationship.
- In August 2010, mother terminated Breit’s contact; Breit petitioned for custody/visitation in JDR court; JDR dismissed Breit’s petition without prejudice.
- Breit then petitioned in circuit court to determine parentage; mother and L.F. raised pleas in bar arguing Breit was barred by statutes governing assisted conception; GAL was appointed for L.F.; circuit court sustained pleas in bar and dismissed Breit’s petition; appellate review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §20-158(A)(3) bars Breit from parentage despite §20-49.2/§20-49.1(B)(2) Acknowledgment. | Breit argues statutes must be read together to permit paternity action. | Mother argues §20-158(A)(3) permanently bars donor paternity where conception was assisted and parents were unmarried. | No permanent bar; statutes read in pari materia allow Breit to pursue paternity. |
| Whether the Acknowledgment of Paternity is binding and effectual under §20-49.1(B)(2) despite unmarried status. | Breit asserts the Acknowledgment creates a binding father-child relationship. | Mother contends Acknowledgment cannot override §20-158(A)(3). | Acknowledgment under oath remains binding unless rescinded or shown fraud/duress; does not itself override §20-158(A)(3) as a permanent bar. |
| Whether the trial court abused its discretion in appointing GAL for L.F. | Breit argues GAL was not independent and favored mother. | Mother contends GAL appointment aligns with statutory framework. | Trial court abused discretion; appoint a new independent GAL on remand. |
| Whether Breit is entitled to attorney’s fees on appeal; and if not, why. | Breit sought fees for appellate work. | Wife argues Rule 5A:18 prevents preservation of this issue on appeal. | No attorney’s fees on appeal were awarded; rule maintained. |
Key Cases Cited
- Hawthorne v. Van-Marter, 279 Va. 566 (2010) (plea in bar standard; evidence matters; de novo review on interpretation of statutes)
- Lostrangio v. Laingford, 261 Va. 495 (2001) (plea in bar treated on pleadings when no evidence)
- Colbert v. Commonwealth, 47 Va. App. 390 (2006) (statutory interpretation; de novo review standard)
- City of Lynchburg v. English Constr. Co., 277 Va. 574 (2009) (statutory construction; avoidance of repugnancy)
- Andrews v. Creacey, 56 Va. App. 606 (2010) (in pari materia; related statutes harmonization)
- Commonwealth v. Fairfax County Sch. Bd., 49 Va. App. 797 (2007) (related statutes read consistently)
- Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 (2009) (in pari materia; avoid inconsonant result)
- Norfolk Div. of Soc. Servs. v. Unknown Father, 2 Va. App. 420 (1986) (GAL independence; infant representation)
- Bottoms v. Bottoms, 249 Va. 410 (1995) (GAL independent investigation standards)
- Luginbyhl v. Commonwealth, 48 Va. App. 58 (2006) (framing appellate review; constitutional considerations)