*1 Salem TEDDY JOE SLAGLE MARIE SLAGLE JANICE No. 1492-88-3 20, 1990 Decided November *2 Counsel Detrick,
Robert W. for appellant. Robert B. (Warren Dickert, Dickert & brief), for appellee. Opinion Teddy Joe
KEENAN, Slagle (husband) from a deci- appeals J. sion of the trial court ordering him to child in pay support accor- dance with the final of divorce. In this he argues appeal, that he should longer be obligated to Jr. support Teddy Slagle, (child) because blood tests performed after of the final de- cree establish conclusively that he is not the biological father of the child. The sole issue husband, here is presented whether the in motion, from estopped challenging his and his at- tendant obligation child, the minor support where the final di- marriage. We the child was born of vorce decree states that challenge. bars such a the doctrine of collateral estoppel find that the decision of the trial court. we affirm Accordingly, were married June 1982. Slagle (wife) and Janice Teddy 1981, that, Janice informed Teddy Prior to in March or April son, who with his child. A was named that she was pregnant 21, Jr., on November 1981. The Slagle, was born Teddy June 1982 until at together September lived from time The husband lite they separated. paid pendente $600 month to the wife until a final decree of the amount of per divorce was entered on 1986. At that time the wife was April awarded of the child. The husband was ordered to custody pay $250 $350 in child month in month per per spousal In the final divorce the trial court found that support. Slagle, marriage Jr. was a born to the Teddy No was taken from this decree. *3 9, 1987,
On do- July juvenile husband petitioned mestic relations court to order tests to blood determine grouping his in light of assertions made the wife that he was paternity by addition, not the father of the child. In re- husband review, warranted, quested that the court and if abate both his and child spousal obligations. receiving After a support report father,1 which concluded that the husband cannot be the child’s court juvenile abated the husband’s child as support obligation of October 1987. The did juvenile court not reduce spousal sup- however, and also ordered port payments, ar- payment support $2524. rearages totalling Both parties appealed. 15,
A hearing ore tenus was held in circuit court on July 1988. At that hearing, trial court found that the 1986 final April decree of divorce constituted a final adjudication husband’s and thus was not paternity subject to collateral attack. Accord- the trial ingly, court reversed the the juvenile order of court abat- ing the husband’s child obligation and ordered the hus- band to making resume the amount of payments $250 per month. The husband then noted this appeal. 1 Rather, report any probability paternity. The did not contain numeric it stated paternity report presence was excluded. The indicated that due to the anti certain
gens versa, present alleged in the child which were not in the father and vice “the father cannot be the father of the child.”
344 the trial erred in deter before us is whether
The issue that he was not the father of husband’s evidence mining that the his child basis on to modify sup the child was not a proper of his had been already because the issue paternity port payments decree. Under the in the final divorce adjudicated conclusively “the to the first action and of collateral estoppel, principle litigating from a subsequent their are privies precluded action] [in a and essential to valid and actually litigated issue of fact & W. v. Ry. in the first action.” judgment final personal Norfolk 640, 217, Co., 638, 218 221 Va. 272 S.E.2d Bailey Lumber States, 153 Montana v. United U.S. (1980); see also em (1979)(“A adjudication, fundamental of common-law precept judi collateral and res estoppel bodied in the related doctrines of cata, in issue and is or fact ‘right, question distinctly put that a . . . can jurisdiction a court of competent determined directly ”); Ashe not be in a suit between the parties.’ disputed subsequent Swenson, (1970). U.S. a The husband raised the issue of his petition wherein the wife was named as a for modification of child support therefore, be- no that the issue was defendant. There is question, Fur- raised in a action between the same ing Thus, thermore, as to the final decree. it is a was taken issues, therefore, are remaining final Rule 1:1. The judgment. in the di- litigated whether the husband’s actually whether of the husband’s paternity vorce proceedings, question judgment was essential to the and whether the judgment, valid.
It well settled that the burden rests with the assert party ing collateral bar to establish preponderance the evidence issue or he seeks to precise pre “that question clude was raised and determined in the first action.” United *4 Davis, 792, (4th 1972). finding States v. 460 F.2d 796 Cir. Before burden, that a has met its the trial court is “required party . . . and determine what was decided in the earlier trial exactly ‘must be set in a frame and viewed with an inquiry practical ” Davis, to all the circumstances of the 460 F.2d eye proceedings.’ Swenson, at 796 444). Ashe v. 397 U.S. at (quoting Neither of divorce made the record parties proceed- More- ings a of the record on in the action. part appeal over, the did not file of the ore tenus hear- transcripts
345 trial court’s our review of the court. ing Consequently, with this established is limited to the facts of collateral finding the final including documents the the court in that decree Incorporated between the parties. decree of divorce was born of the mar- finding court’s that the child was the trial addition, of the custody In the decree awards riage. specifically child support. and orders that the father pay child to the mother finding in these is a rulings We hold that implicit child, obli- thereby father of the and the husband was the age make until the child reached gated payments Therefore, find issue of the husband’s pater- we that the majority. in the actually litigated proceedings. nity of jurisdictions This is consistent with the holding majority See, Heckler, v. 719 which have considered this issue. Conlon e.g., 788, v. law); Cir. Texas Anderson (5th 1983)(applying F.2d 797 251, 258, 546, Anderson, (1990); 551 407 Mass. 552 N.E.2d 241, Rucinski, 20, -, 172 431 N.W.2d Rucinski v. Mich. App. 540, Yakubec, 3d (1988); 242 In re 154 Ill. Marriage App. 544, Detert, 117, 391 (1987); 507 N.E.2d 120 In re Marriage of 707, v. 397 (Iowa 1986); Clay Clay, N.W.2d 710 Ct. App. dismissed, 571, 484 (Minn. 1986), N.W.2d 575 Ct. App. Lerman, 629, 1121 (1987); U.S. 804 Lerman v. 148 Vt. 528 A.2d Chrzanowski, 298, 305, (1987); Chrzanowski v. 325 Pa. Super. 793, 1128, W.R.C., (1984); 472 1131 v. 317 S.E.2d A.2d N.C. 112, (W. 1984); 797 v. N.W.2d 114 Va. Luedtke 303 Koopsma, Unick, 100, 105-06, (S.D. 1981); DeWeese v. 102 Cal. 3d App. McNeece, 259, (1980); 162 Cal. 39 Colo. Rptr. McNeece v. 160, 163, 767, Brownlee, 152 App. (1977); 562 P.2d Butler v. 453, _, Mont. see (1969). 451 P.2d But Spears Spears, 784 S.W.2d Ct. res (Ky. App. 1990)(applying judicata to the father’s presumed challenge paternity attempt would result). lead to an unjust
Furthermore, we hold that the issue of the husband’s paternity judgment essential to the with to the and respect custody child support therein. Code 20-107.2 provisions incorporated § provides ... a divorce . . . pertinent part: “Upon decreeing the court make such further decree as it shall deem may expedient concerning custody and of the minor children of the parties, concerning visitation As rights parents.” part of the final the court awarded child to the custody *5 346 Before the to pay support. ordered the husband
wife and of the custody decree as to court could enter a a child of the the child was child, determine that the court had to fraud, the absence it is held generally Finally, “[i]n entered and no appeal when judgment, accident or surprise, is conclusive, manifestly taken, though judgment even 27, 36, 146 v. 152 Va. Ingram, Carpenter in law or fact.” wrong however, ei argued, has not The husband (1929). S.E. 195 final decree' that the April court or on appeal ther in the trial or as a result or surprise, entered either accident of divorce was court, itself been nor has the decree on the of a fraud perpetrated is a the decree grounds. Consequently, of these invalidated valid, judgment. conclusive reasons, the trial court properly we find that
For these
collat
that the
wife met her burden of proving
concluded that the
issue of the husband’s paternity.
bar
to the
eral estoppel
applied
collat
however,
of the
does not end here. Application
Our inquiry,
where,
although
in situations
eral
bar is inappropriate
in all
to that
respects
suit is identical
matter raised in the second
facts or the
controlling
either the
decided in the first proceeding,
action. See
original
since the
changed
rules have
legal
applicable
(4th
F.2d
v.
County
Arlington,
United States
Further,
denied,
estop
collateral
Cir.),
(1982).
cert.
The record before us indicates that knowledge pro- did not have the conclusive the husband he was not the vided test results that genetic tests, however, did not disclose facts father of the child. These facts final but verified occurring merely to the entered, could facts which in existence at the time the decree was Thus, fact diligence. only have due through been discovered the sub- decree and changed between the final that he was knowledge action was the husband’s sequent paternity However, father of the child. it is clear from the entered, record that at the time the final divorce decree was husband was aware that the child was born out wedlock. Fur- ther, for more than two years had been separated before the final decree was entered and an issue custody *6 Thus, the had ample opportunity divorce the husband proceeding. during through that time to establish or his use deny paternity His failure to have tests genetic testing. genetic performed prior a collateral attack on the of the final decree the entry precludes knowledge final based on his that solely genetic tests excluded him as the father of the child.
Moreover, while the record before us is silent as to the actual in the has proceedings litigation, the husband not claimed on that he was denied fair liti- appeal opportunity” “full gate his in the Nor has he argued divorce proceeding. that the rules have since the applicable legal changed original action.
Nevertheless, the dissent maintains that this case cries out for resolution and suggests a remand of the case to the trial court for a determination as to whether the wife a fraud on the perpetrated that, court in the divorce decree. The dissent procuring argues al- though the issue has not been trial or raised either at on it appeal, in both the implicit record below and on and thus the ends of justice such an action. We require disagree.
Initially, we note that the record in modification this what, proceeding contains no evidence as to if any, representations the wife made to Slagle as to his either the mar- paternity, during riage addition, or the divorce In proceedings. record contains no evidence to the dissent’s statement that the wife knew Slagle that was not the child’s father or that she permitted trial court to make a determination as to while Slagle’s paternity he, fact, knowing Indeed, that in was not the child’s father. only evidence in the record as to the wife’s with knowledge respect to Slagle’s is an allegation made himself. In by Slagle modification, his to the petition juvenile court Slagle for support requests that blood tests be due to made performed allegations the wife that he was not the child’s father. On this rec- biological ord, believe we that it is speculative to as does the dis- presume, sent, that the wife has known that was not the always Slagle biological child’s father or that she to the perpetration acceded on court. a fraud
Furthermore, biological that had Slagle every the dissent claims in the only was his. The evidence reason to believe that the child knowledge as to the child’s Slagle’s paternity, record touching decree, otherwise, of the final the time of the entry or at child and that he the father was the wife’s statement However, clear his name. it is also the fact the child carried that wedlock, eight out of from the that the child born record evi- No marriage months to the for blood test! has made a of the record part except dence been results, after more fourteen months which tests were taken than the final decree. had disagree we with the dissent’s statement
Finally, have conclusion would fraud this our alleged be invoked may been of collateral not Principles different. Haudenschilt, Va. W. to sustain fraud. Haudenschilt 113-14, action (1946). Accordingly, S.E.2d an challenge of the divorce the wife could validity *7 against challenge asserting estop-, defend such a the collateral action, however, was not to the bar. This an action invalidate pel Rather, based divorce an to modify decree. it was action support, the in con change change on a in condition. The facts supporting dition, however, conclusively were which had been already facts determined in the final decree. The trial court not required, to the bar collateral prior determining applied whether of estoppel original judgment to decide whether the subsequent fraud, allega procured particularly as result of when of ever tions fraud were to the trial court. presented The April 1986 final of divorce in case before us has decree never been either or challenged, indepen- on in an directly appeal dent, to has 8.01-428(C). action Code If the husband pursuant § case, in this is in the invalidate it form of an action to remedy decree, the final not to modify support. reasons,
For these we find that court did not err in the trial ruling that the husband was in the subse- collaterally estopped to of his quent modify raising action child from the issue support paternity as the basis for such a modification. The divorce adjudication constituted a final of his and is not enti- he paternity, rely tled to on as a findings with to that issue respect basis relief ordered therein so as that long of from support valid, decree remains a final judgment. we affirm
Accordingly, the decision of trial court.
Affirmed. Moon, J., concurred.
Koontz, C.J., dissenting.
I I respectfully dissent from do disa- majority opinion. gree with the of the nature and majority’s interpretation scope the collateral doctrine. the record in this case is estoppel While I woefully inadequate, agree also with the conclusion majority’s has not in the or on Slagle specifically argued trial court ap- that the final peal which determined that he was the father of the child in and ordered him to child question pay was entered support, as a result of fraud on that perpetrated view, however, court. In my the issue of fraud on both implicit in the palpable proceedings below and ap- I peal. would invoke the ends Accordingly, justice exception Rule 5A:18 and remand this for a determination of the issue of whether fraud bars the application on the facts of this case.
It is undisputed that Slagle is not the
biological father
child in
We
question.
assume the trial court would not have
may
ordered him to
had that
pay
court been made aware
of that fact
of the divorce
decree. This is not a
of a husband who
case
his wife’s child
an-
promised
treat
son,
other as his
thereby agreeing to assume the child
ob-
ligation
.,
the biological father. See T. . . v. T. .
216 Va.
It is reasonable to even to presume, Slagle that had known or had reason to know that he was not the father biological to make that fact known necessary taken the steps
he would have of It is equally to the final decree. entry to the trial court the prior wife and the child’s mother Slagle’s assume that as reasonable to Moreover, Slagle’s paternity. had reason to always question has has not in before us indicates that she nothing the limited record Slagle biological is not father. known that the always I find no solace the unjust An result is in this case. patent through could have discovered Slagle that majority’s conclusions that he had he was the father and diligence biological due that through use to establish or his opportunity deny paternity ample These of the final decree. con- entry the genetic testing prior is in the record to indi- ignore nothing the fact that there clusions at that paternity had his Slagle question cate that reason Rather, with the mother the time. based his upon relationship he was he to believe that the every child had reason had the final decree. When he rea- father until after the juvenile this he filed the question paternity, petition son view, test obtained my genetic pursuant court. In the results of fraud the divorce establish a on petition clearly potential to that court. to chal- Slagle’s
Human is consistent failure experience with a hus- Generally, his until reason to do so. lenge he had paternity a to question band or father has reason biologically potential a par- he is the father of when assured his mate that is within the Contrary purview ticular child. knowledge uniquely Where, here, however, a biologically potential mother. as he father and given father is reason to is not the believe he he that is not bio- genetic testing secures the proves father, logical prior should determine whether court fraud. adjudicating procurred by erroneously case, established, is not In such a if fraud is collateral estoppel and the decree should be vacated. applicable prior case, a spe- In the that without present majority concludes allegation allegation cific of fraud Had such an estopped. made, would reach been I have no doubt the specifically majority view, is im- allegation a different conclusion. of fraud my In It I would remand this Accordingly, cries out for resolution. plicit. for a if a fraud was perpe- determination of issue and court, its decree of trated the trial should vacate support. *9 I am at a loss to Finally, understand the for the trial basis court’s refusal to vacate or reduce its order of prior child if even to the issue of estoppel applies Slagle’s paternity. The court retains the adjust award of child authority until the child reaches majority. The fact that is not the father, though even he remains the judicially adjudi- father, cated is a factor which should warrant of a consideration reduction in child support.