Opinion
Record No. 1714-92-2
August 24, 1993
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY HERBERT C. GILL, JR., JUDGE.
Michael C. Allen (Hairfield, Morton, Allen Rockwell, on brief), for appellant.
(Frank A. Porter for appellee Sarah J. Rose).
No brief or argument for appellee M.R.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Michael N. Rose (appellant) appeals from an order of the Circuit Court of Chesterfield County denying his request to modify or set aside that portion of his final decree of divorce that ordered him to pay child support for M.R., a child born during the marriage but not appellant's biological child. Finding no error, we affirm.
As the parties are familiar with the facts of this case, we restate only those facts necessary to amplify our ruling. Appellant and Sarah J. Rose (wife) were divorced on November 16, 1990. Prior to the final hearing, the parties reached an agreement resolving all property, child support and visitation matters. The terms of the agreement were outlined during the questioning of the parties at their pre-trial depositions. As recited during the appellant's deposition, the agreement provides, inter alia, that each party waives alimony and equitable distribution; each party will keep the property in his or her possession; and further:
[appellant] will acknowledge the legitimacy and the legal responsibility for [M.R.] . . . and that [M.R.]'s name will be legally changed . . . and [appellant] will pay [wife] $500.00 per month support for [M.R.]. . . . In addition to that, in the event that it becomes necessary, [wife] and [appellant] will agree to go through an adoption proceeding for [M.R.], in the event that the Court rules that it cannot be done through a final decree and through this divorce proceeding.
Wife acknowledged in her deposition that these were the terms of the agreement. This agreement was never reduced to a formal separate writing nor was it incorporated into the final divorce decree. The final decree recited "that there have been five children of the marriage," including "one infant child born during the marriage, namely [M.R.]." The decree further recited that "custody of the infant child [M.R.] of the parties is awarded to [wife]."
In February 1992, appellant was found in contempt for failure to pay child support for M.R. As a defense, appellant asserted that the final decree should be vacated for lack of jurisdiction because the child was not his biological or adopted child. A separate bill of complaint to modify the final decree also was filed and both actions were consolidated.
Appellant concedes that at the time of the entry of the final decree he knew he was not the biological father of M.R. and that he agreed to pay support for the child even though he knew he had no legal obligation to do so. Appellant was represented by counsel in the proceeding and no exception was noted to any part of the final decree of divorce.
Appellant contends that the trial court was without jurisdiction to order him to pay child support for M.R. and, even if jurisdiction was proper, insufficient evidence was presented to prove that he contracted to provide for the child's support. He contends that any such agreement was conditioned upon his formally adopting M.R., with the costs of such adoption paid by wife. We find no merit in these arguments.
The trial judge correctly found that appellant was collaterally estopped from raising this issue.
The doctrine of res judicata or collateral estoppel "proceeds upon the principle that one person shall not the second time litigate, with the same person . . ., precisely the same question, particular controversy, or issue, which has been necessarily tried and finally determined, upon the merits, by a court of competent jurisdiction, in a judgment in personam in a former suit."
Faison v. Hudson, 243 Va. 413, 418-19, 417 S.E.2d 302, 304 (1992) (citations omitted). Further, "[a] recital of proceedings in a [decree] is an 'absolute verity and it is not subject to collateral attack.' Where [appellant] does not object to the accuracy of [the decree] within 21 days after its entry, [we] 'presume that the [decree] . . . accurately reflects what transpired.'" Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 399 (1986) (citations omitted).
The issue of child support was decided and set forth in the parties' final decree of divorce. The decree recited and finally determined that M.R. was one of the "five children of the marriage." Appellant was ordered to pay $500 per month for child support, was represented by counsel at the time, and his counsel endorsed the final decree as "seen and agreed to." "[T]he issue of [the minor children born of the marriage] was essential to the judgment with respect to the custody and child support provisions incorporated therein." Slagle v. Slagle, 11 Va. App. 341, 345, 398 S.E.2d 346, 349 (1990). Accordingly, we hold that the issues of the status of the child and child support were actually litigated in the prior divorce proceedings. See id. at 345, 398 S.E.2d at 348.
The trial judge reviewed the depositions of the prior divorce proceedings and testimony offered ore tenus by appellant as the basis for his claim that his agreement to pay support was conditioned upon the immediate adoption of M.R. The trial judge found that appellant knowingly and intentionally entered into an express agreement with his wife to support M.R. Moreover, both parties were represented by counsel who endorsed the decree that recited that M.R. was one of the five children of the marriage. "[I]t is a fundamental principle of equity jurisprudence that a litigant who files an independent action in equity to set aside a judgment must be free of fault or neglect." Charles v. Precision Tune, Inc., 243 Va. 313, 318, 414 S.E.2d 831, 833 (1992).
This case is similar to the challenge in Slagle, wherein we held:
[I]t is generally held that "[i]n the absence of fraud, accident or surprise, a judgment, when entered and no appeal taken, is conclusive, even though the judgment is manifestly wrong in law or fact." The husband has not argued, however, either in the trial court or on appeal that the . . . final decree of divorce was entered either by accident or surprise, or as a result of a fraud perpetrated on the court, nor has the decree itself been invalidated on any of these grounds. Consequently, the decree is a valid, conclusive judgment.
Slagle, 11 Va. App. at 346, 398 S.E.2d at 349. Accordingly, we find no error in the trial court's refusal to modify the prior divorce decree.
For the reasons set forth above, the judgment of the trial court is affirmed.
Affirmed.