Opinion
Record No. 2030-92-2
June 29, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE JAY T. SWETT, JUDGE.
(Jeffrey Alan Brown, pro se, on brief).
(Annie Lee Jacobs; Parker, McElwain and Jacobs, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jeffrey Alan Brown appeals from an order of the circuit court declaring him to be the father of Jessica Leigh Sinkovits, determining the amount of his support obligation to her, and ordering that he pay a monthly sum on the support arrearages that have accumulated. In a prior appeal, this Court held that the trial judge could not condition Brown's right to a DNA test on partial payment of his support arrearages. Brown v. Sinkovits, Record No. 0590-91-2 (Va.Ct.App. May 6, 1992). On remand, the trial judge ordered that the testing be done in Charlottesville on a certain date and at a certain location, and ordered that Brown be responsible for its costs. Although Valerie Ann Sinkovits, the child's mother, and Jessica appeared for the test, Brown did not appear. The court entered an order declaring Brown's paternity, and ordering him to pay $400 per month child support and $50 per month on the child support arrearages. The judge found application of the presumptive amount under Code § 20-108.2 to be unjust and inappropriate upon consideration of the factors set forth in Code § 20-108.1, in particular Code § 20-108.1(3), because Brown is voluntarily unemployed.
On appeal, Brown, proceeding pro se, raises the following arguments:
I. The prior ruling of this Court suggested that without DNA testing, the court's paternity determination, based on other scientific evidence, would be inconclusive;
II. The preconditions imposed by the trial judge as to time, place and payment for the DNA test were an abuse of discretion;
III. The trial court's consistent rulings against Brown constituted an abuse of discretion;
IV. The trial court should have required proof of paternity beyond a reasonable doubt rather than by clear and convincing evidence;
V. The trial court did not have authority to award attorney's fees in a paternity action;
VI. The trial court erred in refusing to admit Valerie Sinkovits' medical records;
VII. The trial court erred in failing to inform Brown of his right to trial by jury;
VIII. The trial court erred in referring to the proceedings in the juvenile and domestic relations district court; and
IX. The trial court erred in increasing the award entered by the juvenile and domestic relations district court.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
I.
Brown misinterprets our prior ruling. We did not rule that a DNA test was necessary to establish paternity, only that the trial judge's order requiring payment of child support arrearages as a pre-condition to ordering DNA testing was improper. We stated: "Because we find that the refusal to enter an order for DNA testing constitutes an abuse of discretion in this case, we do not address Brown's other assignments of error." Brown v. Sinkovits, Record No. 0590-91-2 (Va.Ct.App. May 6, 1992). On remand, Brown made no effort to schedule a DNA test. Upon Sinkovits' motion, the judge set a testing date and location. Brown then moved, by counsel, for permission to have his blood drawn in Florida; the trial judge denied the motion and notified Brown that his failure to appear at the scheduled time and place would be deemed a waiver of his request for DNA testing. Brown failed to appear at the scheduled testing. The judge entered an order finding Brown to be the child's father, relying on the earlier HLA blood test results which showed a 99.64% probability that Brown is the father of the child.
Contrary to Brown's assertion, the 1992 revisions of Code §§ 20-49.1 and 20-49.3 did not replace the HLA blood test with DNA testing. Rather, the Code allows for the results of both types of tests to be used. As to Brown's assertions concerning the trial judge's exclusion of evidence, the record shows that Brown's counsel made no attempt to introduce such evidence. Likewise there is no indication that Brown's counsel requested a jury trial prior to the hearing on January 29, 1991.See generally Code § 8.01-336.
II.
Code § 20-49.1(B) provides, in part, that "[t]he court shall require the person requesting such genetic test, including a blood test, to pay the cost." Therefore, the judge's order requiring Brown to be responsible for the costs of testing does not constitute an abuse of discretion. Similarly, the fact that the judge set a date, time and place for testing does not constitute an abuse of discretion, particularly considering Brown's failure to go forward with the testing upon our remand.
III.
"On appeal, we review the evidence in the light most favorable to the . . . prevailing party. Our function is not to substitute our judgment for that of the trial judge, but to determine if the record contains sufficient credible evidence in support of the judgment from which the appeal is taken." Ward v. Commonwealth, 13 Va. App. 144, 148, 408 S.E.2d 921, 923 (1991). The trial court has discretion to determine issues concerning the care, custody and support of minor children.Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986). In this case, although the trial judge ruled against Brown on several issues detailed in his brief, we find no abuse of discretion in any of these rulings.
IV.
Brown argues that the standard of proof in this case should have been beyond a reasonable doubt rather than the clear and convincing evidence standard imposed by the trial judge. Code § 20-49.4 sets forth the applicable standard of proof to be clear and convincing. Both parties admit having had sexual relations around the time of conception. The HLA blood grouping test results found a 99.64% probability of paternity, exceeding the 98% standard set forth in Code § 20-49.1(B). Therefore, the trial judge did not err in finding that the proper standard of proof had been met.
V.
Brown argues that the trial judge did not have authority to award attorney's fees in this action. The circuit judge heard this case as a de novo appeal from the juvenile and domestic relations district court. Code § 16.1-278.19 provides: "In any matter properly before the [juvenile and domestic relations district] court, the court may award attorney's fees and costs on behalf of any party as the court deems appropriate based on the relative financial ability of the parties." Under Code § 16.1-296, on appeal from a juvenile and domestic relations district court to a circuit court, "the circuit court in the disposition of such cases shall have all the powers and authority granted by the chapter to the juvenile and domestic relation district court." Therefore, the trial judge acted within his authority in awarding attorney's fees.
VI.
Brown did not prepare a proper appendix for this appeal. Our review of the record contains no indication that Brown offered into evidence Sinkovits' medical records during the hearing on January 29, 1991. Likewise, there is no indication that Brown's counsel tried to introduce evidence concerning Sinkovits' sexual contact with other men during the time of possible conception, other than to ask her if she had had sexual relations with two other men. Sinkovits answered that she had not. Therefore, the argument that the trial judge erred in refusing to admit Valerie Sinkovits' medical records was not properly preserved for appeal. Rule 5A:18.
VII.
As noted in Part I, Brown was represented by counsel at the January 29, 1991, hearing. Counsel made no request for trial by jury. We need not decide whether Brown would have been entitled to a jury had he requested one. See Code § 8.01-336. We will not consider an issue raised for the first time on appeal. Rule 5A:18.
VIII. and IX.
Brown alternatively contends that the trial judge improperly referred to and considered the juvenile and domestic relations court proceedings, and that the trial judge on other occasions did not follow the rulings of the juvenile and domestic relations district court in setting the support award. The circuit judge stated, "this is a de novo proceeding. Why is there any reference to that [referring to the juvenile and domestic district court action]?" Although there was discussion among counsel and the trial judge as to the effect of the district court's order, the circuit judge did not consider the juvenile and domestic relations judge's findings of fact or conclusions of law in making his rulings. The circuit judge did comment as follows on Brown's disregard of the district court's orders: "It disturbs me that in the course of the adjudication this summer that he was facing an order based on what his then current earnings were, and in the face of that order simply chose to leave the state, . . . abandon his employment in the face of his responsibilities." These remarks were a comment upon Brown's disobedience to applicable orders. Both counsel agreed that the circuit court judge was not bound by the decision of the juvenile and domestic relations judge. The record does not show that the circuit judge improperly considered the juvenile and domestic relations court proceedings.
For the reasons stated, we affirm the circuit court's decision.
Affirmed.