COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

STEVEN L. COMER 

v. Record No. 2348-95-4 MEMORANDUM OPINION*

 PER CURIAM 

PAMELA PARSELL COMER APRIL 23, 1996 

 FROM THE CIRCUIT COURT OF 

PAGE COUNTY 

Perry W. Sarver, Judge 

 (Nancy M. Reed; Reed & Reed, on brief), for 

appellant. 

 No brief for appellee. 

 Steven L. Comer (husband) appeals the circuit court's 

dismissal of his Motion to Set Aside Finding of Paternity and his 

Motion to Eliminate or Modify Child Support. On appeal, husband 

raises the following questions: (1) whether previous court orders 

established parentage pursuant to Code § 20-49.1; (2) whether the 

trial court erred in ruling that husband was estopped to 

challenge his paternity of Tyler Nelson Parsell; and (3) whether 

the trial court erred in denying husband's motions. Upon 

reviewing the record and opening brief, we conclude that this 

appeal is without merit. Accordingly, we summarily affirm the 

decision of the trial court. Rule 5A:27. 

 Husband was divorced from Pamela Parsell Comer (wife) by 

decree entered May 2, 1994. The decree noted that there was 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

proof of proper service upon husband, but husband failed "to 

appear, answer or otherwise respond to such process." There is 

no allegation that husband was not properly served or had no 

notice of the decree. The trial court found that the parties 

were married on June 16, 1990, and that "[t]here was one child 

born of these parties, to-wit: Tyler Nelson Parsell born 

February 4, 1989." Subsequently, a blood test determined that 

Tyler was not husband's biological child. Husband filed motions 

seeking to set aside the finding of paternity and to reduce or 

terminate his obligation to pay child support. The trial court 

denied husband's motions. 

 Husband argues that, under Code § 20-49.1(B), there are only 

two ways in which paternity may be established in Virginia. 

However, husband's argument is based on only a portion of the 

pertinent statute. Quoted more fully, the section states the 

following: 

 The parent and child relationship between a 

child and a man may be established by written 

statement of the father and mother made under 

oath acknowledging paternity or 

scientifically reliable genetic tests, 

including blood tests, which affirm at least 

a ninety-eight percent probability of 

paternity. Such statement or blood test 

result shall have the same legal effect as a 

judgment entered pursuant to § 20-49.8.

Code § 20-49.1(B) (emphasis added). Sworn acknowledgements or 

genetic tests are permissible means of establishing paternity, 

but are in addition to the third means, "a judgment or order 

establishing parentage." Code § 20-49.8(A). 
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 Husband began to challenge his paternity of Tyler in 1993. 

Nonetheless, in the final decree of divorce entered in 1994, the 

court found that Tyler was the child of these parties. 

Therefore, there was a judgment or order establishing parentage. 

 The trial court found that this case is controlled by Slagle 

v. Slagle, 11 Va. App. 341, 398 S.E.2d 346 (1990). In Slagle, as 

here, an unappealed divorce decree established parentage, but 

subsequent genetic testing proved that the husband was not the 

child's father. We ruled that "[t]he divorce decree constituted 

a final adjudication of . . . paternity, and [the father] is not 

entitled to rely on subsequent findings with respect to that 

issue as a basis of relief from the support ordered therein so 

long as that decree remains a valid, final judgment." Id. at 

348-49, 398 S.E.2d at 350-51. 

 Husband's reliance on Dunbar v. Hogan, 16 Va. App. 653, 432 

S.E.2d 16 (1993), is misplaced. There, the sole means to 

establish paternity was the putative father's sworn declaration. 

 There was no previous adjudication of paternity. Therefore, 

Dunbar is inapposite to the circumstances here. 

 Husband also contends that the trial court erred in ruling 

that he was collaterally estopped from denying his parentage of 

Tyler because parentage was not an issue of fact actually 

litigated and essential to the judgment. The order speaks for 

itself and establishes that the question of parentage was 

determined by the court. See Slagle, 11 Va. App. at 345, 398 
 4 

S.E.2d at 348-49. In addition, the record establishes that Tyler 

was born before the parties married, and that husband questioned 

Tyler's parentage before the decree was entered. Husband cannot 

now allege the order was entered "by accident, or surprise, or as 

a result of a fraud perpetrated on the court." Id. at 346, 398 

S.E.2d at 349. Therefore, the trial court properly ruled that 

husband was estopped from contesting paternity. 

 Similarly, for the reasons previously set forth, we find no 

error in the trial court's dismissal of husband's motion to set 

aside the finding of paternity. 

 Finally, husband argues that the trial court erred in 

dismissing his motion to reduce or terminate child support. 

 "The court may, from time to time after 

decreeing [for child support] . . . revise 

and alter such decree concerning the care, 

custody, and maintenance of the children and 

make a new decree concerning the same, as the 

circumstances of the parents and the benefit 

of the children may require." Code § 20-108. 

"In exercising this power the court may 

revise and alter its decree if a material 

change in condition and circumstances has 

occurred." Where a party has demonstrated a 

material change in circumstance, the trial 

court must determine whether that change 

justifies a modification in the support award 

by considering "the present circumstances of 

both parties and the benefit of the 

children." 

Watkinson v. Henley, 13 Va. App. 151, 156, 409 S.E.2d 470, 472-73 

(1991) (citations omitted). 

 Assuming without deciding that the trial court should have 

found that a material change in circumstances had occurred, there 
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was no evidence that Tyler's best interests would be served by 

allowing husband to reduce or terminate his support. Therefore, 

we find no reversible error on the part of the trial court in 

denying husband's motion to reduce or terminate support. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.