COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank Argued at Salem, Virginia

RONNIE EUGENE TUCKER OPINION BY v. Record No. 1375-03-3 JUDGERUDOLPH BUMGARDNER, III DECEMBER 23, 2003 DONNA S. WIMER AND COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel . DONNA S. WIMER

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON Humes J. Franklin, Jr., Judge Peter J. Judah for appellant. Steven P. Roadcap, Special Counsel (Jerry W. Kilgore, Attorney General; David E. Johnson, Deputy Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Special Counsel; Alice G. Burlinson, Office of the Special Counsel; on brief), for appellee Commonwealth of Virginia Department of Social Services, Division of Child Support Enforcement, ex rel . Donna S. Wimer. No brief or argument for appellee Donna S. Wimer.
The Division of Child Support Enforcement s ought to enforce an order for child support of J.T.W. based on an earlier de cision that Ronnie Eugene Tucker was the natural father. Tucker contended the paternity determination was void because the trial court had not appointed a committee for him pursuant to Code § 53.1-223. The trial court found that he was not entitled to a committee because he was not incarcerated for a felony conviction and enforced the support order. We affirm the trial court.- 2 - In 1987, the Bath County Circuit Court convict ed Tucker of breaking and entering and petit larceny. It imposed a suspended sentence and placed him on probation. On January 11, 1989, his probation officer issued a PB-15 for violating probation when Tucker received a new felony charge in the City of Staunton. He al so received new felony charges in Bath County. On March 15, 1989, while Tucker was in jail aw aiting trial on the new felony charges and a hearing on his probation violation, the Staunton Ju venile and Domestic Relations District Court heard a paternity petition. Tucker appeared at the hearing, made no request for a committee, and conceded paternity. The district court entered the paternity order. After the paternity hearing, Tucker was convicted of the City of Staunton fel ony charge. Later, he wa s convicted of the Bath County felonies and hi s probation was revoked. The district court did not award support when it decreed paternity because Tucker had no income while incarcerated. Support was ordere d April 27, 1990. Ten years later, the Highland County Juvenile and Domestic Relations District Court found Tucker in arrears in the amount of $37,086.60. When DCSE sought to enforce the arrear age, Tucker filed a petition to have the 1989 paternity order vacated. 1 He asserted he “was incarcerated at the time of that Order and the Court neglected to appoint him a Guardian Ad Litem .” The parties presented the circ uit court with a joint stipul ation that Tucker had been convicted of a felony and was inca rcerated at the time of the pa ternity suit. The circuit court ruled the paternity order was void based on the stipulation. Before entering an order carrying out

1 Tucker also requested a new paternity test. The circuit court ordered the tests, which conclusively proved he was the father.- 3 - its initial ruling and upon a motion sugge sting the stipulation was incorrect, 2 the trial court reconsidered its ruling. After hearing evidence, the tr ial court issued a second opin ion that found Tucker “was in jail awaiting a final determination on his felony ch arges and parole viola tion.” It concluded he did not satisfy the requirements for the appo intment of a committee, Code § 53.1-223. “[T]he triggering event would have been Mr. Tucker’s ac tual felony conviction or reinstatement of his suspended sentence,” neither of which occurred unt il several months after the paternity suit. At common law, a prisoner confined to the penitentiary was allowed to be sued even though he could not appear in court. Code § 53-307, the predecesso r of Code § 53.1-223, was enacted to protect the property rights of pr isoners by appointing a committee in his place. Almond v. Kent, 459 F.2d 200, 201 (4th Cir. 1972). In 1989, Code § 53.1-223 provided, “No action or suit on any claim or demand shall be instituted against a pr isoner after judgment of conviction and while he is incarcerated, ex cept through his committee.” The conjunctive “and” makes clear the petitioner must both be convicted of a felony and incarcerated on that conviction. See Varga v. Commonwealth , 260 Va. 547, 551-52, 536 S.E.2d 711, 714 (2000) (“and” is conjunctive and requires both elements to be satisfied). Code § 53.1-221 establishes the criterion fo r appointment of committees: “When a person is convicted of a felony and sentenced to confinement in a st ate correctional fa cility . . . .” A court’s authority to appoint and a committee’ s powers to act are condi tioned “upon the fact of conviction and sentence to confinement to the pe nitentiary . . . .” Me rchant v. Shry, 116 Va. 437, 445, 82 S.E. 106, 109 (1914) (based on Code § 4115). See also Burks Pleading and Practice § 69, at 136 (4th ed. 1952) (“[I]n Virginia, when a person is convicted of a felony and sentenced

2 Tucker contends DCSE should be bound by its st ipulation. However, the trial court had not entered its final order and was free to reconsider its de cision and the basis upon which it rested. Bennett v. Commonwealth, 33 Va. App. 335, 344, 533 S.E.2d 22, 27 (2000) ( en banc ).- 4 - to confinement in the penitentiary or to the State convict road force for one year or more, his estate . . . is . . . committed by the court to a . . . committee.”); 14B Michie’s Jurisprudence, Prisons and Prisoners § 9, at 515 (2000) (court is authorized to appoint committee for person “convicted of a felony and sentenced to the penite ntiary or to the state convict force, for one year, or more”). At the time of the paternity hearing, Tuck er was not serving the sentence imposed in 1987. He was being held on a warrant charging vi olation of probation. The sentencing court had not revoked the previously suspended sentence. It had not even conducted a hearing to determine if Tucker had violated the terms of his probation. At the time of the paternity suit, Tucker was awaiting trial on the subsequent fe lony charges in the Cityof Staunton and Bath County. Neither circuit court ha d tried, convicted, or sentencedhim on those charges. The paternity petition was file d and the order entered before Tuck er was incarcerated for any felony. The trial court correctly found Tucker was not entitled to a committee. Accordingly, we affirm. Affirmed.