COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, McClanahan and Senior Judge Willis 

Argued at Chesapeake, Virginia 

RONALD McCALLUM 

 OPINION BY 

v. Record No. 0139-06-1 JUDGE D. ARTHUR KELSEY 

 NOVEMBER 7, 2006 

GILBERTO SALAZAR, JR., AND 

 KATHLEEN JOANNE SALAZAR 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick Jr., Judge 

Gary B. Allison for appellant. 

Samuel R. Brown, II (Kaufman & Canoles, P.C., on brief), 

for appellees. 

 Ronald McCallum appeals the trial court’s dismissal of his amended petition to vacate an 

adoption order. Allegedly entered without his knowledge, that order authorized the adoption of 

his child by the biological mother’s husband. In the trial court, McCallum claimed the mother 

committed extrinsic fraud during the adoption proceeding by misleading the court into believing 

McCallum could not be located and thus could be given constructive notice by publication 

service. Without ruling on the factual merits of McCallum’s claim, the trial court dismissed the 

amended petition on the ground that Code § 63.2-1216 barred the claim as untimely. We reverse 

and remand the case for further factfinding by the trial court consistent with this opinion. 

I. 

In July 1999, the trial court entered a final adoption order permitting the husband 

(Gilberto Salazar, Jr.) of the child’s mother (Kathleen Salazar) to adopt her then four-year-old 

child. The order recited that McCallum, the noncustodial, biological father of the child, received 

only constructive notice of the adoption proceeding by order of publication. The court 
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proceeded by publication notice in reliance on a report by the Department of Social Services that 

recited the mother’s representation that she did not know McCallum’s whereabouts. 

Five years later, McCallum filed a petition to vacate the final adoption order as void. In 

his petition, McCallum alleged that the child’s mother perpetrated a fraud on the court by 

deliberately misrepresenting that she did not know his whereabouts. McCallum also claimed he 

knew nothing about the adoption until October 2002. 

The Salazars filed a demurrer and a separate special plea seeking a dismissal of the 

petition under Code § 63.2-1216, which requires all such petitions to be filed within six months 

of the final adoption order. The trial court granted the demurrer but did not specifically address 

the special plea. In response, McCallum filed an amended petition that included additional 

allegations concerning his efforts at maintaining a relationship with the child prior to the 

adoption. Raising again the time bar of Code § 63.2-1216, the Salazars filed a demurrer and a 

separate special plea to the amended petition. The trial court entered an order overruling the 

second demurrer and granting leave to the Salazars to file responsive pleadings within 

twenty-one days. Once again, however, the order did not address the pending special plea. 

At trial, McCallum asked the court to find the Salazars in default for not filing an answer 

to the amended petition. After the Salazars pointed out that their special plea was still pending, 

the court denied the default request. McCallum then presented evidence in support of his claim 

that Kathleen Salazar committed extrinsic fraud that prevented him from receiving actual notice 

of the adoption proceeding. McCallum also offered evidence seeking to establish his bona fide

interest in the child as well as his prior efforts at accepting parental responsibility. 

At the close of McCallum’s case in chief, the trial court reviewed “the evidence in the 

light most favorable to the father” and found that McCallum first discovered the alleged fraud in 

October 2002. The trial court then found that “even if ⎯ and the court doesn’t find ⎯ even if 
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the mother had committed actual fraud, extrinsic or intrinsic,” McCallum filed his initial petition 

to vacate more than six months after first learning of the alleged fraud.1

 Relying on Code 

§ 63.2-1216’s statutory bar, the trial court granted the Salazars’ motion to strike and dismissed 

the amended petition. 

II. 

On appeal, McCallum raises two issues.2

 He first argues that the trial court erred in not 

holding the Salazars in default and thereafter treating as conceded all factual allegations in the 

amended petition to vacate. Second, McCallum contends the trial court’s application of Code 

§ 63.2-1216’s time bar at the motion to strike stage cannot be reconciled with F.E. v. G.F.M., 35 

Va. App. 648, 547 S.E.2d 531 (2001) (en banc). We disagree with McCallum on his first 

argument but agree with him on his second. 

 A. RESPONSIVE PLEADINGS & DEFAULTS

McCallum claims that the Salazars were in default by not filing a responsive pleading 

after the trial court overruled their demurrer. This argument overlooks the fact that their special 

plea to the amended petition was still pending at the time of trial. Under Virginia law, a special 

“plea, whether at law or in equity, is a discrete form of defensive pleading.” Nelms v. Nelms, 

236 Va. 281, 289, 374 S.E.2d 4, 9 (1988). A special plea asserts “a single state of facts or 

 

1

 Clarifying this ruling, McCallum’s counsel confirmed that the trial court had “made no 

finding as to whether there was extrinsic fraud or not” based on the evidence presented. 

2

 In his questions presented, McCallum’s appellate brief also asserts that the trial court 

erroneously sustained an objection to evidence of settlement discussions between the parties a 

few months before the ore tenus hearing in the trial court. McCallum’s argument section of his 

brief, however, includes only a single sentence mentioning this point. Rule 5A:20(e) requires an 

appellant’s brief to include, among other things, the “principles of law, the argument, and the 

authorities relating to each question presented.” “Statements unsupported by ‘argument, 

authority, or citations to the record’ do not merit appellate consideration.” Boyd v. County of 

Henrico, 42 Va. App. 495, 506 n.6, 592 S.E.2d 768, 773 n.6 (2004) (en banc) (citations omitted). 
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circumstances” that, if proven, “constitutes an absolute defense to the claim.” Id.3

 The trial 

court, therefore, correctly denied McCallum’s request for an entry of default and properly 

refused to treat the factual allegations in the amended petition as admitted. 

 B. THE SIX-MONTH BAR OF CODE § 63.2-1216

F.E. held that “nothing in Code § 63.1-237 [now Code § 63.2-1216] implies that the 

statute of limitation is to begin running on the date on which the fraud was or should have been 

discovered.” F.E., 35 Va. App. at 669, 547 S.E.2d at 541. “Rather, the statute expressly refers to 

the ‘expiration of six months from the date of entry of any final order of adoption from which no 

appeal has been taken.’” Id. (quoting Code § 63.1-237). “The General Assembly was free to 

create a discovery rule when it drafted the statute, but it did not do so.” Id. Applying the statute 

this way, F.E. reasoned, “would actually serve to rewrite the statute to impose an additional 

requirement to bar claims in a way which could not reasonably have been foreseen by those to 

whom it purportedly applies.” Id. at 669 n.7, 547 S.E.2d at 542 n.7. 

The trial court erred in holding that Code § 63.2-1216 barred claims filed more than six 

months from the discovery of the alleged fraud. This erroneous holding, therefore, did not moot 

the necessity of the trial court deciding (i) whether McCallum asserted a viable extrinsic fraud 

claim justifying a collateral attack on the adoption order, or (ii) whether the intended application 

of Code § 63.2-1216, as applied to McCallum’s fraud claim, violated his procedural due process 

rights. The first issue requires the trial court to determine if McCallum proved extrinsic fraud by 

clear and convincing evidence, see Gulfstream Bldg. Assocs. v. Britt, 239 Va. 178, 183, 387 

 

3

 See also Cooper Industries v. Melendez, 260 Va. 578, 594-95, 537 S.E.2d 580, 590 

(2000) (“plea in bar is a defensive pleading” (citation omitted)); 1 Charles E. Friend, Virginia 

Pleading & Practice § 8-1(d), at 271 (1998); Kent Sinclair & Leigh B. Middleditch, Jr., Virginia 

Civil Procedure § 9.8, at 400 (3d ed. 1998); W. Hamilton Bryson, Virginia Civil Procedure 273 

(3d ed. 1997). 
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S.E.2d 488, 491 (1990), and satisfied all other requirements for the equitable remedy he seeks, 

see generally Ryland v. Manor Care, Inc., 266 Va. 503, 508-09, 587 S.E.2d 515, 518-19 (2003).4

 

The second issue, McCallum’s as-applied due process challenge to Code § 63.2-1216, depends 

on a threshold showing that he had an “actual relationship of parental responsibility” with the 

child, not just a “mere biological relationship.” F.E., 35 Va. App. at 663, 547 S.E.2d at 538 

(quoting Lehr v. Robertson, 463 U.S. 248, 259-60 (1983)).5

 Because the record reveals no 

factual findings on these issues, we remand the case for the trial court to address them. 

III. 

The trial court correctly refused to find the Salazars in default and to treat the allegations 

in McCallum’s amended petition as conclusively admitted. The trial court, however, erred in 

dismissing McCallum’s amended petition on the ground that Code § 63.2-1216 barred claims 

filed more than six months after discovery of the alleged fraud. For these reasons, we reverse 

and remand the case for further factfinding consistent with this opinion. 

 Reversed and remanded.

 

4

 See also O’Neill v. Cole, 194 Va. 50, 57-61, 72 S.E.2d 382, 386-88 (1952) (holding that 

the doctrine of laches applies to collateral attacks alleging extrinsic fraud); accord T.S. v. L.F. (In 

re S.L.F.), 27 P.3d 583, 589 n.4 (Utah Ct. App. 2001) (“even if due process entitles Father to 

contest the adoption after a final decree was entered, it does not follow that Father’s right to 

contest the adoption is unlimited by time constraints” or is somehow immune from “equitable 

principles such as laches” (citations omitted)). 

5

 This requirement speaks not of a “potential relationship,” but an “already-established” 

parent-child relationship in which the biological parent has demonstrated his or her “full 

commitment to the responsibilities of parenthood.” F.E., 35 Va. App. at 663-64, 547 S.E.2d at 

538-39. As F.E. explains: “Our holding is expressly limited to the facts alleged in this case” 

including the fact that “the biological father had an established relationship with his child” and 

that “the nature of the father’s relationship with the child did not change until after the statute of 

limitation had run . . . .” Id. at 667 n.6, 547 S.E.2d at 540 n.6 (emphasis added).