COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Fitzpatrick 

Argued at Richmond, Virginia 

TRAVIS LLOYD GIFFORD, ETC. 

v. Record Nos. 0122-95-2 and 0123-95-2 

DAVID B. DUNKUM 

-AND- MEMORANDUM OPINION* BY 

 JUDGE LARRY G. ELDER 

DAVID B. DUNKUM FEBRUARY 13, 1996 

v. Record No. 0110-95-2 

BRENDA LEE GIFFORD 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Charles E. Powers (Edward D. Barnes; Edward D. 

Barnes & Associates, P.C., on briefs), for Brenda 

Lee Gifford and Travis Lloyd Gifford. 

 (R. Craig Evans; McCaul, Martin, Evans & Cook, 

P.C., on briefs), guardian ad litem for Travis 

Lloyd Gifford. Guardian submitting on briefs. 

 Charles O. Boyles (Gayle, Boyles, Culler & 

 Press, on briefs), for David B. Dunkum. 

 David B. Dunkum (Dunkum) and Travis Lloyd Gifford (Travis), 

by his next friend Brenda Lee Gifford (Brenda), each appeal 

various aspects of the circuit court's order finding Dunkum to be 

the natural father of Travis and ordering Dunkum to pay child 

support. 

 

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

designated for publication. 
 -2- 

 Dunkum raises five arguments on appeal: (1) the circuit 

court lacked jurisdiction to order support for a legitimate child 

when the person named in the suit as the biological father was 

someone other than the father named in the birth certificate; 

(2) Travis' appeal from the juvenile and domestic relations 

district court to the circuit court was not properly perfected, 

where the party appealing was identified as Brenda L. Gifford 

(Travis' mother); (3) the circuit court erred in allowing 

discovery in a criminal appeal from a court not of record 

pursuant to Code § 16.1-296; (4) the circuit court erred in 

ordering Dunkum to submit to a paternity test; and (5) the 

circuit court erred in finding Dunkum was the parent of Travis 

where the paternity blood tests obtained by Travis did not meet 

the requirements of Code § 20-49.3. In his separate appeal, 

Travis asserts (1) the circuit court erred in failing to award 

him attorney's fees and costs; and (2) the circuit court erred in 

failing to order retroactive child support from the date Travis 

filed his petition. 

 We hold that the circuit court erred in failing to order 

retroactive child support from the date Travis filed his 

petition. Therefore, we reverse the circuit court's decision as 

it relates to child support and order Dunkum to pay child support 

from the date Travis filed his petition on August 3, 1993. We 

affirm the circuit court's final order in all other respects. 
 -3- 

 I. 

 FACTS 

 On August 3, 1993, Travis, by his next friend Brenda, filed 

a petition in the Juvenile and Domestic Relations District Court 

of Hanover County, naming Dunkum as the biological father and 

requesting child support. The summons prepared by the juvenile 

and domestic relations district court styled the case as "Travis 

Lloyd Gifford, by his next friend, Brenda Lee Gifford v. David B. 

Dunkum," and assigned it case number A-4885. The juvenile and 

domestic relations district court dismissed Travis' petition on 

October 27, 1993. 

 Brenda Gifford filed a notice of appeal, for a de novo

trial, to the Circuit Court of Hanover County on the same day. 

The notice of appeal included the same case number as the 

juvenile and domestic relations district court assigned, but did 

not list Travis as a party. Dunkum filed a motion to dismiss in 

the circuit court, claiming the appeal was not perfected because 

Travis, not Brenda, was the necessary party to appeal from the 

juvenile and domestic relations district court. After holding a 

hearing, the circuit court denied Dunkum's motion on March 24, 

1994. 

 On August 25, 1994, Travis propounded requests for admission 

upon Dunkum. When Dunkum refused to respond to such requests, 

Travis filed a motion for partial summary judgment. Dunkum filed 

a motion to dismiss discovery, arguing discovery was 
 -4- 

inappropriate. On December 7, 1994, the parties appeared before 

the circuit court on Travis' request for partial summary judgment 

and other motions. After argument, the circuit court entered an 

order finding Dunkum to be the biological father of Travis and 

awarding Travis child support effective December 7, 1994. The 

circuit court denied Travis' request for attorney's fees and 

costs. Each party appealed to this Court. 

 II. 

CIRCUIT COURT JURISDICTION 

 Dunkum asserts that both the juvenile and domestic relations 

district court and the circuit court lacked jurisdiction to order 

support for a legitimate child when the person named in the suit 

as the biological father was someone other than the father named 

in the birth certificate. Under Virginia law, a presumption 

exists in favor of the legitimacy of a child born in wedlock. 

NPA v. WBA, 8 Va. App. 246, 380 S.E.2d 178 (1989). Dunkum 

therefore argues that because Travis' birth certificate listed 

Brenda's husband as Travis' biological father, and no evidence 

existed to the contrary, the circuit court erred in refusing to 

dismiss Travis' petition. We disagree. 

 The General Assembly did not proscribe courts' jurisdiction 

in matters involving presumptive parentage as recorded on a birth 

certificate. See, e.g., Code § 16.1-241 (generally delineating 

jurisdiction of juvenile and domestic relations district courts); 

Code § 16.1-241(Q)(specifically granting juvenile and domestic 
 -5- 

relations district courts authority to determine parentage under 

Code § 20-49.1 et seq.). Furthermore, Code § 32.1-272(B) 

expressly states, "[a] certified copy of a vital record . . . 

shall be considered for all purposes the same as the original and 

shall be prima facie evidence of the facts therein . . . ." 

(Emphasis added.) We know of no statute or case preventing a 

child from rebutting the prima facie evidence of his or her 

parentage as demonstrated in a birth certificate. See Johnson v. 

Branson, 228 Va. 65, 319 S.E.2d 735 (1984). 

 III. 

MISIDENTIFICATION OF PARTY ON APPEAL 

 At a January 25, 1994 circuit court hearing on this issue, 

Dunkum argued that the appeal to the circuit court listed 

"Brenda L. Gifford" as the party appealing, whereas the final 

order entered in the juvenile and domestic relations district 

court styled the case as "Travis Lloyd Gifford, by his next 

friend, Brenda Lee Gifford." Dunkum contended, and contends on 

appeal, that because the appeal was not taken in Travis' name it 

was not an appeal by him as a necessary party, and therefore, the 

circuit court lacked jurisdiction over the case. We disagree 

with Dunkum. 

 After argument on the issue, the circuit court denied 

Dunkum's motion to dismiss, holding that because the case number 

on the notice of appeal matched the case number assigned in the 

juvenile and domestic relations district court, the parties and 
 -6- 

the court had sufficient notice of the case that was being 

appealed. The circuit court did not err in its ruling. 

 In so holding, we follow the logic of Carlton v. Paxton, 14 

Va. App. 105, 415 S.E.2d 600, aff'd en banc, 15 Va. App. 265, 422 

S.E.2d 423 (1992). In Carlton, the appellant filed a timely 

notice of appeal but incorrectly identified the order being 

appealed. The appellee argued that the appeal should have been 

dismissed because of this error. We held that the appeal did not 

fail on procedural grounds. Although the timeliness provision of 

Rule 5A:69(a) is mandatory, we held that "[n]either the Rules nor 

prior case decisions mandate dismissal of an appeal when an error 

of reference and not timely filing is at issue." Id. at 109-110, 

415 S.E.2d at 602. This rule is designed to protect the 

appellee, not to penalize the appellant. Id. at 110, 415 S.E.2d 

at 602 (citing Avery v. County School Bd., 192 Va. 329, 333, 64 

S.E.2d 767, 770 (1951)). Following this reasoning, we hold in 

this case that the trial court did not err in refusing to dismiss 

the appeal. 

 IV. 

DISCOVERY IN CIRCUIT COURT PROCEEDINGS 

 Dunkum asserts discovery is not available where a case is 

appealed pursuant to Code § 16.1-296 from a juvenile and domestic 

relations district court to a circuit court. Dunkum argues that 

because the case involves a criminal matter, not a civil matter, 

discovery was inappropriate. We disagree. 
 -7- 

 Rules 4:0 and 4:1 provide that parties involved in actions 

at law or suits in equity may obtain discovery by requests for 

admission, as Travis did in this case. A petition for child 

support is a civil action, Scheer v. Isaacs, 10 Va. App. 338, 

340, 392 S.E.2d 201, 202 (1990), and a proceeding to determine 

parentage under Title 20, Chapter 3.1 is a civil action. Code 

§ 20-49.7. See Code § 16.1-296(F). Thus, the circuit court 

proceedings are to conform to civil equity practice. 

 Additionally, "[t]he case was treated as a civil proceeding 

in the juvenile and domestic relations court and the appeal to 

the circuit court was, therefore, civil in nature." Id. at 

340-41, 392 S.E.2d at 202 (citing Walthall v. Commonwealth, 3 Va. 

App. 674, 680, 353 S.E.2d 169, 172 (1987)). Finally, Dunkum's 

counsel specifically conceded at the circuit court's August 12, 

1994 hearing that the case was "to be tried as a chancery case." 

 Dunkum did not question the use of discovery in a civil de

novo trial in the circuit court. The only question raised 

regarding this issue was the propriety of discovery in a criminal 

appeal. Consequently, we assume, without deciding, that the 

rules applicable to civil cases initiated in circuit court apply 

in this case. When Dunkum did not answer Travis' request for 

admission, the facts set forth in the request were deemed 

admitted. Rule 4:11(a)(stating a party admits matters if he does 

not respond within 21 days to requests for admission); Metro 

Mach. Corp. v. Mizenko, 244 Va. 78, 82, 419 S.E.2d 632, 634 
 -8- 

(1992). One request for admission specifically asked Dunkum 

whether he was "the biological father of Travis Lloyd Gifford." 

 Another request asked Dunkum if he signed an affidavit on May 

27, 1992, in which he admitted paternity of Travis. Because 

Dunkum never answered these questions, he is deemed to have 

admitted paternity. 

 Because Dunkum admitted his paternity in the circuit court 

proceedings, we need not decide two separate issues, raised by 

Dunkum, namely: (1) the circuit court erred in ordering Dunkum 

to submit to a paternity test; and (2) the circuit court erred in 

finding Dunkum was Travis' father where the paternity blood tests 

obtained by Travis did not meet the requirements of Code 

§ 20-49.3. 

 V. 

 ATTORNEY'S FEES AND COSTS AND RETROACTIVE CHILD SUPPORT 

 First, Travis argues the trial court abused its discretion 

in refusing to award Travis reasonable attorney's fees and costs. 

 We disagree. An award of attorney's fees is a matter submitted 

to the sound discretion of the trial court and is reviewable on 

appeal only for an abuse of discretion. Ingram v. Ingram, 217 

Va. 27, 29, 225 S.E.2d 362, 364 (1976). The key to a proper 

award of attorney's fees is reasonableness and must be made only 

after examining all of the circumstances and equities. McGinnis 

v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). 

Travis did not show that the circuit court abused its discretion. 
 -9- 

 The circuit court made no finding Dunkum abused the discovery 

process, it never sanctioned him for abuse of any type, and 

Travis fails to concretely allege how Dunkum used dilatory 

tactics in prolonging the course of the litigation. See Alphin 

v. Alphin, 15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992). 

 Second, Travis asserts the circuit court erred in failing to 

make its child support award retroactive to the date the petition 

was filed, instead of making it effective on the date of its 

final order. "Code § 20-107.2(2) vests discretion in the trial 

court in awarding child support and such awards will not be 

reversed on appeal unless plainly wrong or unsupported by the 

evidence." Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 

(1986)(citation omitted). Despite the circuit court's broad 

discretion in this area, we hold that the circuit court's ruling 

on child support was plainly wrong. See Hur v. Virginia Dept. of 

Social Svcs. ex rel. Klopp, 13 Va. App. 54, 62, 409 S.E.2d 454, 

459 (1991). In announcing its ruling, the circuit court held 

that child support payments "are to start from today[,] and 

[Travis] will not get any prior support because the Court feels 

that we were in this position because of [Brenda's] position she 

took and changed from the date of birth until we proved 

otherwise." The circuit court abused its discretion because its 

ruling penalized Travis, the beneficiary of the child support, 

for actions taken not by Travis, but by Travis's mother, Brenda. 

 We therefore reverse this ruling of the circuit court's order 
 -10- 

and render judgment upon the merits, ordering retroactive child 

support in the amount awarded by the court from August 3, 1993. 

See Code § 8.01-681. 

 For the foregoing reasons, we affirm in part and reverse in 

part the circuit court's order, and we remand the case for the 

circuit court to enter an order of support in accordance with the 

foregoing. 

 Record No. 0110-95-2 affirmed. 

 Record Nos. 0122-95-2, 0123-95-2 reversed and remanded.