COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Agee and Senior Judge Coleman 

Argued at Salem, Virginia 

STEVEN R. LUCAS 

 MEMORANDUM OPINION* BY 

v. Record No. 1744-00-3 JUDGE ROBERT P. FRANK 

 JULY 24, 2001 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

ex rel. TERESA BECKS 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

John J. McGrath, Jr., Judge 

 Sherwin John Jacobs for appellant. 

 Steven P. Roadcap, Special Counsel (Alice G. 

Burlinson, Office of the Special Counsel; 

Mark L. Earley, Attorney General; Ashley L. 

Taylor, Jr., Deputy Attorney General; 

Robert B. Cousins, Senior Assistant Attorney 

General; Craig M. Burshem, Regional Special 

Counsel, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Steven R. Lucas (appellant) appeals the trial court's 

dismissal of his petition to reduce child support. On appeal, he 

contends the trial court erred in: 1) failing to consider the 

lack of adequate notice and service upon him for the June 29, 1993 

and July 6, 1993 blood tests and the September 13, 1993 show cause 

hearing, 2) finding the evidence was sufficient at the September 

13, 1993 show cause hearing to establish paternity, 3) failing to 
permit him to avail himself of an independent action to set aside 

the September 13, 1993 order and finding no extrinsic fraud by 

Teresa Becks, 4) failing to find that the current body of 

jurisprudence with respect to the determination of paternity 

requires revision because error or mistake can create a fiction 

that deprives an individual of his liberty and property, and 5) 

failing to find that the paternity test establishing he is not the 

father of the child was a material change in circumstance that 

warrants a termination of child support. Finding no error, we 

affirm the trial court's dismissal of the petition to reduce child 

support. 

I. BACKGROUND 

 Teresa Becks (mother) gave birth to Brian Lee Becks on 

April 25, 1992. In late 1992, the Division of Child Support 

Enforcement (Division) received an application from mother for 

child support services. Mother indicated on the Division's 

application that she thought a man named Jackson was the father 

of her child. The Division filed a paternity petition against 

Jackson. As a result of testing, Jackson was excluded as the 

father. The Division's petition was dismissed. Mother then 

named appellant as the putative father of her child, testifying 

she had engaged in sexual relations with him during the time of 

conception. 

 In January 1993, the Division filed a new paternity 

petition in the Rockingham County Juvenile and Domestic 

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Relations District Court (JDR court) against appellant. On 

March 23, 1993, appellant, an inmate, was personally served with 

the petition at Powhatan Correctional Facility. Because 

appellant was incarcerated, the JDR court appointed attorney 

John Q. Adams to represent him. After corresponding with 

appellant, Adams filed an answer on April 30, 1993, denying 

paternity and requesting genetic testing. 

 On June 21, 1993, appellant was released from 

incarceration. On the same day, the JDR court heard the 

paternity matter, at which time, mother, a Division 

representative, and Adams, as appellant's counsel, appeared. 

Upon Adams' request, the JDR court ordered the parties and the 

child to submit to genetic tests and scheduled blood to be taken 

on June 29, 1993 at 10:00 a.m. The case was continued until 

September 13, 1993 at 10:00 a.m. for the paternity hearing. 

 Adams wrote to appellant at Route 2, Box 129, Elkton, 

Virginia 228271 regarding the scheduling of the paternity test. 

Adams notified appellant of the time and place of the test, but 

appellant never responded. Adams also notified appellant of the 

September 13, 1993 hearing date and requested appellant contact 

him immediately. Appellant failed to appear on June 29, 1993 to 

have his blood drawn. 

 1

 Appellant claimed his correct address is Route 2, Box 

129-B, Elkton, Virginia. 

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 At a hearing before the trial court in 1998, Adams 

testified he sent a copy of the JDR court's order that was 

entered on June 21, 1993 to appellant. Adams further testified, 

"I tried and tried to reach him and he just ignored me." Other 

than the initial letter from appellant requesting a blood test, 

appellant never communicated with his attorney until sometime in 

1998. 

 Because appellant failed to appear to have his blood drawn 

on June 29, 1993, the Division rescheduled the draw for July 6, 

1993. The Division mailed a notice of rescheduling to Route 2, 

Box 129, Elkton, Virginia, a home address verified by the post 

office, advising appellant of the rescheduled blood draw. Adams 

also sent a letter informing appellant of the rescheduled date. 

Appellant again failed to appear for testing. As a result, the 

Division filed a motion to show cause, which was served on 

appellant by posting at Route 2, Box 129, Elkton, Virginia. The 

motion alleged that appellant failed to submit to the 

court-ordered blood test. The motion to show cause was docketed 

for hearing on September 13, 1993, the same date as the 

paternity hearing. 

 On September 13, 1993, the Division's representative, 

mother, and appellant's attorney appeared before the JDR court. 

Once again, appellant did not appear. 

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 The JDR court proceeded to hear evidence and entered an 

order finding appellant to be the father of the child. The JDR 

court also dismissed the Division's show cause petition. 

 On September 23, 1993, appellant wrote to the Division 

identifying his address as Route 2, Box 129-B. He denied 

paternity and indicated difficulty with transportation. 

Appellant indicated he still wanted to take the blood test. He 

asked if he could take the test in Harrisonburg. 

 The Division replied that the JDR court had adjudicated 

paternity and requested that appellant complete a financial 

statement for establishment of a support order. On October 13, 

1993, the Division entered an administrative support order 

obligating appellant to pay child support in the amount of $65 

per month. Neither the paternity order nor the administrative 

support order was appealed. 

 In mid 1997, the Division initiated a show cause proceeding 

against appellant for his failure to pay support in compliance 

with the terms of the October 13, 1993 administrative support 

order. On July 28, 1997, the JDR court held appellant in civil 

contempt and sentenced him to jail. Appellant then wrote to the 

JDR court judge on August 6, 1997 and August 11, 1997, denying 

his paternity of the child and requesting a genetic test. On 

August 13, 1997, the JDR court responded to appellant's letter. 

The court advised him that he had twice failed to appear to have 

his blood drawn, an order was entered on September 13, 1993 that 

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adjudicated him the child's father, and the order was a final 

order not subject to change. 

 In early 1998, appellant retained new counsel and filed a 

petition in the JDR court seeking again to adjudicate paternity 

of the child. Because the child's name was misspelled, the JDR 

court established a new court file. Without notice to the 

Division, and without the Division's involvement, the JDR court 

entered an order requiring mother, appellant and the child to 

submit to genetic testing. The test results excluded appellant 

as the child's biological father. Upon receipt of the paternity 

test results, the JDR court became aware of the misspelled name 

and the prior paternity proceeding. The JDR court entered an 

order on June 8, 1998, dismissing appellant's paternity 

petition, finding the court had "no jurisdiction over parentage" 

because it was previously adjudicated. From this order, 

appellant appealed to the Rockingham County Circuit Court. 

 The circuit court, after two ore tenus hearings, dismissed 

the paternity petition, holding that a collateral attack was not 

appropriate to challenge the sufficiency of the evidence. The 

trial court opined that appellant was free to pursue a challenge 

to the original order on the basis of fraud under Code 

§ 8.01-428. Appellant did not appeal the circuit court's 

decision. 

 Appellant then filed an action in the circuit court to "set 

aside a final order," alleging the September 13, 1993 JDR 

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court's paternity order was obtained by fraudulent 

representations by mother. Appellant also filed a motion in the 

JDR court on May 24, 1999, which sought to modify his obligation 

to pay child support on the basis that a change in circumstances 

occurred as a result of the blood test that excluded appellant 

as the child's father. The JDR court denied appellant's motion 

to modify on October 25, 1999, and appellant appealed that order 

to the circuit court. 

 The independent action and the motion to modify were 

consolidated for hearing in the circuit court. The parties also 

agreed the evidence was the same in the case at bar as in the 

previous juvenile court petitions. Therefore, there was an 

agreement that the transcripts from the 1998 paternity action 

also would be included as evidence in this case. 

 The circuit court denied the petition to set aside the 

paternity judgment and the motion to modify. In its opinion and 

order, the circuit court found that mother "either knowingly or 

unknowingly perpetrated a fraud upon the lower court in 

providing testimony as to the identity of the father of her 

child." The court further characterized the fraud as 

"intrinsic." However, the circuit court found that appellant 

did not have "clean hands," stating: 

 In the case at hand, it cannot be said 

that the defendant, Lucas, has entered this 

suit with clean hands. In fact, the fault 

for the decision in the lower court lies 

with Lucas. Twice, he was scheduled for DNA 

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testing, and twice he failed to show up. He 

was issued a show cause for this failure to 

show up, and he failed to attend court for 

the show cause and the hearing to determine 

paternity. Had Lucas fulfilled his 

obligation and shown up for any one of these 

three required appointments, he would not be 

in the predicament he is in now. It was 

only after he was imprisoned for failure to 

pay his child support obligation that he 

finally took action. His attorney was 

present at the paternity hearing and it was 

at this stage that [mother's] perjury should 

have been exposed. Furthermore, following 

the determination of paternity by the J & DR 

Court, Lucas had an opportunity to appeal 

the case. He failed to do so, and the 

decision became final. It is because of 

Lucas' inaction and negligence that the case 

is now at this stage. Based on this, he 

cannot now collaterally attack the decision 

of the lower court. 

 The circuit court also found that appellant had not shown 

any change in monetary circumstances, thereby dismissing the 

motion to amend. The court ruled that the blood test excluding 

appellant as the father was not a change of circumstances. 

II. ANALYSIS 

 Initially, appellant contends he was not given adequate 

notice of the June 29, 1993 and July 6, 1993 blood draws and the 

September 13, 1993 show cause hearing. Appellant argues that 

the Division mailed notices of the blood draws to Route 2, Box 

129, Elkton, Virginia, not his correct address, Route 2, Box 

129-B, Elkton, Virginia and that the show cause notice was 

posted at the Box 129 address, rather than Box 129-B. 

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 Assuming, without deciding all the notices went to the 

wrong address, such error is of no moment. Appellant was 

personally served with the original paternity petition while he 

was incarcerated. Appellant's court-appointed counsel filed an 

answer on his behalf. Through counsel, appellant requested a 

blood test. "'Any action on the part of defendant, except to 

object to the jurisdiction, which recognizes the case as in 

court, will amount to a general appearance.'" Maryland Casualty 

Co. v. The Clintwood Bank, Inc., 155 Va. 181, 186, 154 S.E. 492, 

494 (1930) (citation omitted). Thus, appellant entered a 

general appearance in the paternity proceeding. 

 Once a party has made a general appearance through counsel, 

service on counsel is service on the party. Code § 8.01-314. 

 Further, appellant was charged with knowledge of the 

hearing dates. See Hunter v. Commonwealth, 15 Va. App. 717, 

722, 427 S.E.2d 197, 201 (1993) ("The attorney-client 

relationship presumes that attorney and client, as servant and 

master, will communicate about all important stages of the 

client's upcoming trial. Notice to [the defendant's] attorney 

of record of the trial date is evidence that the notice was 

given to [the defendant]."). See Lockard v. Whitenack, 151 Va. 

143, 153, 144 S.E. 606, 609 (1928) ("'If an attorney is 

authorized to appear, the jurisdiction over the defendant is 

perfect [sic], and the subsequent action of the attorney, not 

induced by fraud of the adverse party, is binding on the client 

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at law and on equity.'" (citation omitted)), overruled in part, 

Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245 (1956). 

Appellant alleges no such fraud. 

 The trial court could have reasonably inferred that 

appellant, in fact, knew of the blood testing dates and location 

by his letter of September 23, 1993. Appellant referenced the 

blood test, indicating he had no funds nor transportation to get 

to the location. He even indicated he would prefer the test to 

be taken in Harrisonburg. Again, the fact finder could conclude 

that appellant knew of the details of the earlier scheduled 

testing. 

 Therefore, the record belies appellant's claim of lack of 

notice. He was served personally with the paternity petition, 

and his attorney made a general appearance and appeared at each 

stage of the proceeding. Appellant's failure to communicate and 

cooperate with counsel caused his predicament, not lack of 

notice. We conclude that appellant had proper notice. 

 Appellant next contends the JDR court failed to follow the 

procedures set forth in Code § 20-61.3. Specifically, appellant 

contends that because he was not served personally with the show 

cause summons, the court could not enter a "default judgment" 

against him. Further, he argues that Code § 20-61.3 was 

violated because he was not served with a copy of the paternity 

order. 

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 Appellant cannot complain of the type of service of the 

show cause summons because the show cause was dismissed on 

September 13, 1993 at the paternity hearing. Further, counsel 

had notice of the show cause hearing. 

 It is important to note that the September 13, 1993 

adjudication of paternity was not a default judgment. When one 

appears generally, files a pleading, and is represented by 

counsel at all stages of the proceedings, that party is not in 

default. See Rules 2:7, 3:17 and 7B:9. Appellant's absence and 

his failure to communicate with counsel were of his own 

choosing. 

 Code § 20-61.3 envisions a "default" situation when the 

putative father is served personally but does not participate in 

the proceedings, either personally or by counsel. The statute 

states that in the absence of a putative father who has been 

served personally, "[T]he court shall proceed in hearing the 

evidence in the case . . . as if the putative father were 

present." Code § 20-61.3. Code § 20-61.3 concludes by 

requiring a copy of the order to be served upon the father. Id. 

Because appellant was present through counsel, the service 

requirement was satisfied. See Code § 8.01-314. 

 Appellant next challenges the sufficiency of the evidence 

in the original paternity hearing of September 13, 1993. 

Appellant contends the evidence did not rise to a "clear and 

convincing" level of proof. First, it should be noted appellant 

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did not appeal the September 13, 1993 paternity determination. 

He now attempts to collaterally attack that judgment, which 

became a final order twenty-one days after the date of entry, on 

sufficiency grounds. See Rule 1:1. 

 Appellant's contention fails for a number of reasons. 

First, it is well settled that one cannot collaterally attack a 

prior judgment on sufficiency grounds. See Morse v. 

Commonwealth, 6 Va. App. 466, 369 S.E.2d 863 (1988). In Morse, 

Morse contended the trial court erroneously relied on a prior 

conviction for driving with a suspended license when it declared 

him an habitual offender, arguing that the evidence was not 

sufficient to convict him of driving with a suspended license. 

We held, "[w]e find no sound reason for allowing the defendant 

to challenge the sufficiency of the evidence to support his 

underlying conviction. If such a practice were authorized, the 

adjudication hearing would inevitably become a forum for 

relitigating each of the three prior final judgments." Id. at 

469, 369 S.E.2d at 865. 

 We now address appellant's independent suit under Code 

§ 8.01-428 to set aside the 1993 paternity order on the basis of 

alleged fraud. In Jennings v. Jennings, 26 Va. App. 530, 495 

S.E.2d 544 (1998), we held: 

 A court may "entertain at any time an 

independent action . . . to set aside a 

judgment or decree for fraud upon the 

court." Code § 8.01-428(D). Because 

"judicial proceedings must have a certainty 

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of result, and a high degree of finality 

must attach to judgments," we construe the 

language contained in Code § 8.01-428(D) 

narrowly. Byrum v. Lowe & Gordon, Ltd., 225 

Va. 362, 365, 302 S.E.2d 46, 48 (1983) 

(citation omitted). 

Id.

 In Charles v. Precision Tune, Inc., 243 Va. 313, 414 S.E.2d 

831 (1992), the Supreme Court of Virginia listed the elements of 

the independent action: 

"(1) a judgment which ought not, in equity 

and good conscience, to be enforced; (2) a 

good defense to the alleged cause of action 

on which the judgment is founded; (3) fraud, 

accident, or mistake which prevented the 

defendant in the judgment from obtaining the 

benefit of his defense; (4) the absence of 

fault or negligence on the part of the 

defendant; and (5) the absence of any 

adequate remedy at law." 

Id. at 317-18, 414 S.E.2d at 833 (citation omitted). 

 At issue in this case is whether appellant produced 

sufficient evidence to satisfy the fourth element, absence of 

fault or negligence on his part. We reject appellant's argument 

that he was free from fault or negligence. The trial court 

found, "[i]t is because of Lucas' inaction and negligence that 

the case is now at this stage." The trial court factually found 

that appellant was personally served with the original paternity 

petition, he appeared generally by counsel, he failed to 

communicate with counsel, he failed to appear at two scheduled 

blood draws, and he failed to appear in court. Clearly, 

appellant was the author of his own predicament. Had appellant 

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appeared for the testing, he would have been excluded as the 

father and no finding of paternity would have been made. 

Thus, the evidence overwhelmingly indicates appellant was not 

free of fault.2

 Appellant next contends this Court must change the current 

body of jurisprudence to allow a father to re-open a 

determination of paternity in the event of error or mistake. In 

essence, appellant asks that we ignore the doctrine of 

collateral estoppel as enunciated in Slagle v. Slagle, 11 Va. 

App. 341, 398 S.E.2d 346 (1990). We decline that invitation and 

do not deem it necessary to defend the doctrine in this opinion. 

Collateral estoppel is a "'fundamental precept of common-law 

adjudication.'" Slagle, 11 Va. App. at 344, 398 S.E.2d at 348 

(quoting Montana v. United States, 440 U.S. 147 (1979)). 

 However, as discussed above, one who is free from neglect 

and fault can seek relief under Code § 8.01-428(D) if fraud can 

be shown to have been perpetrated on the court. See id. at 348, 

398 S.E.2d at 350. "Principles of collateral estoppel may not be 

invoked to sustain fraud." Id. (citation omitted). 

 Finally, appellant contends the paternity test finding that 

he is not the father is a material change in circumstance that 

 2

 Because we find the evidence supports the trial court's 

finding of appellant's fault and negligence, we do not address 

the other elements of this action under Code § 8.01-428(D). For 

the same reason, we do not address the trial court's finding 

that the evidence only showed "intrinsic fraud." 

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warrants a termination of child support. Specifically, 

appellant maintains the trial court erred in ruling that only 

monetary changes are relevant to a change in circumstance. In a 

spousal support context, we have held that "other than death or 

remarriage, the 'circumstances' which make 'proper' an increase, 

reduction or cessation of spousal support under Code § 20-109 

are financial and economic ones." Hollowell v. Hollowell, 6 Va. 

App. 417, 419, 369 S.E.2d 451, 452-43 (1988). We see no reason 

to arrive at a different result for child support. We hold that 

a "change in circumstances" must bear on the financial needs of 

the child and the ability of the parent to pay.3

 For these reasons, we affirm the trial court's dismissal of 

father's petition to reduce child support. 

Affirmed.

 3

 Effective July 1, 2001, Code § 20-49.10 affords relief 

from a child support or paternity determination order where a 

subsequent, scientifically reliable, genetic test excludes the 

individual as the father. 

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