Bergaust v. Flaherty

• Decision Date: 11 January 2011
• Docket Number: Record No. 0650–10–4.
• Citation: 703 S.E.2d 248,57 Va.App. 423
• Parties: Jane Louise BERGAUSTv.Edward J. FLAHERTY.
• Court: Virginia Court of Appeals

57 Va.App. 423

703 S.E.2d 248

Jane Louise BERGAUST

v.Edward J. FLAHERTY.

Record No. 0650–10–4.

Court of Appeals of Virginia.

Jan. 11, 2011.

Christopher A. Wenger (Benjamin G. Chew; D. Zachary Adams; Patton Boggs, L.L.P., on briefs), for appellant.Scott A. Surovell (Nathan D. Rozsa; Surovell Markle Isaacs & Levy, PLC, on brief), Fairfax, for appellee.Present: HUMPHREYS, McCLANAHAN and ALSTON, JJ.HUMPHREYS, Judge.

Jane Louise Bergaust (“Bergaust”) appeals the Fairfax County Circuit Court's dismissal of her petition for child support. Bergaust alleges the circuit court erred in finding it did not have personal jurisdiction over the appellee, Edward Flaherty (“Flaherty”). For the reasons that follow, we affirm the circuit court.

I. Background

In June of 1994, Bergaust traveled to Giverny, France, just outside of Paris, to visit her mother during the opening of the American Museum. While there, Bergaust met Flaherty, an American filmmaker then living in Paris, who was hired to film the event. Flaherty invited Bergaust to lunch, and she agreed. Bergaust met Flaherty for a “nice long lunch,” during which they got to know each other. They cultivated “an unusual connection.”

Flaherty kept in touch with Bergaust after she returned to her home in Virginia. Flaherty called Bergaust as soon as she got back to Virginia, and then “he occasionally would call” thereafter. Over the next 18 months, the relationship continued to develop. Bergaust returned to France on December 1, 1995 to visit Flaherty. During her visit, Bergaust stayed at Flaherty's apartment. She also shared his bed. Bergaust returned to Virginia a few days before Christmas. Shortly thereafter, she discovered she was pregnant.

Because she had not had sexual intercourse with any other person, Bergaust called Flaherty and explained that the baby was his. Although Flaherty was “a little bit shocked,” he said he would do whatever Bergaust wanted to do and he promised to support her “in any way that he possibly could.” Flaherty called Bergaust at least twice a week during her pregnancy, and from the very first conversation he acknowledged his paternity. Flaherty offered to secure an abortion pill for Bergaust. He also encouraged her to attend a support group for adoptive birth mothers. During all of these conversations, Flaherty never denied having parented the child; rather, he consistently referred to the forthcoming child as “our baby.”

Bergaust's daughter, C.B., was born in Arlington, Virginia, on August 1, 1996. Bergaust immediately called Flaherty to tell him the news. Flaherty was “elated.” He was “very excited.” After that, Flaherty called Bergaust at least twice a week to talk about the baby. During these early conversations, Flaherty expressly referred to C.B. as “our daughter.” In March of 1997, when C.B. was about seven months old, Flaherty came to Virginia for a visit. He wanted to see Bergaust and C.B. Flaherty arrived at Bergaust's house in McLean at around noon and stayed until around five. During this visit, Flaherty held C.B. and played with her. Bergaust later testified that Flaherty was “enamored with” C.B. He “couldn't get over her beauty, and he was just absolutely enchanted with her.” This visit was memorialized in pictures.

Upon the conclusion of his visit, Flaherty returned to France. He initially continued to call Bergaust “once every two weeks or so,” but then the frequency of his phone calls decreased over time. Flaherty last phoned Bergaust on August 1, 1997, C.B.'s first birthday. Bergaust, who by that time had not heard from Flaherty in several months, expressed her anger and irritation over Flaherty's lack of involvement in C.B.'s life. Flaherty ended the call; he never called again.

In the summer of 2008, C.B., who was then almost twelve years old, was watching a documentary on television in which Flaherty appeared. C.B. recognized Flaherty from the photographs taken of his visit to McLean in 1997. She expressed her excitement at seeing her father to Bergaust. Berguast did some research on the film and was able to ascertain Flaherty's current address in France.

On March 16, 2009, Bergaust filed a Uniform Support Petition in the Fairfax County Juvenile and Domestic Relations District Court (J & DRC), seeking establishment of paternity and child support. Flaherty defended the action on the ground that the J & DRC lacked personal jurisdiction over him. The J & DRC agreed with Flaherty and, on June 2, 2009, granted Flaherty's motion to dismiss.

On June 11, 2009, Bergaust appealed the J & DRC's dismissal of her petition to the circuit court. Flaherty again moved to dismiss the case for lack of personal jurisdiction. After briefing and oral argument, the circuit court denied Flaherty's motion and found that it did have personal jurisdiction over Flaherty.¹ The case, then, proceeded to trial. Because Flaherty refused to cooperate with discovery, he was prohibited from objecting to Bergaust's evidence at trial and from presenting any evidence on his own behalf. Flaherty did not attend the trial.

Upon the conclusion of the evidence, the circuit court re-visited the issue of personal jurisdiction. The court allowed the parties to submit additional briefs and then issued a letter opinion, dated March 3, 2010, in which it found the circuit court did not have personal jurisdiction over Flaherty. The circuit court held that Flaherty's contacts with Virginia did not satisfy Virginia's long arm statute or otherwise comport with due process. The circuit court further opined that, even if it did have jurisdiction, there “was insufficient evidence presented from which [the court] could award any more than the presumptive minimum child support required under Va.Code Ann. § 20–108.2(B).” The circuit court, thus, dismissed the case by order dated March 3, 2010.

Bergaust noted this appeal.

II. Analysis

Bergaust's sole assertion on appeal is that the circuit court erred in finding it did not have personal jurisdiction over Flaherty. Bergaust contends, contrary to the circuit court's findings, that Flaherty's contacts with the Commonwealth satisfy Virginia's long arm statute and that the exercise of jurisdiction over Flaherty comports with due process. We review such issues of statutory and constitutional interpretation under a de novo standard of review. See Cabaniss v. Cabaniss, 46 Va.App. 595, 620 S.E.2d 559 (2005).

A. Virginia's “Long Arm” Statute

“It is well settled that a plaintiff is not entitled to ‘a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.’ ” Harrel v. Preston, 15 Va.App. 202, 204, 421 S.E.2d 676, 677 (1992) (quoting May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953)). To obtain the requisite personal jurisdiction over an out-of-state defendant in a claim for child support, the record must clearly indicate “ ‘at a minimum, a connection to Virginia that is recognized by Virginia's long-arm statute.’ ” Cabaniss, 46 Va.App. at 601, 620 S.E.2d at 561 (quoting Price v. Price, 17 Va.App. 105, 113, 435 S.E.2d 652, 657 (1993)). “The purpose of our ‘long arm statute’ is to assert jurisdiction, to the extent permissible under the Due Process Clause of the Constitution of the United States, over nonresidents who engage in some purposeful activity in Virginia.” Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533, 534, 238 S.E.2d 800, 802 (1977) (citing Carmichael v. Snyder, 209 Va. 451, 456, 164 S.E.2d 703, 707 (1968)). Such purposeful activity includes any “single act by a nonresident” giving “rise to a cause of action” in our courts. Id. at 534–35, 238 S.E.2d at 802 (citation omitted).

To that end, Code § 8.01–328.1(A)(8), the statutory provision governing long arm control over child support matters, provides in pertinent part,

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

* * * * * *

Having ... (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth[.]

In adopting Code § 8.01–328.1, “the legislature evinced a policy of extending the jurisdiction of its courts to the maximum extent permitted” by due process. Caldwell v. Seaboard S.R., Inc., 238 Va. 148, 153, 380 S.E.2d 910, 912 (1989). Thus, “ ‘the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries essentially become one.’ ” Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir.2002) (quoting Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135–36 (4th Cir.1996)). Once the long arm statute is satisfied, the question simply becomes “whether the defendant has sufficient ‘minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” Id. (alteration in original) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

If Flaherty, in fact, “conceived or fathered” a child in this Commonwealth, he is within reach of Virginia's long arm statute. Thus, the resolution of this case turns on the meaning of the phrase “conceived or fathered” in Code § 8.01–328.1(A)(8)(iii). The circuit court adopted the definition of those two words advanced by Flaherty, and found that the “plain, common and ordinary meaning of the term ‘fathered’ used in Code § 8.01–328 is to beget or to procreate as the father; whereas the term ‘conceived’ refers to the act of the mother becoming pregnant.” The circuit court concluded that the General Assembly intended a gender specific definition to each term and treated them as synonyms. Essentially, the circuit court construed the definition of the terms “conceived” and “fathered” to mean Bergaust's act of becoming pregnant and Flaherty's act of making her pregnant. The...