Breit v. Mason

• Decision Date: 28 December 2011
• Docket Number: Record No. 0337–11–1.
• Citation: 718 S.E.2d 482,59 Va.App. 322
• Parties: William D. BREIT v. Beverley MASON and L.F., a minor.*
• Court: Virginia Court of Appeals

59 Va.App. 322

718 S.E.2d 482

William D. BREIT

v.Beverley MASON and L.F., a minor.*

Record No. 0337–11–1.

Court of Appeals of Virginia, Chesapeake.

Dec. 28, 2011.

Kevin E. Martingayle, Virginia Beach, (William D. Breit; Serious Injury Law Center, PLLC, on briefs), for appellant.

Reeves W. Mahoney (Andrew T. Richmond; Huff, Poole & Mahoney, P.C., Virginia Beach, on brief), for appellee Beverley Mason.

Jerrold G. Weinberg, Guardian ad litem for the minor child (Weinberg & Stein, on brief), Norfolk, for appellee L.F.

Present: FELTON, C.J., ELDER, J., and WILLIS, Senior Judge.

FELTON, Chief Judge.

William Breit (“Breit”) appeals the order of the Circuit Court for the City of Virginia Beach (“trial court”) sustaining Beverley Mason's (“mother”) and L.F.'s (“child”) pleas in bar to Breit's petition to determine parentage of L.F. Breit contends the trial court erred in holding that he is barred from asserting that he is the legal father of L.F. L.F. was conceived as a result of assisted conception. Mother, the biological and gestational mother, and Breit, the sperm donor and biological father, never married.

Breit also contends the trial court erred in appointing counsel hired by mother to act as the child's guardian ad litem, and erred in failing to award his attorney's fees at trial. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings. ¹

I. BACKGROUND

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff's recovery.” Hawthorne v. VanMarter, 279 Va. 566, 577, 692 S.E.2d 226, 233 (2010). “[W]here no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented. In doing so, the facts stated in the plaintiff's [petition] are deemed true.” Lostrangio v. Laingford, 261 Va. 495, 497, 544 S.E.2d 357, 358 (2001). However, “[i]f the parties present evidence on the plea ore tenus, the [trial] court's factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.” Hawthorne, 279 Va. at 577, 692 S.E.2d at 233. So viewed, the following facts are undisputed.

Mother and Breit were in a long-term romantic relationship and lived together as an unmarried couple. Mother desired to have a child, and during the course of their relationship mother and Breit engaged in sexual intercourse for the purpose of conceiving a child.² Their efforts to conceive a child through sexual intercourse were unsuccessful. In April 2008, mother and Breit sought reproductive assistance from Dr. Jill T. Flood, a board-certified physician in obstetrics, gynecology, and reproductive endocrinology. Dr. Flood interviewed mother and Breit and collected their medical, social, and family histories.³ Dr. Flood counseled mother and Breit about various fertility treatment options, costs, and risks of treatment, and collected blood and semen specimens from Breit to aid in the in vitro fertilization of mother's ova.⁴ In June 2008, Dr. Flood retrieved eggs from mother's ovaries, fertilized those eggs outside mother's body using the sperm donated by Breit, and transferred the resulting embryos into mother's uterus. The June 2008 transfer was unsuccessful, and mother did not become pregnant. Dr. Flood repeated the transfer process in October 2008, again using sperm donated by Breit. Breit was present for both rounds of egg retrieval, fertilization, and transfer of the embryos into mother's uterus. The second transfer was successful, and Dr. Flood confirmed in October 2008 that mother was pregnant. Mother and Breit continued to cohabitate throughout mother's pregnancy.

On June 8, 2009, prior to the child's birth, mother and Breit entered into a written Custody and Visitation Agreement, prepared by mother's attorney, providing that Breit would have reasonable visitation with the child and that such visitation would serve the best interests of the child. On July 13, 2009, mother gave birth to L.F. The following day, July 14, 2009, mother and Breit executed a sworn, written “Acknowledgment of Paternity,” naming Breit as the biological and legal father of the child.⁵ Mother and Breit agreed to give L.F. a hyphenated surname comprised of mother's and Breit's surnames. Mother and Breit were named as L.F.'s mother and father on L.F.'s birth certificate, pursuant to Code § 32.1–257(D),⁶ and they jointly mailed birth announcements to friends and family naming mother and Breit as L.F.'s parents. Mother and Breit continued to cohabitate for months after L.F.'s birth and represented to friends and family that Breit was L.F.'s legal and biological father. Breit maintained L.F. on his health insurance, cared for L.F., and established a relationship with her.⁷

In August 2010, when L.F. was just over one year old, mother unilaterally terminated all contact between L.F. and Breit. On August 24, 2010, Breit filed a petition for custody and visitation in the Virginia Beach Juvenile and Domestic Relations District Court (“JDR district court”). Mother filed a motion to dismiss, asserting that, pursuant to Code §§ 20–158(A)(3) and 32.1–257(D), notwithstanding the voluntary Acknowledgment of Paternity executed by the parties under oath, and notwithstanding that mother and Breit signed the application for L.F.'s birth certificate, Breit was not the legal father of L.F. Mother asserted that Code § 20–158(A)(3) provided, in pertinent part, that “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother” and that Code § 32.1–257(D) provided, in pertinent part, that “[d]onors of sperm or ova shall not have any parental rights or duties for any ... child [conceived as a result of assisted conception].”

On October 28, 2010, “in the interest of judicial expediency,” the JDR district court dismissed, without prejudice, Breit's petition for custody and visitation. On November 1, 2010, Breit appealed the dismissal of the JDR district court to the trial court. On November 15, 2010, pursuant to Code § 20–49.2, Breit filed a Petition to Determine Parentage and Establish Custody and Visitation (“Petition to Determine Parentage”) in the trial court, naming mother and L.F. as co-party defendants.⁸ Breit asserted that the Acknowledgment of Paternity that he and mother executed on July 14, 2009, the day after mother gave birth to L.F., “creat[ed] a final and binding [p]arent and [c]hild relationship between [Breit] and [L.F.].” ⁹ He also filed a Notice and Motion for Entry of Summary Judgment Order (“Motion for Summary Judgment”) and various procedural motions associated therewith. ¹⁰ On December 6, 2010, the trial court entered an order consolidating the appeal from the JDR district court with Breit's Petition to Determine Parentage.

On December 13, 2010, L.F., the infant at issue, by her attorney Jerrold Weinberg, filed a Plea in Bar to Breit's Petition to Determine Parentage.¹¹ Mother filed a Plea in Bar to Breit's Petition to Determine Parentage on December 15, 2010. Mother and L.F. asserted that, pursuant to Code §§ 20–158(A)(3) and 32.1–257(D), Breit was barred from receiving the relief he requested in the Petition to Determine Parentage because Breit and mother had never been married and L.F. was conceived through assisted conception. At the hearing in the trial court on December 20, 2010, the trial court, over Breit's objection, appointed Jerrold Weinberg, the attorney previously retained for L.F. by mother, to be L.F.'s guardian ad litem, sustained the pleas in bar to Breit's Petition to Determine Parentage, and dismissed Breit's petitions for custody, visitation, and summary judgment. The trial court stated:

I'm of the opinion that the pleas in bar should be sustained. I think frankly if I were to construe this the way that [Breit] asks, and there's a strong argument for that, but if you do it seems to me that [Code §§ ] 20–158(A) and [20–164] ¹² and so forth would be trumped and could be made to be fairly meaningless, and I don't think that's a proper way to construe statutes. I think you have to construe them so that they ... are in harmony with each other.

(Footnote added).

On January 28, 2011, the trial court entered a final order (“order”) sustaining L.F.'s and mother's pleas in bar to Breit's Petition to Determine Parentage, denied his Motion for Summary Judgment and Motion for Genetic Testing, and dismissed without prejudice the portion of relief sought by him in his Petition to Determine Parentage to award him custody and visitation with L.F. as a person with a legitimate interest. On February 2, 2011, Breit filed a motion to rehear in the trial court, which was scheduled for argument on March 9, 2011. Prior to the scheduled date on his motion to rehear, Breit timely filed a notice of appeal with this Court seeking review of the trial court's order denying his Petition to Determine Parentage of L.F. The trial court thereafter entered an order denying Breit's motion to rehear and canceled the hearing previously set for March 9, 2011.¹³

II. ANALYSIS

In this appeal, we consider whether the trial court—in a paternity action filed by a known sperm donor, who was acknowledged under oath by the biological and gestational mother, to whom the donor was never married, to be the biological father of the child at issue—erred in sustaining pleas in bar to the sperm donor's petition to determine parentage of the child conceived as a result of assisted conception.

Following a hearing on mother's plea in bar, the trial court found that Code § 20–158(A)(3) barred Breit from establishing parentage of L.F. pursuant to Code § 20–49.2, notwithstanding the voluntary Acknowledgment of Paternity executed under oath by mother and Breit pursuant to Code § 20–49.1(B)(2). Whether Code § 20–158(A)(3) prohibits a parentage action...