Hur v. Virginia Dept. of Social Services Div. of Child Support Enforcement ex rel. Klopp

• Decision Date: 10 September 1991
• Docket Number: No. 0282-90-4,0282-90-4
• Citation: Hur v. Virginia Dept. of Social Services Div. of Child Support Enforcement ex rel. Klopp, 409 S.E.2d 454, 13 Va.App. 54 (Va. App. 1991)
• Parties: John D. HUR, v. VIRGINIA DEPARTMENT OF SOCIAL SERVICES DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. Michelle KLOPP, and Sharon K. Klopp, an infant, by her Guardian ad Litem. Record
• Court: Virginia Court of Appeals

Page 454

409 S.E.2d 454

13 Va.App. 54

John D. HUR, v. VIRGINIA DEPARTMENT OF SOCIAL SERVICES DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. Michelle KLOPP and Sharon K. Klopp, an infant, by her Guardian ad Litem.

Record No. 0282-90-4.

Court of Appeals of Virginia.

Sept. 10, 1991.

Conrad J. Marshall, McLean, for appellant.

Paul B. Ebert, Commonwealth's Atty., for appellee Dept. of Social Services.

Richard F. Wheeler, guardian ad litem, for appellee Sharon K. Klopp.

Present: KOONTZ, C.J., and BENTON and KEENAN, ^* JJ.

BENTON, Judge.

John D. Hur appeals from an order requiring him to pay support for his daughter, denying his motions to file a counterclaim and to have a jury trial, and denying his oral request for visitation. Hur presents eighteen questions on this appeal. We have synthesized those questions into six issues that are separately discussed in the opinion with the facts pertinent to each issue. We affirm the judgment on all issues except for the denial of visitation, which we reverse and dismiss.

I. COUNTERCLAIM

This proceeding was initiated when Michelle Klopp filed a child support petition in the juvenile court. The juvenile court ordered Hur to pay $200 per month for his daughter's support. Hur noted his appeal to the circuit court and appeared six months later before the circuit court requesting an extension of time to file an answer, grounds of defense, and counterclaim. The circuit judge allowed the untimely filing of the answer and grounds of defense, but refused to allow Hur to file a counterclaim for monetary damages. Hur contends the trial judge erred in denying his request to file the counterclaim, which alleges that Klopp intentionally inflicted emotional harm upon Hur by seducing him, refusing to obtain an abortion, and refusing to place the child for adoption.

"The time allowed for filing pleadings may be extended by [a] court in its discretion." Rule 1:9; see Williams v. Service Inc., 199 Va. 326, 329, 99 S.E.2d 648, 651 (1957). "Rule 1:9 is not intended to prevent a defendant from making a full defense, but to expedite the causes before the court and avoid delay through dilatory tactics." Emrich v. Emrich, 9 Va.App. 288, 292-93, 387 S.E.2d 274, 276 (1989) (citation omitted). Hur's counterclaim for money damages was an attempt to inject matters irrelevant to the issue then pending before the circuit court. Hur's allegations that Klopp seduced him when she was fifteen and he was nineteen and that she decided to keep their child contrary to his wishes, thereby causing emotional distress and loss to his estate, have no place in a proceeding to determine child support. The trial judge did not abuse his discretion in denying the request to file an untimely counterclaim which would have injected tort-based claims in an equity suit to determine child support.

II. JURY TRIAL FOR PLEA IN EQUITY

Hur contends that the trial court erred in denying his request pursuant to Code § 8.01-336(D) for a jury trial. We disagree. Code § 8.01-336(D) states:

In any action in which a plea has been filed to an equitable claim, and the allegations of such plea are denied by the plaintiff, either party may have the issue tried by jury.

"[A] plea is a pleading which alleges a single state of facts or circumstances ... which, if proven, constitutes an absolute defense to the claim." Nelms v. Nelms, 236 Va. 281, 289, 374 S.E.2d 4, 9 (1988). Hur stipulated paternity. He maintained that a jury should have been impanelled to determine whether he should be relieved of his obligation to support the child due to violation of his rights by Klopp's seduction of him and decision to keep the child. Assuming Hur's allegations to be true, they do not constitute a bar to the enforcement of his support obligations. It has long been the policy in Virginia that "[b]oth parents of a child owe that child a duty of support during minority." Rippe v. Rippe, 3 Va.App. 506, 509, 351 S.E.2d 181, 182 (1986) (quoting Featherstone v. Brooks, 220 Va. 443, 448, 258 S.E.2d 513, 516 (1979)).

The New York Court of Appeals addressed a similar issue in In re L. Pamela P. v. Frank S., 59 N.Y.2d 1, 449 N.E.2d 713, 462 N.Y.S.2d 819 (1983).

[The father] seeks to have his choice regarding procreation fully respected by other individuals and effectuated to the extent that he should be relieved of his obligation to support a child that he did not voluntarily choose to have. But [the father's] constitutional entitlement to avoid procreation does not encompass a right to avoid a child support obligation simply because another private person has not fully respected his desires in this regard. However unfairly [the father] may have been treated by [the mother's] failure to allow him an equal voice in the decision to conceive a child, such a wrong does not rise to the level of a constitutional violation.

Id. at 6-7, 449 N.E.2d at 715-16, 462 N.Y.S.2d at 821-22. We agree with that Court's express rejection of the father's argument that the mother's intentional conduct deprived him of a right to decide whether to father a child.

The issue whether to impanel a jury is left to the trial court's sound discretion and will not be reversed absent an abuse of discretion. See Code § 8.01-336(E); Nelms, 236 Va. at 290, 374 S.E.2d at 9-10. On this record, we find no such abuse or error.

III. CONSTITUTIONALITY OF SUPPORT STATUTES

Hur challenges the constitutionality of Virginia's support provisions. He contends that they violate the Equal Protection Clause of the United States Constitution and Article I, Section 11 of the Virginia Constitution by requiring all fathers, rather than just willing and intentional fathers, to pay child support. He further asserts that the support statutes violate the Due Process Clause of the Fourteenth Amendment by creating an irrebuttable presumption, based on paternity alone, that a father intended a child's birth. The arguments lack merit.

Child support has long been recognized as an obligation owed to the infant child, not the payee parent. This duty arises from principles of natural law. McClaugherty v. McClaugherty, 180 Va. 51, 65, 21 S.E.2d 761, 767 (1942). The requirement that all fathers owe a duty of support to their children is necessarily related to the compelling governmental interest of preserving the welfare of children. Cf. McKeel v. McKeel, 185 Va. 108, 116, 37 S.E.2d 746, 750 (1946). Including all parents in the class of those obligated to pay support is neither overbroad nor violative of the Equal Protection Clause.

To hold otherwise would violate the daughter's right to equal protection under the law. The United States Supreme Court wrote that "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 874-75, 35 L.Ed.2d 56 (1973) (per curiam). A distinction drawn between wanted and unwanted children would not be any less invidious.

Hur errs in characterizing Code § 20-108.2(A) as creating an irrebuttable presumption. Code § 20-108.2(A) establishes a rebuttable presumption as to the level of support owed by a particular parent. The administrative agency or trial court determining the obligation may deviate from the presumptive figures "as determined by relevant evidence pertaining to the factors set out in [Code] §§ 20-107.2 and 20-108.1." Code § 20-108.2(A). Code § 20-107.2(2)(h) requires a consideration of "[s]uch other factors ... as are necessary to consider the equities for the parents and children." Thus, a parent is afforded an opportunity to persuade the factfinder that the presumptive support obligation is inapplicable. The meaningful opportunity afforded by this statute satisfies minimal due process concerns.

IV. SEDUCTION AND ENTRAPMENT

Hur next contends that the evidence sufficiently proved that Klopp seduced and entrapped him. Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where ... the [trial] court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.

Martin v. Pittsylvania County Dep't of Social Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986) (citation omitted).

The evidence sufficiently demonstrated that Hur voluntarily engaged in sexual relations with Klopp. It showed that Hur began dating Klopp in the summer of 1985. At the time, Hur was a nineteen year old college freshman. Klopp was a fifteen-year-old high school freshman participating in a basketball camp for which Hur was a counselor. They first had sexual intercourse on Hur's twentieth birthday and frequently engaged in sexual relations during the following months. Nothing in the record suggests that Hur was ignorant of the potential consequences of his acts. On Hur's testimony alone, the trial judge properly concluded that there was no seduction or entrapment and that Hur was liable for child support payments. We find no error.

V. CHILD SUPPORT AWARD

Hur asserts that the trial judge abused his discretion by imputing an income to him, by setting a monthly payment higher than the presumptive amount, and by ordering retroactive payments. We disagree and affirm the trial judge's ruling.

The evidence demonstrated that Hur was a nineteen-year-old college freshman when he first met Klopp. At the time this case was tried, Hur was twenty-four years old and a rising junior at the third college which he had attended. He worked part-time at a country club golf shop, earning slightly more than the minimum wage. Although his monthly expenses exceeded his gross income, the trial judge found Hur to be "twenty-four years of age, with no mental problems, and no health problems." The trial judge discredited much of Hur's evidence concerning the debt he allegedly owed to his parents. We find no evidence to the...