Breit v. Mason

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 plaintiffs 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 *327 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 plaintiffs [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. *328 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 *329 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 *330 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 *331 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 *332 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 by a known sperm donor, who was not married to the child’s mother at conception or at the time of the child’s birth, and who executed an Acknowledgment of Paternity under oath jointly with the mother pursuant to Code § 20-49.1(B)(2), is a matter of first impression before this Court. Because this case presents “a question of law ... involving] the interpretation and application” of these statutes, “we review the trial court’s judgment de novo.” Colbert v. Commonwealth, 47 Va.App. 390, 394, 624 S.E.2d 108, 110 (2006).

*333 A. Code §§ 20-49.1(B)(2) and 20-158(A)(3)

Code § 20-49.2 provides that, “upon petition, verified by oath or affirmation, ... a child, a parent, a person claiming parentage, a person standing in loco parentis to the child or having legal custody of the child or a representative of the Department of Social Services or the Department of Juvenile Justice” may commence an action under Title 20, Chapter 3.1, an Act related to Proceedings to Determine Parentage, to determine parentage of the child. Code § 20-49.2 provides that “[t]he determination of parentage, when raised in any proceeding, shall be governed by [Title 20, Chapter 3.1, Code §§ 20-49.1 to -49.10].”

Code § 20-49.1(B)(2) provides, in pertinent part:

The parent and child relationship between a child and a man may be established by ... [a] voluntary written statement of the father and mother made under oath acknowledging paternity.... The acknowledgement may be rescinded by either party within sixty days from the date on which it was signed.... A written statement shall have the same legal effect as a judgment entered pursuant to [Code] § 20-49.8 and shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress or a material mistake of fact.

(Emphasis added). Neither mother nor Breit rescinded the Acknowledgment of Paternity within sixty days of signing it, and neither party asserted that the Acknowledgment of Paternity resulted from fraud, duress, or a material mistake of fact.

Title 20, Chapter 9, Code §§ 20-156 to -165, an Act related to the Status of Children of Assisted Conception, 14 provides *334 that, in determining the parentage of a child conceived through assisted conception, “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.” Code § 20-158(A)(3).

Mother asserts that Code § 20-158(A)(3) imposes an absolute legal bar to Breit’s ability to assert parentage of the child. As a result, she contends the Acknowledgment of Paternity executed by the parties pursuant to Code § 20-49.1(B)(2) is void ab initio as being contrary to the General Assembly’s express intent to divest all sperm donors of any parental rights and responsibilities for children born as a result of assisted conception, even where, as here, the mother and donor acknowledged under oath and obtained a birth certificate acknowledging that the donor was the biological father of the child.

Breit contends that Code §§ 20-49.1(B)(2) and 20-158(A)(3) must be construed together to effectuate the legislative intent of each statute and that Code § 20-158(A)(3) does not operate as a permanent bar to his ability to establish parentage of the child under the circumstances presented in these proceedings. See City of Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675 S.E.2d 197, 202 (2009) (“It is the duty of the courts to construe statutory enactments so as to avoid repugnance and conflict between them and, if possible, to give force and effect to each of them.”). Breit asserts the primary purpose of the assisted conception statutes, Code §§ 20-156 to -165, is to assist infertile married couples in effectuating surrogacy contracts with sperm and egg donors or gestational surrogates; assign parental rights and responsibilities to the intended parents, that is, the infertile married couple; and to divest donors, generally anonymous, of legal rights and responsibilities for any resulting children. Breit contends that the General Assembly, in enacting Code § 20-158(A)(3), did not intend to divest known sperm donors of the ability to establish *335 parentage of children born as a result of assisted conception where, as here, the gestational and biological mother and sperm donor were known to each other, lived together as an unmarried couple, voluntarily engaged in sexual intercourse for the purpose of conceiving a child, voluntarily executed an Acknowledgment of Paternity pursuant to Code § 20-49.1(B)(2) identifying the donor as the father of the child, named the donor as the child’s father on the child’s birth certifícate, and jointly represented to friends and family that the donor was the father of the child.

Under settled principles of statutory construction, related statutes must be construed “together in order to give full meaning, force, and effect to each.” Antisdel v. Ashby, 279 Va. 42, 48, 688 S.E.2d 163, 166 (2010). We interpret like statutes in accord to “ ‘make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness.’” Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456, 462 (2007) (quoting Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957)). We presume the General Assembly did not intend to enact a “manifest absurdity,” and we interpret statutes to avoid such an inconsonant result. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). In addition, “[i]f a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.” Id.

Code §§ 20-158(A)(3) and 20-49.1(B)(2) clearly relate to the same subject matter, that is, establishing legal parentage of children. Though in separate and distinct chapters of Title 20, each statute has the same basic objective, namely, to confer the rights and responsibilities of parentage upon the intended mother and father. We conclude that under settled rules of statutory construction, Code § 20-158(A)(3) must be read in conjunction with Code § 20-49.1(B)(2). See Andrews v. Creacey, 56 Va.App. 606, 617, 696 S.E.2d 218, 223 (2010) (“ ‘Statutes which have the same general or common purpose or are *336 parts of the same general plan are ... ordinarily considered as in pari materia.’” (quoting Lucy v. County of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999))); Commonwealth v. Fairfax County Sch. Bd., 49 Va.App. 797, 803-04, 645 S.E.2d 337, 340 (2007) (“Under the rules of statutory construction, closely related statutes must be read as being consistent with one another.”).

Reading together Code §§ 20-49.1(B)(2) and 20-158(A)(3), each of which has as its primary purpose ensuring legal parentage of a child by a known mother and known father, we conclude the General Assembly did not intend to permanently bar a parentage action by a sperm donor under the factual circumstances presented in the record on appeal, including the voluntary acknowledgment of parenthood under oath by the undisputed biological mother and biological father pursuant to Code § 20-49.1(B)(2), solely because the mother and sperm donor were unmarried at the time of conception. Such a narrow reading of the assisted conception statutes fails to accord harmony with—and indeed all but negates—the ability of a known biological father, chosen by the birth mother, to establish parentage pursuant to Code § 20-49.1(B)(2). Interpreting Code § 20-158(A)(3), under the circumstances presented in this record, to impose a permanent bar to a known biological father’s petition to determine parentage pursuant to Code § 20-49.2—a biological father whose sperm was donated for in vitro fertilization at the request and with the consent of the birth mother who voluntarily signed a birth certificate application under oath acknowledging the biological father to be the legal father of the child—results in a manifest absurdity because the intended, biological father of the child could never establish parentage of the child. See Appellee’s Br. at 6 (Code § 20-158(A)(3) “fully and finally terminated any potential parentage rights of sperm donors” (emphasis added)). Mother’s interpretation of Code § 20-158(A)(3) forecloses any legal means for an intended, unmarried, biological father to establish legal parentage of a child born as the result of assisted conception, merely by virtue of his immutable status as a “donor.” Such a narrow reading of Code § 20-158(A)(3) *337 ignores the intent of the legislature to ensure that all children born in the Commonwealth have a known legal mother and legal father. See, e.g., Commonwealth ex rel. Gray v. Johnson, 7 Va.App. 614, 622, 876 S.E.2d 787, 791 (1989) (“[T]he establishment of the parent-child relationship is the most fundamental right the child possesses to be equated in importance with personal liberty and the most basic constitutional rights.” (quoting Ruddock v. Ohls, 91 Cal.App.3d 271, 154 Cal.Rptr. 87, 91 (1979))).

We “will not add words to [Code §§ 20-156 to -165] that would expand the scope of the statute[s].” Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244, 248, 672 S.E.2d 877, 879 (2009). We do not read Code §§ 20-156 to -165, which are primarily concerned with ensuring that infertile married couples will not be threatened by parentage claims from anonymous sperm and egg donors, to mandate that a chosen, unmarried sperm donor, known by the unmarried gestational mother and intended by the gestational mother to be the father of the resulting child, may never be legally recognized as the parent, and must be permanently barred from assuming parental rights and responsibilities, simply because he was not married to the mother at the time the child was conceived by voluntary assisted conception.

From the undisputed factual record presented on appeal, we conclude that a known sperm donor who, at the request of a woman to whom he is not married, donates his sperm for the purpose of uniting that sperm with that woman’s egg to accomplish pregnancy through assisted conception and who, together with the biological mother, executes an uncontested Acknowledgment of Paternity under oath, pursuant to Code § 20-49.1(B)(2), is not barred from filing a parentage action pursuant to Code § 20-49.2 to establish paternity of the child resulting from assisted conception. Accordingly, we reverse the holding of the trial court sustaining appellees’ pleas in bar to Breit’s Petition to Determine Parentage, and remand for further proceedings. 15

*338 B. Guardian ad litem

Breit also contends the trial court abused its discretion in appointing attorney Jerrold G. Weinberg (“Weinberg”) as the child’s guardian ad litem (“GAL”), asserting that Weinberg was not qualified to act as GAL pursuant to Code §§ 16.1-266 and 8.01-9, 16 failed to make any inquiry with Breit *339 about his relationship with L.F., and had a clear conflict of interest in acting as the child’s GAL. Mother asserts that Code §§ 16.1-266 and 8.01-9 expressly provide that the trial court may appoint the child’s attorney as GAL and that nothing in the common law or Rules of Professional Conduct prohibits an attorney from representing a client while being paid by a third party.

Code § 8.01-9 provides, inter alia, that it is the duty of the GAL to “faithfully represent ... the interest of the [child] for whom he is appointed” and that it is the duty of the trial court to ensure the GAL faithfully represents and protects the interests of that child. “Whenever the court is of the opinion that the interest of the [child] so requires, it shall remove any [GAL] and appoint another in his stead.” Code § 8.01-9.

At the December 20, 2010 hearing, before appointing Weinberg as L.F.’s GAL, the trial court admonished the parties that “somebody should be here representing [L.F.] separate and apart from either of the other parties” and that any appointed GAL must represent the best interest of L.F. “independent of either parent.” The trial court noted that mother, not Breit, had hired and paid Weinberg to act as L.F.’s attorney. The trial court also stated that only “an incredibly unusual person” can be “independent when [he] [is] being paid by one of the parties,” and surmised that one “[cannot] serve two masters.” Breit’s counsel told the trial court that Weinberg had not interviewed Breit or any other witnesses and, by taking an identical position as mother in response to Breit’s Petition to Determine Parentage, was “representing [to the trial court] that this is the best interest of [L.F.] without any investigation of’ Breit. The trial court then asked and received confirmation from Weinberg that he *340 was retained by mother to be the child’s attorney. Without further colloquy or explanation, and notwithstanding its prior remarks, the trial court then appointed Weinberg to act as L.F.’s GAL and ordered that mother and Breit share the cost of Weinberg’s GAL fees.

From the record before us, we conclude that the trial court abused its discretion in appointing Weinberg to act as the child’s GAL. The role of the GAL “when representing an infant [is] to defend a suit on behalf of the infant earnestly and vigorously and not merely in a perfunctory manner.” Norfolk Div. of Soc. Servs. v. Unknown Father, 2 Va.App. 420, 425 n. 5, 345 S.E.2d 533, 536 n. 5 (1986). It is axiomatic that the GAL’s investigation of the facts must be independent of any other party’s interests in the outcome of the litigation. See, e.g., Bottoms v. Bottoms, 249 Va. 410, 420, 457 S.E.2d 102, 108 (1995) (GAL must serve as an “independent participant” in the trial court on behalf of the child); Standards to Govern the Performance of Guardians ad litem for Children, supra note 16 (noting a GAL must, inter alia, conduct an independent investigation to ascertain the facts of the case and provide the trial court sufficient information based on the findings of the GAL’s independent investigation).

The record on appeal contains no indication that the trial court made any inquiry of Weinberg whether his duty to represent L.F.’s best interest as GAL was compromised by his pre-existing legal relationship with and financial dependence on mother. Given the existence of uncontradicted allegations in the record tending to implicate such concerns, we conclude the trial court erred in appointing Weinberg as the child’s GAL and direct the trial court to appoint a new GAL for L.F. on remand.

C. Attorney’s Fees

Breit also asserts the trial court erred in failing to award his attorney’s fees at trial. Because Breit failed to present this argument to the trial court, we will not consider it for the first time on appeal. See Rule 5A:18 (“No ruling of the *341 trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice”). Breit does not argue that we should invoke either the good cause or ends of justice exceptions to Rule 5A:18, and we will not consider Rule 5A:18 exceptions sua sponte. Edwards v. Commonwealth, 41 Va.App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc ). 17

III. CONCLUSION

For these reasons, we affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.