                             COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia


RONNIE EUGENE TUCKER
                                                                OPINION BY
v.     Record No. 1375-03-3                            JUDGE RUDOLPH BUMGARDNER, III
                                                              DECEMBER 23, 2003
DONNA S. WIMER AND
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. DONNA S. WIMER


                FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
                             Humes J. Franklin, Jr., Judge

               Peter J. Judah for appellant.

               Steven P. Roadcap, Special Counsel (Jerry W. Kilgore, Attorney
               General; David E. Johnson, Deputy Attorney General; Craig M.
               Burshem, Senior Assistant Attorney General; Beth J. Edwards,
               Regional Special Counsel; Alice G. Burlinson, Office of the
               Special Counsel; on brief), for appellee Commonwealth of
               Virginia Department of Social Services, Division of Child Support
               Enforcement, ex rel. Donna S. Wimer.

               No brief or argument for appellee Donna S. Wimer.


       The Division of Child Support Enforcement sought to enforce an order for child support

of J.T.W. based on an earlier decision that Ronnie Eugene Tucker was the natural father. Tucker

contended the paternity determination was void because the trial court had not appointed a

committee for him pursuant to Code § 53.1-223. The trial court found that he was not entitled to

a committee because he was not incarcerated for a felony conviction and enforced the support

order. We affirm the trial court.
       In 1987, the Bath County Circuit Court convicted Tucker of breaking and entering and

petit larceny. It imposed a suspended sentence and placed him on probation. On January 11,

1989, his probation officer issued a PB-15 for violating probation when Tucker received a new

felony charge in the City of Staunton. He also received new felony charges in Bath County.

       On March 15, 1989, while Tucker was in jail awaiting trial on the new felony charges and

a hearing on his probation violation, the Staunton Juvenile and Domestic Relations District Court

heard a paternity petition. Tucker appeared at the hearing, made no request for a committee, and

conceded paternity. The district court entered the paternity order. After the paternity hearing,

Tucker was convicted of the City of Staunton felony charge. Later, he was convicted of the Bath

County felonies and his probation was revoked.

       The district court did not award support when it decreed paternity because Tucker had no

income while incarcerated. Support was ordered April 27, 1990. Ten years later, the Highland

County Juvenile and Domestic Relations District Court found Tucker in arrears in the amount of

$37,086.60. When DCSE sought to enforce the arrearage, Tucker filed a petition to have the

1989 paternity order vacated.1 He asserted he “was incarcerated at the time of that Order and the

Court neglected to appoint him a Guardian Ad Litem.”

       The parties presented the circuit court with a joint stipulation that Tucker had been

convicted of a felony and was incarcerated at the time of the paternity suit. The circuit court

ruled the paternity order was void based on the stipulation. Before entering an order carrying out




       1
        Tucker also requested a new paternity test. The circuit court ordered the tests, which
conclusively proved he was the father.
                                             -2-
its initial ruling and upon a motion suggesting the stipulation was incorrect,2 the trial court

reconsidered its ruling.

       After hearing evidence, the trial court issued a second opinion that found Tucker “was in

jail awaiting a final determination on his felony charges and parole violation.” It concluded he

did not satisfy the requirements for the appointment of a committee, Code § 53.1-223. “[T]he

triggering event would have been Mr. Tucker’s actual felony conviction or reinstatement of his

suspended sentence,” neither of which occurred until several months after the paternity suit.

       At common law, a prisoner confined to the penitentiary was allowed to be sued even

though he could not appear in court. Code § 53-307, the predecessor of Code § 53.1-223, was

enacted to protect the property rights of prisoners by appointing a committee in his place.

Almond v. Kent, 459 F.2d 200, 201 (4th Cir. 1972). In 1989, Code § 53.1-223 provided, “No

action or suit on any claim or demand shall be instituted against a prisoner after judgment of

conviction and while he is incarcerated, except through his committee.” The conjunctive “and”

makes clear the petitioner must both be convicted of a felony and incarcerated on that

conviction. See Varga v. Commonwealth, 260 Va. 547, 551-52, 536 S.E.2d 711, 714 (2000)

(“and” is conjunctive and requires both elements to be satisfied).

       Code § 53.1-221 establishes the criterion for appointment of committees: “When a

person is convicted of a felony and sentenced to confinement in a state correctional facility . . . .”

A court’s authority to appoint and a committee’s powers to act are conditioned “upon the fact of

conviction and sentence to confinement to the penitentiary . . . .” Merchant v. Shry, 116 Va. 437,

445, 82 S.E. 106, 109 (1914) (based on Code § 4115). See also Burks Pleading and Practice

§ 69, at 136 (4th ed. 1952) (“[I]n Virginia, when a person is convicted of a felony and sentenced


       2
         Tucker contends DCSE should be bound by its stipulation. However, the trial court had
not entered its final order and was free to reconsider its decision and the basis upon which it
rested. Bennett v. Commonwealth, 33 Va. App. 335, 344, 533 S.E.2d 22, 27 (2000) (en banc).
                                                 -3-
to confinement in the penitentiary or to the State convict road force for one year or more, his

estate . . . is . . . committed by the court to a . . . committee.”); 14B Michie’s Jurisprudence,

Prisons and Prisoners § 9, at 515 (2000) (court is authorized to appoint committee for person

“convicted of a felony and sentenced to the penitentiary or to the state convict force, for one

year, or more”).

          At the time of the paternity hearing, Tucker was not serving the sentence imposed in

1987. He was being held on a warrant charging violation of probation. The sentencing court had

not revoked the previously suspended sentence. It had not even conducted a hearing to

determine if Tucker had violated the terms of his probation. At the time of the paternity suit,

Tucker was awaiting trial on the subsequent felony charges in the City of Staunton and Bath

County. Neither circuit court had tried, convicted, or sentenced him on those charges. The

paternity petition was filed and the order entered before Tucker was incarcerated for any felony.

          The trial court correctly found Tucker was not entitled to a committee. Accordingly, we

affirm.

                                                                                             Affirmed.




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