                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF SOCIAL SERVICES,
 DIVISION OF CHILD SUPPORT ENFORCEMENT,
 ex rel. DIANA L. BREAKIRON
                                               OPINION BY
v.   Record No. 1745-99-1                 JUDGE RICHARD S. BRAY
                                               MAY 9, 2000
ROBERT D. FARMER


           FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                Leonard B. Sachs, Judge Designate

          Marsha B. Lambert, Special Counsel (Mark L.
          Earley, Attorney General; Ashley L. Taylor,
          Jr., Deputy Attorney General; Robert B.
          Cousins, Jr., Senior Assistant Attorney
          General; Craig M. Burshem, Regional Special
          Counsel, on brief), for appellant.

          No brief or argument for appellee.


     The instant cause came before the trial court on a "Motion

for Show Cause," and related "Summons," initiated by the

Commonwealth of Virginia, Department of Social Services, Division

of Child Support Enforcement (Division), against Robert D. Farmer

(appellee), arising from appellee's alleged failure to comply with

an "Administrative [Child] Support Order."   In adjudicating the

motion, the court determined that appellee was not the father of

the child, vacated the order, and relieved appellee from all

accrued arrearages.
     The Division appeals, arguing on brief that the court was

without "statutory authority" to entertain a collateral attack on

the order and "retroactively modify" its terms at "a show cause

hearing."   The Division further contended that the court

erroneously determined that Diana L. Breakiron (mother) had

fraudulently identified appellee as father of the child, "based

solely upon genetic test results" and "without allowing any

testimony" on the issue.   Finding the Division procedurally barred

from challenging the court's prospective vacation of the order,

but agreeing that the retroactive discharge of accrued arrearages

was error, we affirm in part and reverse in part.

                                 I.

     The pertinent facts, before this Court on a "Written

Statement of Facts," are uncontroverted.   On July 12, 1995,

Diana L. Breakiron gave birth to D.    Shortly thereafter, on July

31, 1995, appellee executed a "Declaration of Paternity" and

related "Parental Rights and Responsibilities Statement,"

acknowledging, under oath, that he fathered D.   Also on July 31,

the Division entered an "Administrative Support Order" (ASO) in

accordance with Code § 63.1-249, et seq., which "obligated"

appellee, in pertinent part, to pay child support of $65 per month

to the Commonwealth, through the Division, as reimbursement for

Aid to Dependent Children (ADC) benefits to mother, as "Custodial

Parent" of D.   On August 21, 1995, the Division entered a revised



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ASO, which increased appellee's monthly support obligation to

$241.

        Appellee waived "formal service" of the initial ASO and was

properly served with the second order.    Both expressly advised

appellee of his right to "object to [the] order," receive an

administrative "appeal hearing" and, if aggrieved by the resulting

"decision," pursue "an appeal de novo to the [J&D] court,"

specifying the procedures necessary to such remedies.    Each ASO

also notified appellee that the subject "obligation[s] and

arrears" were "considered legally established" and "create[d] a

judgment by operation of law."    Appellee appealed neither order,

and both became "effective" pursuant to Code § 63.1-252.1.

        On or about January 30, 1997, the Division filed a "Motion

for Show Cause Summons" in the Gloucester County Juvenile and

Domestic Relations District Court (J&D court), alleging that the

court "should . . . imprison[], fine[] or otherwise punish[]"

appellee for non-compliance with the revised ASO, with an accrued

arrearage of $3,446.69, and requesting the "issuance of a show

cause" against him.    In response, the J&D court issued a summons

requiring appellee to appear on a date specified and "show cause,

if any," in defense of the Division's action.

        Appellee appeared before the J&D court at the scheduled

hearing, denied that he was the father of the child, and requested

"DNA blood testing."    The court granted father's motion and

recessed the hearing pending completion of the necessary

                                 - 3 -
procedures and receipt of the attendant report.   The hearing

re-convened on June 23, 1997, and the test results, received into

evidence, disclosed that appellee was "not the biological father

of [D]."   Accordingly, the court dismissed the show cause and

vacated the alleged arrears.

     The Division appealed to the trial court and, at a related

hearing on October 15, 1997, "advised the court that the issue on

appeal was whether [appellee] was responsible for arrears that

accrued from the entry of the [ASO] until the determination he was

not the biological father" of D.   The Division conceded that

appellee was not the father but disputed that mother had committed

"a fraud" in naming him.   Nevertheless, the court declined the

Division's request to present testimony on the issue, and the

Division proffered no evidence for the record.    The various

documentary proofs, including the reported test results, were

received into evidence, and the court, after finding that appellee

was not the father of the child and that mother had "committed a

fraud upon the court," vacated the ASO, expressly relieving

appellee from all related arrearages.

     On appeal to this Court, the Division complains that the

trial court, acting only upon the Division's "motion to show

cause," lacked authority to, at once, vacate the existing ASO and

forgive accrued arrearages.    Further, the Division contends that

the court erroneously determined the mother "had committed fraud



                                - 4 -
based solely on the . . . test results that excluded [appellee] as

the child's father," without permitting additional evidence.

                                  II.

     Code § 63.1-249 declares "it . . . the purpose of [Chapter

13, Title 63.1] to promote the efficient and accurate collection,

accounting and receipt of support for financially dependent

children and their custodians, and to further the effective and

timely enforcement of such support." 1   Accordingly, Code

§ 63.1-250.1(A) provides, in pertinent part, that "[i]n the

absence of a court order, the Department of Social Services shall

have the authority to issue [an ASO] directing the payment of

child . . . support[.]"   "The [Division] shall initiate [such]

proceedings by issuing notice containing the [ASO]," which "shall

be served upon the debtor," and the ASO "shall become effective

unless timely contested" by "answer" and related "administrative

hearing."   Code § 63.1-252.1.   A party aggrieved by "the decision

of the hearing officer" may appeal, de novo, "to the [J&D court]

of the jurisdiction wherein appellant resides."     Code

§ 63.1-268.1.

     An ASO "shall have the same force and effect as a court

order."   Code § 63.1-258.3; see Code § 63.1-250.   However, "[t]he

existence of an [ASO] shall not preclude either an obligor or


     1
       We have previously determined that the statutory ASO
scheme satisfies due process. See Morris v. Commonwealth, Dep't
of Soc. Servs., 13 Va. App. 77, 408 S.E.2d 588 (1991).


                                 - 5 -
obligee from commencing appropriate proceedings in a [J&D court]

or a circuit court," Code § 63.1-252.1, and "any order issued by a

court of this Commonwealth supercedes an administrative order."

Code § 63.1-258.3.

     "[I]t is generally held that '[i]n the absence of fraud,

accident or surprise, a judgment, when entered and no appeal

taken, is conclusive, even though the judgment is manifestly wrong

in law or fact.'"    Slagle v. Slagle, 11 Va. App. 341, 346, 398

S.E.2d 346, 349 (1990) (citation omitted).     However, "a judgment

obtained by 'intrinsic fraud' is . . . voidable and can be

challenged . . . by direct appeal or by a direct attack in an

independent proceeding."    Peet v. Peet, 16 Va. App. 323, 326, 429

S.E.2d 487, 490 (1993) (citations omitted); see Slagle, 11 Va.

App. at 348, 398 S.E.2d at 350.   "'Intrinsic fraud' includes

perjury . . . or other means of obscuring facts presented before

the court and whose truth or falsity as to the issues being

litigated are passed upon by the trier of fact."     Peet, 16 Va.

App. at 326-27, 429 S.E.2d at 490.      A party must act immediately

upon the discovery of intrinsic fraud "to rectify the alleged

wrong and cannot wait to assail the judgment collaterally whenever

it is enforced."    Id. at 327, 429 S.E.2d at 490.

     However, the statutory scheme investing the Division with

authority to "issue" an ASO clearly contemplates a command of less

dignity than a judicially countenanced support order.     Code

§ 63.1-252.1 expressly preserves the right of either an "obligor

                                - 6 -
or obligee" of an ASO to, at any time during the "existence" of

such order, commence "appropriate proceedings" in a J&D or circuit

court.   Commensurate with the parties' right to access the

judiciary, Code § 63.1-258.3 subordinates an ASO to "any order

issued by a court of this Commonwealth."    Thus, an ASO remains

always vulnerable to displacement by a superceding judicial act

and both the obligor and obligee are entitled to initiate

proceedings to obtain such relief, without the necessity of

proving fraud, accident or surprise.

     The instant record clearly discloses that appellee commenced

no proceedings in either the J&D or trial court to right any wrong

that allegedly inhered in the subject ASO, but relied instead upon

a collateral attack in defense of the Division's enforcement

procedures.   Nevertheless, the J&D court entertained appellee's

procedurally flawed attack on the ASO, determining that appellee

did not father the child, based upon the paternity testing, and

vacated the ASO, discharging the arrears.

     On appeal to the trial court, the Division conceded that

appellee was not the father and "advised the court that the issue

on appeal was whether [appellee] was responsible for arrears that

accrued from the entry of the [ASO] until the determination he was

not the biological father of the child."    (Emphasis added).

Moreover, the record does not disclose a proper objection by the

Division when the court also prospectively vacated the ASO.     The

"Written Statement of Facts" recites no objection by the Division

                               - 7 -
to such ruling, and objections appended by the Division to the

final order address only the retroactive discharge of arrears, and

related evidentiary issues. 2   "A matter not in dispute before the

trial court will not be considered for the first time on

appeal[.]"   Connelly v. Commonwealth, 14 Va. App. 888, 891, 420

S.E.2d 244, 246 (1992) (citing Rule 5A:18).    Thus, we decline to

address the Division's challenge to that portion of the order

prospectively vacating the ASO.    See Aviles v. Aviles, 14 Va. App.

360, 364, 416 S.E.2d 716, 718 (1992) (court may entertain

procedurally defective attack on decree, absent proper objection).

     With respect to the remainder of the order, which relieved

appellee from arrears that had accrued from the entry of the ASO,

the Division correctly argues that he failed to appeal the ASO at

the inception, and, thereafter, did not commence an "appropriate

[judicial] proceeding" to supercede the order.    Under such

circumstances, appellee's collateral attack in defense of Division

efforts to enforce the arrears was ill founded, and the court

erred in retroactively discharging the accrued obligation.

     Accordingly, we affirm the order of the trial court that

vacates the ASO prospectively, but reverse the discharge of




     2
       The Division also failed to proffer for the record any
evidence that was precluded by the disputed rulings. We,
therefore, have "'no basis to decide whether the evidence was
admissible.'" Zelenak v. Commonwealth, 25 Va. App. 295, 302, 487
S.E.2d 873, 876 (1997) (en banc) (citation omitted).

                                - 8 -
arrearages previously accrued and remand the proceedings for

determination of such issue.

                                             Affirmed, in part,
                                             reversed and
                                             remanded, in part.




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