                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

K.D.C.,

Respondent Below, Petitioner                                                       FILED

                                                                                  April 12, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 11-1788 (Jefferson County No. 97-D-46)                             SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

F.V.L.,

Petitioner Below, Respondent


                              MEMORANDUM DECISION
        Petitioner K.D.C.,1 by counsel Sherman L. Lambert Sr., appeals the Circuit Court of
Jefferson County’s “Order Denying Petition for Appeal,” entered November 15, 2011, that
upheld the Family Court of Jefferson County’s dismissal of petitioner’s second motion to reverse
a l997 paternity finding on the grounds of alleged paternity fraud. Respondent-mother F.V.L., by
counsel Cynthia Scales, has filed a response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        B.C., the child at issue in this appeal, was born on September 19, 1996, to respondent-
mother. That same day, petitioner acknowledged paternity of B.C. by signing a paternity
affidavit. The parties have never been married.

        In 1997, respondent-mother filed an action against petitioner for child support. Petitioner
was represented by counsel at the hearing on the matter. The “Final Order” adjudging petitioner
to be the B.C.’s father was entered on June 18, 1997. Petitioner did not appeal the order.

        Six years later, in 2003, petitioner conducted a DNA test on himself and B.C. without the
permission of the family court or respondent-mother. The test revealed that B.C. was not
petitioner’s biological daughter. On May 2, 2003, petitioner filed a “paternity fraud” petition in
family court. The family court appointed a guardian ad litem (“GAL”) for B.C. and sent the
parties to mediation. The mediation resulted in a visitation and custody agreement. In December
of 2004, the GAL reported that petitioner was B.C’s “psychological” father and that it was not in
B.C.’s best interest for paternity to be disproven pursuant to Michael K.T. v. Tina L.T., 182
W.Va. 399, 387 S.E.2d 866 (1989).


1
  In keeping with the Court’s policy of protecting the identity of minors, the parties and the child
at issue in this appeal, B.C., will be referred to by their initials.
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        At the hearing on petitioner’s paternity fraud petition, respondent-mother testified that
based upon the gestational-age estimates provided by her obstetrician, she believed that
petitioner was the child’s father. In its “Final Order” entered on January 20, 2004, the family
court denied petitioner’s paternity fraud challenge on the grounds that respondent-mother had not
intended to deceive petitioner about the child’s paternity. Petitioner did not appeal the order.

        On September 22, 2010, seven years after petitioner filed his first paternity fraud petition,
and just before B.C.’s fourteenth birthday, petitioner filed a motion to re-open his paternity case,
to set aside the 2004 “Final Order,” and to implead the child’s putative biological father into the
paternity case. Petitioner argued that he should not have to pay child support because
respondent-mother had committed paternity fraud, his 2004 counsel was ineffective, and it was
in the child’s best interest to know her biological father.

       In its January 3, 2011, order, the family court ruled that the issues raised by petitioner had
been previously adjudicated; that petitioner’s motion to implead the child’s putative biological
father was without merit; and that in petitioner’s 2004 paternity fraud petition, he had failed to
implead the child’s biological father as required pursuant to Rule 19 of the Rules of Civil
Procedure.

       Petitioner appealed to the circuit court. On June 24, 2011, the circuit court vacated the
family court’s order on the grounds that the family court failed to rule on petitioner’s motion to
implead B.C.’s putative biological father and failed to answer the “salient question regarding
application of the doctrine of ‘res judicata’” in regard to “whether the two actions involve either
the same parties or persons in privity with those parties.”

        The family court entered its “Amended Order After Remand” on July 11, 2011, in which
it concluded that the doctrine of res judicata did apply to the determination of paternity between
petitioner and respondent, but did not apply between the putative biological father and B.C.
Should the putative biological father and B.C. seek to challenge petitioner’s prior adjudication of
paternity. The family court also concluded that petitioner was time-barred from challenging his
1996 paternity acknowledgement.

       On August 9, 2011, petitioner appealed to the circuit court on the ground that, on remand,
the family court failed to follow the instructions contained in the circuit court’s June 24, 2011
order. On November 15, 2011, the circuit court, in its “Order Denying Appeal,” ruled that it
could find no legal precedent that would allow petitioner to re-litigate paternity more than a
decade after he had acknowledged paternity and more than six years after his first paternity fraud
challenge was denied.

        On appeal, petitioner argues that the circuit court erred in denying his appeal of the
family court’s order because respondent-mother committed fraud in naming petitioner as the
child’s father.

              In reviewing a final order entered by a circuit judge upon a review of, or
       upon a refusal to review, a final order of a family court judge, we review the
       findings of fact made by the family court judge under the clearly erroneous

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       standard, and the application of law to the facts under an abuse of discretion
       standard. We review questions of law de novo.

Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

        Having reviewed the circuit court’s “Order Denying Petition for Appeal,” entered
November 15, 2011, we find the circuit court was correct in its reasoning and, as such, did not
abuse its discretion in denying petitioner’s appeal of the family court’s July 11, 2011, “Amended
Order After Remand.” Therefore, we hereby adopt and incorporate the circuit court’s well-
reasoned findings and conclusions in regard to the assignment of error raised in this appeal. The
Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

                                                                                       Affirmed.


ISSUED: April 12, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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