Bergaust v. Flaherty

Court of Appeals of Virginia · Family Law

Family LawPersonal JurisdictionChild SupportPaternityVirginia Long-Arm Statutepersonal jurisdictionlong-arm statuteCode § 8.01-328.1(A)(8)(iii)

Facts

Bergaust, a Virginia resident, met Flaherty in France and later returned there in December 1995, where they had sexual intercourse; after returning to Virginia, she discovered she was pregnant. Flaherty repeatedly acknowledged during phone calls that he was the father, referred to the unborn child as "our baby" and later to C.B. as "our daughter," and he visited Virginia once in 1997 to see Bergaust and the child. In 2009, Bergaust filed a support petition in Virginia seeking to establish paternity and child support. The conception itself occurred in France, not in Virginia.

Issue

Whether Virginia courts may exercise personal jurisdiction under Code § 8.01-328.1(A)(8)(iii) over a nonresident alleged father when the child was conceived outside Virginia but the alleged father later acknowledged paternity while in or connected to Virginia. More specifically, the issue was whether "conceived or fathered a child in this Commonwealth" includes later acknowledgment of paternity in Virginia.

Rule

Under Code § 8.01-328.1(A)(8)(iii), the terms "conceived" and "fathered" refer to the act of procreation, used in gender-specific terms: "conceived" applies to the female's becoming pregnant and "fathered" applies to the male's participation in conception. The statute does not extend personal jurisdiction to a nonresident who conceived a child elsewhere and later acknowledged paternity in Virginia, because the cause of action arises from the act creating the pregnancy, not from later acknowledgment.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Leah Moreno lives in Richmond, Virginia. While attending a music festival in Nashville, Tennessee, she had sexual intercourse with Owen Burke, a resident of Kentucky, and later became pregnant; after the child was born in Virginia, Owen mailed a notarized letter to Leah in Richmond admitting he was the father and promising support.

If Leah files in Virginia to establish paternity and child support under Code § 8.01-328.1(A)(8)(iii), what is the strongest argument against personal jurisdiction over Owen?

Explanation. Under the majority’s reading of Code § 8.01-328.1(A)(8)(iii), “conceived” and “fathered” refer to the act of procreation, not a later acknowledgment of paternity. Because the support action arises from the act creating the pregnancy, jurisdiction depends on where conception occurred. Owen’s later letter may be evidence of parentage, but it is not the jurisdiction-conferring act. (Derived from Bergaust v. Flaherty (n.d.).)