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Bergaust v Flaherty

Case No. 0650-10-4 (VA Ct. App., Jan. 11, 2011)

Jane Louise Bergaust (“Bergaust”) appeals the Fairfax County Circuit Court’s dismissal of her petition for child support. Bergaust alleges the circuit court erred in finding it did not have personal jurisdiction over the appellee, Edward Flaherty (“Flaherty”). For the reasons that follow, we affirm the circuit court.

I. Background

In June of 1994, Bergaust traveled to Giverny, France, just outside of Paris, to visit her mother during the opening of the American Museum. While there, Bergaust met Flaherty, an American filmmaker then living in Paris, who was hired to film the event. Flaherty invited Bergaust to lunch, and she agreed. Bergaust met Flaherty for a “nice long lunch,” during which they got to know each other. They cultivated “an unusual connection.”

Flaherty kept in touch with Bergaust after she returned to her home in Virginia. Flaherty called Bergaust as soon as she got back to Virginia, and then “he occasionally would call” thereafter. Over the next 18 months, the relationship continued to develop. Bergaust returned to France on December 1, 1995 to visit Flaherty. During her visit, Bergaust stayed at Flaherty’s apartment. She also shared his bed. Bergaust returned to Virginia a few days before Christmas. Shortly thereafter, she discovered she was pregnant.

Because she had not had sexual intercourse with any other person, Bergaust called Flaherty and explained that the baby was his. Although Flaherty was “a little bit shocked,” he said he would do whatever Bergaust wanted to do and he promised to support her “in any way that he possibly could.” Flaherty called Bergaust at least twice a week during her pregnancy, and from the very first conversation he acknowledged his paternity. Flaherty offered to secure an abortion pill for Bergaust. He also encouraged her to attend a support group for adoptive birth mothers. During all of these conversations, Flaherty never denied having parented the child; rather, he consistently referred to the forthcoming child as “our baby.”


Judge(s): Robert J. Humphreys
Jurisdiction: Court of Appeals of Virginia
Trial Court Judge(s)
Jan Brodie

Court of Appeals Judge(s)
Rossie Alston, Jr.
Robert Humphreys
Elizabeth McClanahan

Appellant Lawyer(s) Appellant Law Firm(s)
Zachary Adams Patton Boggs LLP
Benjamin Chew Patton Boggs LLP
Christopher Wenger Patton Boggs LLP

Appellee Lawyer(s) Appellee Law Firm(s)
Nathan Rozsa Surovell Isaacs Petersen & Levy PLC
Scott Surovell Surovell Isaacs Petersen & Levy PLC



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"`statutory interpretation is a question of law which we review de novo and we determine 105, 113, 435 s.e.2d 652, 657 (1993)). "the purpose of our `long arm statute' is to assert out as the father. while the act of conceiving a child elsewhere may ultimately give rise to a acknowledged his parentage of c.b. while in virginia, the circuit court erred in finding it could harmonizes best with the context, and promotes in the fullest manner the apparent policy and apply only to both parties responsible for actually conceiving a child in virginia. from the very first conversation he acknowledged his paternity. flaherty offered to secure an within ten months after the date of the solemnization of the (2010) (quoting colbert v. commonwealth, 47 va. app. 390, 394, 624 s.e.2d 108, 110 (2006)). the minimum contacts required by due process for the exercise of personal jurisdiction over him. unless they are ambiguous or would lead to an absurd result.'" grafmuller v. commonwealth, the honorable r. terrence ney presided over flaherty's pre-trial motion to dismiss for 754, 759, 685 s.e.2d 655, 657 (2009)). "furthermore, we must give effect to the legislature's a statute is to be preferred over any curious, narrow, or strained construction." commonwealth testified that flaherty was "enamored with" c.b. he "couldn't get over her beauty, and he was united states, over nonresidents who engage in some purposeful activity in virginia." danville just absolutely enchanted with her." this visit was memorialized in pictures. bergaust's sole assertion on appeal is that the circuit court erred in finding it did not have - 7 - apartment. she also shared his bed. bergaust returned to virginia a few days before christmas. act in siring the child, and not his later acknowledgment of the child, that gave rise to the cause 84 f.3d 132, 135-36 (4th cir. 1996)). once the long arm statute is satisfied, the question simply reach of virginia's long arm statute. thus, the resolution of this case turns on the meaning of the extramarital affair with brian o'rourke, the best man at the couple's wedding, and conceived a - 11 - 8.01-328.1(a)(8)(iii). we further hold that because the circuit court did not have personal they got to know each other. they cultivated "an unusual connection." pregnancy (which took place in france), rather than his subsequent act of his acknowledgment of on june 11, 2009, bergaust appealed the j&drc's dismissal of her petition to the circuit bergaust noted this appeal. word "mothered" along with "conceived or fathered," in order to encompass the non-custodial personal jurisdiction over flaherty under virginia's long arm statute, code to be notified of a proceeding for adoption of, or termination of person sought to be bound.'" harrel v. preston, 15 va. app. 202, 204, 421 s.e.2d 676, 677 its plain language, reach those who may have conceived a child elsewhere and later 145, 638 s.e.2d 124, 126 (2006) ("during the marriage, beginning in 1998, tammy had an exercise of jurisdiction over flaherty comports with due process. we review such issues of parental rights regarding, a child that he may have fathered shall argued by teleconference in adopting code 8.01-328.1, "the legislature evinced a policy of extending the jurisdiction of jurisdiction. the court allowed the parties to submit additional briefs and then issued a letter extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the lack of personal jurisdiction in the circuit court. conceived a male child."); surles v. mayer, 48 va. app. 146, 166, 628 s.e.2d 563, 572 (2006) assoc., 776 f.2d 484 (4th cir. 1985). since mother has filed a petition seeking to establish paternity in virginia. while his acknowledgment may be evidence of his parentage, it is only his father; whereas the term `conceived' refers to the act of the mother becoming pregnant." the satisfy virginia's long arm statute or otherwise comport with due process. the circuit court part: jurisdiction over flaherty under the long arm statute, we need not decide whether flaherty out and follow the true intent of the legislature, and to adopt that sense of the words which in case law, at times, in gender-neutral terms. see, e.g., monroe v. angelone, 323 f.3d 286, 305 (emphasis added). also, code 63.2-1250(a), the putative father registry, provides in pertinent requirement in the long arm statute. had the legislature intended that result, it could have done (4th cir. 2003) ("by february of 1991, burde and krystyna were actively trying to conceive a describing the male's participation in pregnancy, elsewhere in the code of virginia. for s.e.2d 233, 234 (1986) ("in march 1978, the plaintiff, in her mid-thirties, and her husband so quite easily and specifically. see, e.g., barnes v. commonwealth, 33 va. app. 619, 628, 535 statutory and constitutional interpretation under a de novo standard of review. see cabaniss v. affirmed. p'shp., 255 va. 335, 340, 497 s.e.2d 335, 338 (1998). our task requires that we give "proper 828. thus, it is clear that the plain meaning of the words "conceived" and "fathered" refer to the if flaherty, in fact, "conceived or fathered" a child in this commonwealth, he is within where, as here, "a statute contains no express definition of a term . . . [we] infer the marriage . . . a decree of annulment may be entered upon proof, on act of getting pregnant (since conception cannot occur without the participation of both a male from which [the court] could award any more than the presumptive minimum child support ordinary meaning of the term `fathered' used in code 8.01-328 is to beget or to procreate as the terms "conceived" and "fathered" to mean bergaust's act of becoming pregnant and flaherty's father's presence, and perhaps even his acknowledgment of paternity, in the commonwealth, we personal jurisdiction over flaherty exceeds the limits of due process under the united states becomes "whether the defendant has sufficient `minimum contacts with [the forum] such that the a forty-hour training program for each individual type of breath test equipment, then it would processing research, inc. v. larson, 686 f. supp. 119, 121 (e.d. va. 1988). it is only "if any of over child support matters, provides in pertinent part, wife, had fathered a child born to a woman other than the wife pregnant with: be with (child or young)," or "to beget." webster's third new international jurisdiction over flaherty. 1 (citing carmichael v. snyder, 209 va. 451, 456, 164 s.e.2d 703, 707 (1968)). such purposeful early conversations, flaherty expressly referred to c.b. as "our daughter." in march of 1997, b. due process the word "conceived," at times, in gender-specific terms. see, e.g., in re a. h. robins co., 131 flaherty under virginia's long arm statue, we need not consider further whether the exercise of flaherty's motion to dismiss. in june of 1994, bergaust traveled to giverny, france, just outside of paris, to visit her when c.b. was about seven months old, flaherty came to virginia for a visit. he wanted to see b.r. 292, 302 (e.d. va. 1991) ("she became pregnant and conceived a child"); scarpa v. melzig, 153, 160, 515 s.e.2d 808, 811-12 (1999) ("if the legislature had intended that operators undergo who by that time had not heard from flaherty in several months, expressed her anger and such decisions normally know the identity of the mother, because she gave birth to the child; but scott a. surovell (nathan d. rozsa; surovell markle isaacs & word "fathered" in describing the male's participation in the act of conception. "fathered" includes "to make oneself the father or author of by acknowledgment." id. at 828. term and treated them as synonyms. essentially, the circuit court construed the definition of the mother of a child living in this commonwealth. we also note that bergaust's broad and oral argument, the circuit court denied flaherty's motion and found that it did have personal held that personal jurisdiction "does not lie under [code 8.01-328.1(a)(8)(iii)]." having . . . (iii) shown by personal conduct in this commonwealth, - 5 - required under va. code ann. 20-108.2(b)." the circuit court, thus, dismissed the case by - 8 - haven advocate, 315 f.3d 256, 261 (4th cir. 2002) (quoting stover v. o'connell assocs., inc., ("if the long-arm statute applies, the court must then determine whether asserting personal upon the conclusion of his visit, flaherty returned to france. he initially continued to violation of code 18.2-48, it would have done so."); reynolds v. commonwealth, 30 va. app. intention as expressed by the language used unless a literal interpretation of the language would grammatical effect . . . to the arrangement of words in" the statute, harris v. commonwealth, 142 upon the conclusion of the evidence, the circuit court re-visited the issue of personal of action in the commonwealth's courts. thus, we hold the long arm statute simply does not, by flaherty alternatively contends on appeal that, even if virginia's long arm statute is directly or by an agent, as to a cause of action arising from the when . . . at the time of the marriage, the wife, without the knowledge of the husband, was with child by some person other him under the due process clause of the united states constitution. we, thus, affirm the after that, flaherty called bergaust at least twice a week to talk about the baby. during these - 4 - must be measured for a fit against each alleged part of the long arm statute, va. code photographs taken of his visit to mclean in 1997. she expressed her excitement at seeing her over time. flaherty last phoned bergaust on august 1, 1997, c.b.'s first birthday. bergaust, propagate, generate, [or] reproduce." id. at 1809. irritation over flaherty's lack of involvement in c.b.'s life. flaherty ended the call; he never present: judges humphreys, mcclanahan and alston plywood corp. v. plain & fancy kitchens, inc., 218 va. 533, 534, 238 s.e.2d 800, 802 (1977) - 9 - register with the putative father registry before the birth of the that he possibly could." flaherty called bergaust at least twice a week during her pregnancy, and bergaust's daughter, c.b., was born in arlington, virginia, on august 1, 1996. bergaust bergaust to lunch, and she agreed. bergaust met flaherty for a "nice long lunch," during which dictionary 469 (1993). the verb "fathered" means "to make oneself the father of: beget." id. at call bergaust "once every two weeks or so," but then the frequency of his phone calls decreased juvenile and domestic relations district court (j&drc), seeking establishment of paternity and than the husband, or where the husband, without knowledge of the complaint of the party aggrieved. 237 va. 509, 511, 379 s.e.2d 307, 308 (1989) ("in late march 1984, the plaintiff conceived and patton boggs, l.l.p., on briefs), for appellant. jurisdiction over hunter-douglas thereunder comports with the due process clause of the activity includes any "single act by a nonresident" giving "rise to a cause of action" in our courts. no part will be considered meaningless unless absolutely necessary." hubbard, 225 va. at 340, levy, plc, on brief), for appellee. court of appeals of virginia to apply only to the actions of the female in getting pregnant. jane louise bergaust ("bergaust") appeals the fairfax county circuit court's dismissal became pregnant, and a child was born at full term."); o'rourke v. vuturo, 49 va. app. 139, on march 16, 2009, bergaust filed a uniform support petition in the fairfax county s.e.2d 706, 710 (2000) ("[i]f the legislature had intended to limit code 18.2-32 to abduction in phrase "conceived or fathered" in code 8.01-328.1(a)(8)(iii). the circuit court adopted the - 12 - 464, 452 s.e.2d 682, 685 (1995). "[e]very part of a statute is presumed to have some effect and january 11, 2011 child support. flaherty defended the action on the ground that the j&drc lacked personal france on december 1, 1995 to visit flaherty. during her visit, bergaust stayed at flaherty's in this case, because we hold the circuit court did not have personal jurisdiction over act of making her pregnant. the circuit court then found that since bergaust literally became child support decisions, the first inquiry involves identification of the parents. courts making opinion, dated march 3, 2010, in which it found the circuit court did not have personal in this case, because the terms "conceived" and "fathered" are not defined statutorily, we ii. analysis not exercise personal jurisdiction over him for purposes of bergaust's child support petition. conclude that, given the words it chose, the general assembly intended the long arm statute to jurisdiction over flaherty. the circuit court held that flaherty's contacts with virginia did not rather, he consistently referred to the forthcoming child as "our baby." from presenting any evidence on his own behalf. flaherty did not attend the trial. flaherty kept in touch with bergaust after she returned to her home in virginia. flaherty satisfied by the circumstances presented in this case, the record contains insufficient evidence of immediately called flaherty to tell him the news. flaherty was "elated." he was "very excited." bergaust asserts the court's gender specific interpretation of the phrase "conceived or i. background the mere acknowledgment of parentage by a nonresident, it presumably would have included the sustained." id. 497 s.e.2d at 338 (citation omitted). at all times, "[t]he plain, obvious, and rational meaning of not, in the words of the statute, "father[] a child in this commonwealth." accordingly, the court - 10 - (1992) (quoting may v. anderson, 345 u.s. 528, 533 (1953)). to obtain the requisite personal 8.01-328.1. if no fit is found, the inquiry is at an end: there is no personal jurisdiction." shortly thereafter, she discovered she was pregnant. as alleged by affidavit, that the person conceived or fathered a flaherty, on the other hand, maintains the circuit court correctly interpreted the statute in gender specific, synonymous terms, and reasons that virginia's long arm statute extends only to persons mutual ins. co., 244 va. 68, 418 s.e.2d 341 (1992); virginia beach v. roanoke river basin cooperate with discovery, he was prohibited from objecting to bergaust's evidence at trial and "it is well settled that a plaintiff is not entitled to `a judgment in personam to a court may exercise personal jurisdiction over a person, who acts because she had not had sexual intercourse with any other person, bergaust called objects of the legislature.'" andrews v. creacey, 56 va. app. 606, 617, 696 s.e.2d 218, 223 opinion by (emphasis added). the use of the word "fathered" in these code sections relates strictly to the bergaust and c.b. flaherty arrived at bergaust's house in mclean at around noon and stayed child or within 10 days after the birth. definition of those two words advanced by flaherty, and found that the "plain, common and - 3 - actions of the female in getting pregnant, as well as to the actions of a couple in creating a fetus, current address in france. mothers. during all of these conversations, flaherty never denied having parented the child; father to bergaust. berguast did some research on the film and was able to ascertain flaherty's the long arm provisions fit [that] a further inquiry must be made before jurisdiction can be often we can only ascertain the identity of the father by the fact that he has publicly held himself - 6 - american filmmaker then living in paris, who was hired to film the event. flaherty invited interpretation of the statute would, contrary to its plain wording, create a mere residency person's: that flaherty's contacts with the commonwealth satisfy virginia's long arm statute and that the statute.'" cabaniss, 46 va. app. at 601, 620 s.e.2d at 561 (quoting price v. price, 17 va. app. cabaniss, 46 va. app. 595, 620 s.e.2d 559 (2005). birth to: breed." id. at 198. to "procreate" means "to produce (offspring) by generation: beget, jurisdiction over an out-of-state defendant in a claim for child support, the record must clearly the case, then, proceeded to trial. because flaherty refused to this is not to say that bergaust's argument is entirely without merit. indeed, in rendering a. virginia's "long arm" statute court. flaherty again moved to dismiss the case for lack of personal jurisdiction. after briefing follow, we affirm the circuit court. until around five. during this visit, flaherty held c.b. and played with her. bergaust later with the constitutional inquiry, and the two inquiries essentially become one.'" young v. new maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" circuit court concluded that the general assembly intended a gender specific definition to each ("surles and james' mother conceived and gave birth to another child."). case law also treats example, code 20-89.1(b) addresses suits to annul marriage, and provides in pertinent part, it is true, as bergaust contends, that one plain and ordinary meaning of the verb may be asserted against him . . . ." therefore, the statute does not confer jurisdiction over claims 57 va. app. 58, 61, 698 s.e.2d 276, 278 (2010) (quoting wright v. commonwealth, 278 va. order dated march 3, 2010. personal jurisdiction over the appellee, edward flaherty ("flaherty"). for the reasons that jan l. brodie, judge to that end, code 8.01-328.1(a)(8), the statutory provision governing long arm control constitution. see verosol b.v. v. hunter douglas, inc., 806 f. supp. 582, 589 (e.d. va. 1992) concedes the act of conception took place in france. she simply maintains that because flaherty 104, 639 s.e.2d 174, 178 (2007). "if a statute is subject to more than one interpretation, we must * * * * * * * mother during the opening of the american museum. while there, bergaust met flaherty, an judgment of the circuit court. id. at 534-35, 238 s.e.2d at 802 (citation omitted). - 2 - id. (alteration in original) (quoting int'l shoe co. v. washington, 326 u.s. 310, 316 (1945)). jane louise bergaust thereafter. over the next 18 months, the relationship continued to develop. bergaust returned to acknowledged paternity in the commonwealth. edward j. flaherty v. record no. 0650-10-4 judge robert j. humphreys indeed, code 8.01-328.1(c) expressly provides "[w]hen jurisdiction over a person is in the summer of 2008, c.b., who was then almost twelve years old, was watching a must afford the terms their plain and ordinary meaning. to "conceive" means "to become 238 va. 148, 153, 380 s.e.2d 910, 912 (1989). thus, "`the statutory inquiry necessarily merges and a female) and the word "fathered" means the acknowledgment of paternity. bergaust based solely upon this section, only a cause of action arising from acts enumerated in this section who actually conceive a child here in the commonwealth. we agree with the argument however, if the general assembly intended by the commonwealth's long arm statute to include act of procreation. indeed, the word "beget" means "to procreate as the father: sire," or "to give jurisdiction over him. the j&drc agreed with flaherty and, on june 2, 2009, granted child in this commonwealth[.] our analysis is not altered by bergaust's observation that the word "conceived" is treated maintained sufficient minimum contacts with virginia justifying the exercise of jurisdiction over child."); gallagher v. duke university, 852 f.2d 773, 775 (4th cir. 1988) ("relying on this personal jurisdiction over flaherty. bergaust contends, contrary to the circuit court's findings, "personal jurisdiction analysis is a two step process. first, each alleged cause of action have said so in the statute."). documentary on television in which flaherty appeared. c.b. recognized flaherty from the fathered" amounts to plain error. bergaust suggests instead that the word "conceived" means the christopher a. wenger (benjamin g. chew; d. zachary adams; from the circuit court of fairfax county except as otherwise provided in subsection c, a man who desires said he would do whatever bergaust wanted to do and he promised to support her "in any way its courts to the maximum extent permitted" by due process. caldwell v. seaboard s. r., inc., for these reasons, we hold the circuit court did not err in interpreting the terms result in a manifest absurdity." conyers v. martial arts world of richmond, inc., 273 va. 96, act of conceiving the child. it, thus, appears that the general assembly consistently uses the called bergaust as soon as she got back to virginia, and then "he occasionally would call" of her petition for child support. bergaust alleges the circuit court erred in finding it did not have parentage, her cause of action arose from the father's participation in the act creating the fourteenth amendment." (emphasis added)). we, therefore, decline flaherty's invitation to jurisdiction, to the extent permissible under the due process clause of the constitution of the v. zamani, 256 va. 391, 395, 507 s.e.2d 608, 609 (1998). ultimately, "we endeavor `to search we believe the use of the word "conceived" as used in code 8.01-328.1(a)(8)(iii) was intended iii. conclusion advice, the gallaghers conceived a second child."); modaber v. kelley, 232 va. 60, 62, 348 address the matter further. indicate "`at a minimum, a connection to virginia that is recognized by virginia's long-arm further opined that, even if it did have jurisdiction, there "was insufficient evidence presented child."). whereas the word "conceived" as used in case law applies interchangeably to the legislature's intent from the plain meaning of the language used." hubbard v. henrico ltd. apply the interpretation that will carry out the legislative intent behind the statute." id. advanced by flaherty. 1 flaherty and explained that the baby was his. although flaherty was "a little bit shocked," he abortion pill for bergaust. he also encouraged her to attend a support group for adoptive birth indeed, the general assembly appears to prefer the use of the word "fathered," in that do not arise from a defendant's acts in the state. see gallop leasing corp. v. nationwide called again. va. 620, 624, 128 s.e. 578, 579 (1925), and we must presume that "the legislature understood "conceived" or "fathered" as used in code 8.01-328.1(a)(8)(iii) in gender specific terms and in the basic rules of grammar" when drafting the statute, frere v. commonwealth, 19 va. app. 460, for the foregoing reasons, we hold the circuit court did not err in finding it did not have the legislative intent from the words used in the statute, applying the plain meaning of the words pregnant in france, flaherty was beyond the reach of virginia's long arm statute because he did limiting the definitions of those terms to the act of conception.

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