Princeton, West Virginia
Attorney for the Child Advocate Office
John P. Anderson
Princeton, West Virginia
Attorney for Timothy P. Pentasuglia
Henry L. Harvey
Guardian ad Litem for Travis Wade Cline
Princeton, West Virginia
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUSTICE MILLER sitting by temporary assignment.
1. "The dismissal with prejudice of a paternity action
initiated by a mother against a putative father of a child does not
preclude the child, under the principle of res judicata, from
bringing a second action to determine paternity when the evidence
does not show privity between the mother and the child in the
original action nor does the evidence indicate that the child was
either a party to the original action or represented by counsel or
guardian ad litem in that action." Syl. Pt. 5, State ex rel. Div.
of Human Servs. v. Benjamin P.B., 183 W. Va. 220, 395 S.E.2d 220
2. The Revised Uniform Reciprocal Enforcement of Support Act, West Virginia Code §§ 48A-7-1 to -41 (1995), enables an obligee in one state to establish the paternity of an obligor in this state.
3. Under West Virginia Code § 48A-7-26 (1995), a circuit court in a RURESA proceeding in this state may adjudicate the issue of paternity if each of the following three statutory elements are satisfied: (1) the obligor asserts a defense that he is not the father of the child involved; (2) the circuit court concludes that the defense is not frivolous; and (3) the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary.
4. Prior to adjourning a paternity hearing under West Virginia Code § 48A-7-26 (1995), a circuit court must, at a minimum, order appropriate blood grouping tests to aid (1) in determining parentage; and (2) in determining whether the physical presence of the relevant parties is required.
5. Where the blood grouping tests in a paternity proceeding under West Virginia Code § 48A-7-26 are inconclusive, the circuit court (1) should consider the equities, convenience and justice to the parties; and (2) should determine whether to adjourn the matter to allow for a determination of paternity in a separate proceeding with all relevant parties present. In making this determination, however, the circuit court should consider, inter alia, (1) the Revised Uniform Reciprocal Enforcement of Support Act's goal of furnishing a liberal, speedy and efficient enforcement mechanism for duties of support; and (2) the possibility of taking additional evidence via deposition pursuant to West Virginia Code § 48A-7-20 (1995).
6. The Revised Uniform Reciprocal Enforcement of Support Act may be employed to determine and enforce the duty of a parent to support his or her minor children even though there exists no prior judicial order of support.
7. "Upon a judicial determination of paternity, the paternal parent shall be required to support his child under W.Va. Code, 48A-6-4 (1986), and may also be liable for reimbursement support from the date of birth of the child." Syl. Pt. 2, in part, Kathy L.B. v. Patrick J.B., 179 W. Va. 655, 371 S.E.2d 583 (1988).
This case is before the Court pursuant to the certified question entered on August 23, 1993, by the Circuit Court of Mercer County.See footnote 1 In an order entered on that same day, the circuit court dismissed a paternity proceeding initiated by the State of Virginia pursuant to the Revised Uniform Reciprocal Enforcement of Support Act ("RURESA"), West Virginia Code §§ 48A-7-1 to -41 (1995).See footnote 2 The dismissal was based upon the grounds that the child and the State were barred from seeking to establish paternity against the Respondent. This decision was based on the fact that a prior decree of divorce in Virginia between the mother and her former husband, Ronnie Cecil Cline, had established Mr. Cline as the child's natural father.
In February, 1989, the mother, Kim Cline, filed a bill of
complaint for divorce in Giles County, Virginia. The bill stated
that the mother had been lawfully married to Mr. Cline on December
7, 1981, and that there were two children born of this marriage,
namely Travis Wade Cline, born May 15, 1980, and a second child.
A birth certificate was filed in Virginia in May, 1980, which
listed Mr. Cline as the child's father. On May 10, 1989, the
Circuit Court of Giles County issued the divorce decree between Mr.
Cline and the mother and simply repeated the mother's reference to
Travis' paternity. The court granted custody of the children to
the mother and ordered Mr. Cline to pay fifty dollars weekly for
child support as well as certain arrearages.
The mother alleges that the Respondent visited Travis in
January 1991. Shortly thereafter, the mother filed a motion in
Giles County, Virginia, asking that Travis be removed from the
support order and asking that the payment for the remaining child
be left at fifty dollars per week, with ten dollars on back
support. The motion was granted in February 1991, removing Travis
from the support obligation.See footnote 3
Later, an attempt was made to establish the Respondent as the
child's father. In 1992, the Virginia Child Support Enforcement
Agency forwarded to West Virginia a RURESA petition seeking a
determination of paternity and child support from the Respondent.
The RURESA petition was served upon the Respondent, who then filed
an answer containing affirmative defenses including, inter alia,
(1) that some other individual fathered Travis; and (2) that Mr.
Cline, the mother's former husband, had previously been adjudicated
as Travis' father. Based on the second defense, the Respondent
argued that the action was barred by res judicata.
The Respondent filed a motion for summary judgment on March 3,
1993, on the grounds that the Virginia divorce decree barred the
paternity action. The Petitioner countered that since the child
was not a party to the divorce, nor was he represented, he was not
barred by res judicata. The Circuit Court of Mercer County ruled
for the Respondent and appointed a guardian ad litem for the child.
Because the trial court ruled in favor of the Respondent and
dismissed the petition, there was no evidence or testimony taken
and no substantial discovery, such as blood grouping tests,
performed. The Child Advocate Office requested that the question
of whether the trial court erred in dismissing the RURESA petition
be certified to this Court.
We discussed the question of res judicata as it related to
paternity issues in State ex rel. Division of Human Services v. Benjamin P.B., 183 W. Va. 220, 395 S.E.2d 220 (1990). That case
involved a mother who caused a warrant to issue against the
appellant in 1978, charging him with the paternity of a child. The
circuit court entered an order, also in 1978, directing the
appellee, the appellant, and the child to submit to blood grouping
tests. However, the mother then filed a motion requesting that the
circuit court withdraw the warrant and dismiss the action, which
was done. Thereafter, in 1989, the mother, through the West
Virginia Department of Human Services, filed a second paternity
suit to obtain child support. The appellant moved to dismiss,
claiming res judicata. Id. at 222, 395 S.E.2d at 222.
This Court held that res judicata did not bar the child's
paternity action merely because a previous paternity action was
instituted by the mother and was dismissed with prejudice. In
syllabus point 5 of Benjamin, we stated as follows:
The dismissal with prejudice of a paternity action initiated by a mother against a putative father of a child does not preclude the child, under the principle of res judicata, from bringing a second action to determine paternity when the evidence does not show privity between the mother and the child in the original action nor does the evidence indicate that the child was either a party to the original action or represented by counsel or guardian ad litem in that action.
Id. at 221, 395 S.E.2d 221.
This approach is attributable in large measure to the
differing interests of mother and child in a paternity and support proceeding. These differing interests were discussed in Benjamin
and Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376
S.E.2d 787 (1989), a case that we cited with approval in Benjamin.
The court in Johnson stated as follows:
[W]hile the mother and child's rights may
relate to the same subject matter, and may be
coextensive to some extent, they are distinct.
. . .
An actual distinction rests in the right to child support. It is well settled that both parents owe a duty of support to their child. . . . However, the duty of support of all children is owed to the child, not the mother. . . . Thus, the mother does not have the same legal right of the child in seeking child support . . . .
The child also has a fundamental right,
not shared by the mother, to establish the
father-child relationship, and in exercising
that right there clearly is potential for
conflict between the mother's interest and the
Id. at 622, 376 S.E.2d at 791.See footnote 4
Our prior cases recognize as much. For instance, we stated in
syllabus point 4 of Michael K.T. v. Tina L.T., 182 W. Va. 399, 387
S.E.2d 866 (1989), that "[a] guardian ad litem should be appointed
to represent the interests of the minor child whenever an action is initiated to disprove a child's paternity." More recently, we have
observed as follows:
Although historically courts have addressed
issues affecting children primarily in the
context of competing adults' rights, the
present trend in courts throughout the country
is to give greater recognition to the rights
of children, including their right to
independent representation in proceedings
affecting substantial rights.
Cleo A.E. v. Rickie Gene E., 190 W. Va. 543, 546, 438 S.E.2d 886,
889 (1993)(emphasis added).
We think that the analysis in Benjamin applies with equal
force to the instant case. Like Benjamin, there is no sufficient
indication of privity between the mother and Travis in the prior
proceeding. Further, it does not appear that anyone even acted to
protect Travis' interests in that proceeding. Accordingly, we
conclude that the Respondent's res judicata argument lacks merit.
There is a further substantial issue, however, that is
implicitly raised by the circuit court's certified question. While
the parties did not brief the issue, we feel compelled to address
the jurisdictional question of whether the Petitioner can seek to
establish the Respondent's paternity in a RURESA proceeding and
under what circumstances.See footnote 5 At the outset, it is important to note one of the primary goals of RURESA is to furnish a liberal
enforcement mechanism for the claims of (1) nonresident parents and
children entitled to support and (2) foreign welfare departments
which have made support payments to non-residents entitled to
support. Commonwealth ex rel. Halsey v. Autry, 293 Md. 53, 57, 441
A.2d 1056, 1058 (1982). Thus, we are mindful that RURESA is
remedial in nature and consequently must be afforded a liberal
construction. See id. at 57, 441 A.2d at 1058-59.
On the question of paternity, West Virginia Code § 48A-7-26
provides as follows:
If the obligor asserts as a defense that he is not the father of the child for whom support is sought and it appears to the court that the defense is not frivolous, and if both of the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary, the court may adjudicate the paternity issue. Otherwise the court may adjourn the hearing until the paternity issue has been adjudicated.
The language of § 48A-7-26 is identical to § 27 of RURESA. 9B
U.L.A. 522, 523 (1987). Not surprisingly, courts interpreting §
27, or state statutes similar to it, have uniformly concluded that
the provision allows a responding court to adjudicate the issue of
paternity. See Nancy Darlene M. v. James Lee M., 184 W. Va. 447, 452, 400 S.E.2d 882, 887 (1990)(stating in dicta that "W.Va. Code,
48A-7-26  allows a court to adjudicate the issue of
paternity"); see also, e.g., D.P. v. Stewart, 189 Cal. App. 3d 244,
247, 234 Cal. Rptr. 420, 421 (1987)(stating that a statute
identical to § 27 was "an express provision authorizing the
adjudication of paternity in a RURESA action"); State v.
Kuehlewind, 570 So. 2d 179, 181 (La. Ct. App. 1990), writ denied,
573 So. 2d 1134 (La. 1991)(noting that a slightly modified version
of § 27 required that "since paternity had been put at issue, . .
. [the court] was obliged to adjudicate the question"); Borchers v.
McCarter, 181 Mont. 169, 173, 592 P.2d 941, 944 (1979), abrogated
on other grounds in State v. Sasse, 245 Mont. 340, 801 P.2d 598
(1990)(stating "Montana has adopted the clear statutory language of
section 27 of the Revised Uniform Act, leaving no question as to
whether a court can determine paternity as part of a URESA action
in this state"); Lara v. County of Yolo ex rel. Constance, 104 Nev.
705, 707, 765 P.2d 1151, 1152 (1988)(quoting § 27 and stating that
it "specifically state[s] that a court may determine paternity and
order the payment of support").See footnote 6
Given this authority, we conclude that, under § 48A-7-26, a
circuit court in a RURESA proceeding in this state may adjudicate
the issue of paternity if each of the following three statutory
elements are satisfied: (1) the obligor asserts a defense that he
is not the father of the child involved; (2) the circuit court
concludes that the defense is not frivolous; and (3) "the parties
are present at the hearing or the proof required in the case
indicates that the presence of either or both of the parties is not
necessary . . . ." W. Va. Code § 48A-7-26.
The largely undeveloped record in this case places us at a severe disadvantage in determining whether at least one of the three § 48A-7-26 elements are satisfied. It is clear that the Respondent has asserted a defense that he is not Travis' father. Further, while the circuit court may reach a different conclusion as the case proceeds below, we cannot say at this time that the Respondent's defense appears frivolous. The element that presents some uncertainty, however, is whether the necessary parties, i.e., the mother, Travis and the Respondent, will be present at the hearing or the proof required in the matter will make their presence unnecessary. We presume, at the very least, that the Respondent will be present. If the mother and Travis are present as well, the circuit court may proceed to adjudicate the paternity issue. If the mother and Travis cannot travel to this state for the hearing, we will leave it to the circuit court in the first instance to determine whether the proof required indicates that the Clines' presence is required. If the circuit court concludes that they need not be present, it may adjudicate the paternity issue. If their presence is deemed necessary for some compelling reason, however, "the court may adjourn the hearing until the paternity issue has been adjudicated." Id.
At this juncture, it we feel it incumbent on us to offer the parties and the circuit court some guidance in making the § 48A-7- 26 "presence" inquiry. While there is not an abundance of case law on this issue, we have gleaned some helpful observations from leading commentators. William J. Brockelbank, chairman of the committee which acted for the National Conference of Commissioners on Uniform State Laws in preparing RURESA, states as a general matter:
When the [paternity] defense is merely
frivolous and can be easily met by a
deposition from the plaintiff, the issue
should be accepted and decided as any other
issue might be. However, when the defendant
makes a substantial showing that he is not the
father and it appears that it will be very
difficult to conduct such a trial with the
plaintiff not before the court, there may be a
point when the court is justified in refusing
to go on. But dismissal should not follow
automatically from the filing of such a
defense but should result only from weighing
the equities and considering the convenience
and justice to the parties.
William J. Brockelbank & Felix Infausto, Interstate Enforcement of Family Support 62-63 (2nd ed. 1971)(emphasis added).
While this excerpt provides a good starting place for a responding court, the question still remains as to where the
"point" lies that would justify a responding court "in refusing to
go on." Id. We think, at the very least, prior to ruling on
whether to "adjourn the hearing" to allow for a separate
adjudication of the paternity question, that it is incumbent upon
the responding court to order appropriate blood grouping tests to
aid in (1) the determination of parentage; and (2) the
determination of whether the physical presence of the relevant
parties is required.See footnote 7
We understand that this approach will require testing at
different interstate locations. That prospect, however, does not
appear to be particularly cumbersome. One leading commentator
provides some helpful insight on the mechanics of the interstate
testing procedure, and we think it helpful to quote her at length:
Interstate blood testing is not difficult to arrange. The petitioner's representative should contact the URESA state information agency to determine if there are any laboratories which the state prefers for performing interstate blood tests. . . . Often the laboratory, especially national laboratories, will have a representative who will assist the petitioner's attorney in coordinating the blood tests. Some national laboratories even have toll-free URESA "hot line" numbers. The alleged father will have blood drawn in the responding jurisdiction. The natural mother and the child will have blood drawn in the initiating jurisdiction.
The laboratory will coordinate the blood
drawing dates so that they are sufficiently
close in time to ensure proper testing. It is
especially important in interstate cases that
the laboratory not only require identification
from the parties but also that it take
photographs and/or fingerprints of the parties
that appear for testing. Obligors have been
known to send in their "buddies" to guarantee
an exclusion. . . . Once the blood samples are
drawn, they will be forwarded to one central
location for testing.
Margaret C. Haynes, The Uniform Reciprocal Enforcement of Support Act, in Interstate Child Support Remedies 63, 87 (Margaret C. Haynes ed., 1989).
Once the testing is completed, the circuit court will be in a
better position to decide how best to proceed. For instance, the
testing may exclude the putative parent from the pool of potential
fathers. In that case, the circuit court would likely be justified
in dismissing the RURESA petition. On the other hand, the
undisputed laboratory results may so conclusively establish that
the putative father is the parent of the child that no further
inquiry is necessary. See Syl. Pt. Mildred L.M. v. John O.F.,
W. Va. , 452 S.E.2d 436 (1994)(stating that "[u]nder W.
Va.Code, 48A-6-3 (1992), undisputed blood or tissue test results
indicating a statistical probability of paternity of more than
ninety-eight percent are conclusive on the issue of paternity, and
the circuit court should enter judgment accordingly."); see also
Lara, 104 Nev. at 708, 765 P.2d at 1153 (stating "Modern medical
tests of this nature are quite accurate, and do not require the
presence of all parties in the same jurisdiction. They can readily provide the court with sufficient evidence to determine
We understand that in some cases, the test results will not
provide definitive evidence of paternity. In those cases, the
circuit court (1) should consider the equities, convenience and
justice to the parties, and (2) should determine whether to adjourn
the matter to allow for a determination of paternity in a separate
proceeding with all relevant parties present. In making this
determination, however, the circuit court should consider, inter
alia, (1) RURESA's goal of furnishing a liberal, speedy and
efficient enforcement mechanism for duties of support; and (2) the
possibility of taking additional evidence via deposition pursuant
to West Virginia Code § 48A-7-20.See footnote 8
On a final note, and as alluded to previously, we feel
compelled to make one final observation given that it may become an
issue once the case returns to the circuit court. If the circuit
court ultimately determines that the Respondent is Travis' father,
it may enter a corresponding order of support against the
Respondent even though such an order was not previously entered in
the initiating state. Although we are aware of contrary authority,
the better-reasoned cases conclude that the duty of a parent to
support a child is imposable by a responding state in a RURESA
proceeding even though no previous order of support exists. See,
e.g., Hodge v. Maith, 435 So. 2d 387, 389 n.5 (Fla. Dist. Ct. App.
1983)(stating that "[w]hile URESA does not create a duty of
support, it is not necessary that an action under the Act be based
on a pre-existing judicial determination of support duty"); Autry,
293 Md. at 61, 441 A.2d at 1061 (stating "as conceded by the father
here, a duty of support is imposable by a responding state court in
a URESA proceeding even though no previous order of support
exists")(citing cases); England v. England, 337 N.W.2d 681, 683
(Minn. 1983)(stating that "[p]rovisions of URESA make clear that
its applicability is not dependent on the existence of other
proceedings"); State ex rel. Petersen v. Miner, 226 Neb. 551, 554,
412 N.W.2d 832, 834 (1987)(stating "URESA has often been
interpreted to require application of the act in cases in which a
duty to support a child is 'imposable' by either common law or
statutory law"); Lara, 104 Nev. at 707, 765 P.2d at 1152 (stating
"[t]he fact that [the respondent's duty to support his child from its birth] was not previously enforced does not mean it did not
exist"); Clarkston v. Bridge, 273 Or. 68, 72, 539 P.2d 1094, 1096
(1975)(stating "[c]learly then, the URESA authorizes both the
finding and the enforcement of duties of support which have not
been previously established in another proceeding").See footnote 9
The reasoning behind these decisions is often based on the
interpretation of RURESA § 2(b). West Virginia Code § 48A-7-2(2)
is materially identical to § 2(b) and provides, in part, as
(2) "Duty of support" means a duty of support whether imposed or imposable by law or by order, decree or judgment of any court, of competent jurisdiction, whether interlocutory or final, or whether incidental to an action for divorce, separation, separate maintenance or otherwise and includes the duty to pay arrearages of support past due and unpaid.
W. Va. Code § 48A-7-2(2)(emphasis added).
The above-cited case authority, as well as the obvious
language of the statute, compels the conclusion that duties of support "are not limited to duties previously imposed by a sister
state." Petersen, 226 Neb. at 553, 412 N.W.2d at 833. Rather, the
duty may be imposed in the responding state according to the law
existing in that state.See footnote 10 While it is true that RURESA does not
create any duties of support in and of itself, the obligation of
one to support his out-of-wedlock child has nothing to do with
RURESA. That obligation is created by the common or statutory law
of the responding state and is merely enforceable via RURESA. Id.
at 554, 412 N.W.2d at 834; see generally Autry, 293 Md. at 53, 441
A.2d at 1056. This construction is compelled by the language of
§ 48A-7-2(2) and comports well with RURESA's broad remedial
There can be no question that there is an "imposable" duty of support under West Virginia law based on the facts herein. As stated, in part, in syllabus point 2 of Kathy L.B. v. Patrick J.B., 179 W. Va. 655, 371 S.E.2d 583 (1988), "[u]pon a judicial determination of paternity, the paternal parent shall be required to support his child under W.Va. Code, 48A-6-4 (1986), and may also be liable for reimbursement support from the date of birth of the child." Id.; see Syl. Pt. 2, in part, Robinson v. McKinney, 189 W. Va. 459, 432 S.E.2d 543 (1993)(stating that "'[t]he duty of a parent to support a child is a basic duty owed by the parent to the child'")(quoted case omitted). Should the Respondent ultimately be found to have fathered Travis then, the circuit court may impose a duty of support on him, and order reimbursement support as well, pursuant to West Virginia Code § 48A-7-23.
In accordance with the above analysis, the circuit court is,
in sum, directed in the first instance to order blood grouping
tests of the relevant parties. Next, the court should review the
results of those tests to determine whether judgment might be
entered for either party as a matter of law. If the court
determines that the tests are inconclusive, it must then ascertain,
given the equities, convenience, justice to the parties, and the
other factors outlined above, whether it should proceed to
adjudicate the paternity issue or adjourn the proceeding to allow
for a separate adjudication of the question. Finally, if the
Respondent is ultimately adjudicated to be Travis' father, the
circuit court is directed to impose an appropriate duty of support.
Having answered the certified question posed by the circuit court, we dismiss the case from this Court's docket.
Certified Question Answered; Case Dismissed.
Footnote: 1 The certified question provides as follows:
Whether the statutes, caselaw or public policy of this State bar the instant action which seeks to establish paternity against the defendant for a minor child which is specifically mentioned in a final divorce decree entered in the State of Virginia between the plaintiff and her then-husband, Ronnie Cecil Cline, finding that Ronnie Cecil Cline is the father of the child.
Footnote: 2 RURESA was preceded by the Uniform Reciprocal Enforcement of Support Act ("URESA"). URESA was originally enacted in 1950. It was subsequently amended in 1952, 1958 and 1968. The breadth of the 1968 amendments were such that the National Conference of Commissioners on Uniform State Laws redesignated URESA as RURESA. See generally Revised Uniform Reciprocal Enforcement of Support Act, 9B U.L.A. 381, 382 (1987).
By way of background, a RURESA proceeding like the one at issue commences when a person owed a duty of support files a petition in a court of the "[i]nitiating state," here Virginia. W. Va. Code § 48A-7-2(4). The initiating state then forwards the petition to a court located in the state where the parent allegedly liable for a duty of support resides. This second state is known as the "[r]esponding state." W. Va. Code § 48A-7- 2(11). The court in the responding state then proceeds to ascertain whether a duty of support exists. W. Va. Code § 48A-7- 23. A comprehensive discussion of the RURESA petition process can be found in Commonwealth ex rel. Halsey v. Autry, 293 Md. 53, 441 A.2d 1056 (1982).
Footnote: 3 The mother states as follows in her interrogatory answers: "So, in January of 1991 I had to bring it all out. I couldn't live with the fact that my son was growing up living a lie. Ronnie is not his father, and I don't think Travis should grow up thinking he is. It just isn't fair to Travis."
Footnote: 4 It does not appear that Mr. Cline objects to the instant paternity action nor the deleterious effect that it might have on his rights to or relationship with Travis. Certainly, however, he would be entitled to notice of any proceedings to sever his rights if his whereabouts are known. The more difficult issue, one which is not presented here and which need not be addressed at this time, would involve a paternity action affecting the parental rights of one (1) who has acted in a paternal capacity for a significant length of time, and (2) who desires to retain such rights.
Footnote: 5 We implicitly answered this question in the affirmative last term in Mildred L.M. v. John O.F., W. Va. , 452 S.E.2d 436 (1994). The facts in Mildred L.M. are remarkably similar to those herein and involved a jury trial in a RURESA paternity dispute. The sole issue on appeal was whether the jury's verdict was supported by the evidence, and we did not
address the question
Footnote: 6 Even absent the express authority granted by § 27, a majority of jurisdictions have held that the general language of URESA permits a responding court to adjudicate paternity. See, e.g., Greenstreet v. Clark, 239 N.W.2d 143 (Iowa 1976); Clarkston v. Bridge, 273 Or. 68, 539 P.2d 1094 (1975); Yetter v. Commeau, 84 Wash. 2d 155, 524 P.2d 901 (1974); see generally State ex rel. Dep't of Social Servs. v. Wright, 736 S.W.2d 84, 85 (Tenn. 1987)(collecting cases); Joel E. Smith, Annotation, Determination of Paternity of Child as Within Scope of Proceeding Under Uniform Reciprocal Enforcement of Support Act, 81 A.L.R. 3d 1175 (1977).
Footnote: 7 It appears that the Commonwealth of Virginia has offered to pay for such testing with the proviso that it be reimbursed by the Respondent if he is ultimately determined to be Travis' father.
Footnote: 8 West Virginia Code § 48A-7-20 provides as follows:
If the obligee is not present at the
hearing and the obligor denies owing the duty
of support alleged in the petition or offers
evidence constituting a defense, the court
shall upon request of either party, continue
the hearing to permit evidence relative to
the duty to be adduced by either party by
deposition or by appearing in person before
the court. The court may designate the judge
of the initiating court as a person before
whom a deposition may be taken.
Id. We would also note that the discovery devices contained in the Rules of Civil Procedure were made applicable to this case via a family law master's order of June 5, 1992. See R. Civ. P. 81(a)(2). Further, one commentator has observed that, in similar cases, "[a] few courts have also begun allowing the submission of evidence through video and/or telephone conferencing." Haynes, supra at 87.
Footnote: 9 This conclusion also finds support from Professor Brockelbank, who has commented on the "misconception" that:
only orders of support of one state will be
enforced in another under the Act. In fact
. . . the duty, of course, may grow out of
the order of support or a judgment or decree
but is equally a duty if it never has
received judicial attention and now is the
basis of litigation for the first time under
Brockelbank & Infausto, supra at 39.
Footnote: 10 See, e.g., Autry, 293 Md. at 59, 441 A.2d at 1059 (citing cases). This conclusion, of course, is buttressed by West Virginia Code § 48A-7-23, which states in pertinent part that "[i]f the circuit court, acting as a responding court, finds a duty of support, it may order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order." Id. (emphasis added).