## Facts

- Jane Louise Bergaust lived in Virginia.
- Edward J. Flaherty, a U.S. citizen, lived in France.
- Bergaust met Flaherty in France in 1994 and they maintained a long-distance relationship after she returned to Virginia.
- In December 1995, Bergaust visited Flaherty in France, stayed with him, and they had sexual intercourse in France.
- After returning to Virginia, Bergaust learned she was pregnant and told Flaherty he was the father.
- During the pregnancy, Flaherty frequently called Bergaust in Virginia, referred to the unborn child as “our baby,” and said he would support her as he could.
- The child was born in Virginia and lived in Virginia with Bergaust.
- After the birth, Flaherty continued calling for a period and referred to the child as “our daughter.”
- Flaherty visited Bergaust and the child in Virginia once, when the child was several months old.
- Over time, Flaherty’s contacts with Bergaust and the child became infrequent and eventually stopped.
- Bergaust filed a child-support petition in the Fairfax County Juvenile and Domestic Relations District Court.
- The district court dismissed the petition for lack of personal jurisdiction over Flaherty, and the Fairfax County Circuit Court affirmed.
- Bergaust appealed to the Court of Appeals of Virginia, arguing Virginia had personal jurisdiction because Flaherty had “fathered” the child in Virginia by acknowledging paternity and maintaining contacts with her and the child while they were in Virginia.

## Issues

1. Whether Va. Code § 8.01-328.1(A)(8) (Virginia’s long-arm provision for a person who has “conceived or fathered a child in this Commonwealth”) authorizes personal jurisdiction over a nonresident where conception occurred outside Virginia but the alleged father later acknowledged paternity and had contacts with the mother and child in Virginia.

## Decision

- The Court of Appeals of Virginia affirmed the circuit court’s judgment and left the dismissal in place.
- The court held that § 8.01-328.1(A)(8) did not authorize personal jurisdiction because the child was not “conceived” in Virginia and “fathered” in the statute means biological begetting/procreation, not later acknowledgment of paternity in Virginia.
- Because the long-arm statute did not provide a statutory basis for jurisdiction, the court did not need extended analysis of constitutional due process.

## Legal Principles

- A Virginia court may exercise personal jurisdiction over a nonresident only if (1) a Virginia statute authorizes jurisdiction and (2) exercising jurisdiction satisfies due process.
- Under Va. Code § 8.01-328.1(A)(8), jurisdiction in a support-related action may be based on a person having “conceived or fathered a child in this Commonwealth.”
- In § 8.01-328.1(A)(8), “fathered” is read in its statutory context with “conceived” and refers to biological procreation, not a later statement or conduct recognizing parentage.
- Courts interpret statutory terms in context and avoid expanding a long-arm statute beyond what the General Assembly wrote.
- The pairing of “conceived” with “fathered,” and the statute’s omission of parallel language aimed at a noncustodial mother, supported a biological meaning rather than a broader meaning tied to later acknowledgment.

## Conclusion

Virginia lacked personal jurisdiction over Flaherty in Bergaust’s child-support action because the statutory basis Bergaust relied on—Va. Code § 8.01-328.1(A)(8)—requires that the child be conceived or biologically fathered in Virginia, and the undisputed facts showed conception occurred in France; Flaherty’s later acknowledgment of paternity and limited Virginia contacts did not satisfy the statute, so the dismissal for lack of personal jurisdiction was affirmed.


Bergaust v. Flaherty, 703 S.E.2d 248 (2011)