COMMONWEALTH of Virginia, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. COMPTROLLER OF VIRGINIA, on Behalf of Debra OVERBY v. James FLANEARY
Record No. 2528-94-3
Court of Appeals of Virginia
April 16, 1996
469 S.E.2d 79
It is clear from this record that the commission set October 1, 1993 as the deadline for filing applications. Yet, it has granted an operator‘s license to a corporation that was not in existence when that deadline passed. That was not a mere “technical” error. For this reason, I would reverse the trial court‘s judgment and remand the matter with direction that the trial court enter an order revoking the operator‘s license granted to Stansley Racing Corporation by the commission.
I agree that this Court has jurisdiction to decide matters over which the commission has authority and that there is nothing in the statutes that created its authority which requires owners or operators to be corporate entities.
Douglas K. Frith, Martinsville (Douglas K. Frith & Associates, on brief), for appellee.
Present: MOON, C.J., and COLEMAN and FITZPATRICK, JJ.
COLEMAN, Judge.
The Department of Social Services, Division of Child Support Enforcement (DCSE), appeals the trial court‘s order finding that the evidence failed to prove that James Flaneary is the father of Gerald Lee Overby and dismissing DCSE‘S petition for child support. DCSE contends that
We hold that
I. FACTS
On March 17, 1987, Debra Overby gave birth to a son, Gerald Lee Overby. Because Debra Overby received public assistance for her son‘s support, she assigned the right to child support from the father to DCSE. In 1992, DCSE required Debra Overby to identify the child‘s father and she named Willard Edward Stump as the biological father. Stump voluntarily agreed to paternity testing, and the test results positively excluded him as the child‘s father.
After Stump was excluded, DCSE again requested that Debra Overby identify the father. This time, she identified James Flaneary, the appellee, as the father. DCSE filed a petition against Flaneary to establish paternity and to assess and order the payment of child support. The court ordered that DNA blood tests be conducted on Debra Overby, Gerald Lee Overby, Flaneary, and Flaneary‘s brother.
The DNA test results excluded Flaneary‘s brother as the father. In testing Flaneary, the laboratory probed six genetic systems from the child and parents for comparison. Five of the six systems probed from Flaneary matched those of Gerald Lee Overby and, according to the laboratory‘s calculations, these phenotype comparisons established a probability of paternity for Flaneary of 99.92%. According to the lab‘s report, the calculations were based upon accepted guidelines established by the American Association of Blood Banks. A second mismatch between the child‘s and Flaneary‘s pheno-types would have excluded Flaneary as the father. However, each phenotype of the child‘s that matched Flaneary‘s significantly increased the statistical probability that he is the child‘s father.
At the evidentiary hearing, Debra Overby acknowledged that she had previously signed an affidavit naming Willard Stump as the child‘s father and that she told a representative of DCSE that Flaneary was not Gerald‘s father. Overby testified that she had first named Stump as the father because he and Flaneary were the only two men she had sexual relations with during the period of conception and Flaneary had told her that he could not father a child. She testified that she first had sexual intercourse with Flaneary on July 6, 1986.
Dr. Daniel B. Demers, an expert in DNA testing, gave two possible explanations why the failure of one of Gerald Overby‘s genetic systems to match that of Flaneary did not exclude paternity: “(1) The rare likelihood that James Flaneary had the same genetic material as an unknown man in the population or (2) Mr. Flaneary was the biological father but a rare mutational even[t] occurred during spermatogenesis.” Demers testified that, in his opinion, the second explanation was the most likely of the two.
Demers further explained that Stump and Flaneary‘s brother were only probed three times, while Flaneary was probed six times, because Stump and the brother did not match Gerald after three probes and, thus, were excluded. He explained that the percentage of probability of paternity increases each time the blood is probed and a match is found between the child‘s and putative father‘s genetic systems or genetic markers. On cross-examination, Demers explained that because five phenotypes matched, it was highly probable, but not definite, that Flaneary was the child‘s father, and that had there been a second inconsistent probe, Flaneary would have been excluded as the father.
Flaneary testified that Overby told him that she was already pregnant when they first had sexual intercourse. He also denied that he was the father and denied that he told anyone that he was the father. Furthermore, in light of Overby‘s testimony that she first had sexual intercourse with Flaneary
In holding that Overby and DCSE had failed to carry the burden of proving paternity, the trial court found that Overby‘s testimony was “equivocal [and] confused,” that Flaneary denied paternity, and that the DNA testing “ha[d] at least one joker.” Accordingly, the trial court ruled that Flaneary was not Gerald Lee Overby‘s father and dismissed DCSE‘s petition.
II. ANALYSIS
DCSE, citing
[t]he parent and child relationship between a child and a man may be established by a written statement of the father and mother made under oath acknowledging paternity or subsequent scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity. Such statement or blood test result shall have the same legal effect as a judgment entered pursuant to
§ 20-49.8 . In the absence of such acknowledgment or if the probability of paternity is less than ninety-eight percent, such relationship may be established as otherwise provided in this chapter.
Thus, DCSE argues that either a sworn acknowledgement of paternity or a genetic test result showing the requisite probability of paternity has the same legal effect as a judgment of paternity.
Flaneary asserts that
The initial question presented by DCSE is whether
In Dunbar v. Hogan, 16 Va.App. 653, 658-59, 432 S.E.2d 16, 19 (1993), we held, however, that under
It is a well established rule of construction that a statute ought to be interpreted in such a manner that it may have effect, and not found to be vain and elusive.... It is our duty to give effect to the wording of the statute, and allow the legislative intention to be followed. Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 34, 366 S.E.2d 271, 273 (1988) (en banc) (quoting McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952)). In Dunbar, we decided only that under
The purpose of
Many states have enacted paternity statutes establishing a rebuttable presumption of paternity where genetic test results report a paternity equal to or greater than a designated percentage. See, e.g., Howie v. Thomas, 514 N.W.2d 822, 824 (Minn.Ct.App.1994)
By contrast,
- Evidence of open cohabitation or sexual intercourse between the known parent and the alleged parent at the probable time of conception; [and]
*
- The results of scientifically reliable genetic tests, including blood tests, if available, weighted with all the evidence.
Id.
Clear and convincing evidence is
[t]hat measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
Martin v. Pittsylvania County Dep‘t of Social Servs., 3 Va.App. 15, 21, 348 S.E.2d 13, 16 (1986) (quoting Gifford v. Dennis, 230 Va. 193, 198 n. 1, 335 S.E.2d 371, 373 n. 1 (1985)).
On appeal, the reviewing court cannot set aside the judgment of the trial court sitting without a jury unless it is “plainly wrong or without evidence to support it.”
However, a trial court‘s conclusion based on evidence that is “not in material conflict” does not have this binding effect on appeal. The trier of fact must determine the weight of the testimony and the credibility of the witnesses, but it “may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is
Here, Dr. Demers provided uncontroverted testimony that the genetic blood test results reported a 99.92% probability of paternity and that the test was conducted in accordance with the accepted standards of the American Association of Blood Banks. There was no evidence challenging the test results or the reliability of the test procedure or methodology. Although the trial judge commented that the DNA test had at least one “joker in there,” apparently suggesting that the test was not reliable or the result was not accurate, Dr. Demers testified that the most likely explanation for this phenomenon was that a rare mutational event occurred during spermatogenesis and that the 99.92% calculation took this discrepancy into account.4 Therefore, the uncontroverted evidence established that the genetic tests used here were scientifically reliable and that the 99.92% calculation was a correct statistical probability of paternity.
We are bound by the trial court‘s finding that Debra Overby‘s testimony was “equivocal [and] confused,” and must discard any of her testimony that conflicts with Flaneary‘s testimony or with other evidence in the record. See Brooks v. Rogers, 18 Va.App. 585, 587, 445 S.E.2d 725, 726 (1994) (stating that “the credibility of witnesses and the weight accorded to their testimony are matters solely within the purview of the trial court“). Nevertheless, Flaneary confirmed that he had sexual intercourse with Overby on July 6, 1986, and although he testified that she told him that she was already pregnant, this statement, standing alone, is not sufficient to establish with reliability the period of conception or that Overby was, in fact, pregnant. Furthermore, the medical records Flaneary produced do not prove that Overby was pregnant when she had intercourse with him for the first time. For instance, an entry dated January 28, 1987, states that the gestational age was “33 weeks (+- 3 wks),” which would include July 6, 1986. Therefore, even without Overby‘s testimony, the evidence that Flaneary had access during the period of conception is uncontroverted.
Because uncontroverted evidence established that genetic blood tests reported a 99.92% probability of paternity and that Flaneary had access during the period of conception, we hold that the evidence proved clearly and convincingly, as a matter of law, that Flaneary is the father of Gerald Lee Overby. See Buckland v. Commonwealth, 229 Va. 290, 297, 329 S.E.2d 803, 807 (1985) (holding that blood tests reporting a 99.72% probability of paternity “alone proved Buckland‘s paternity beyond a reasonable doubt“). Accordingly, we remand the matter to the trial court for entry of an order to that effect and to determine the amount of Flaneary‘s child support obligation.
Reversed and remanded.