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JONES AND JONES, CO-ADMINISTRATORS OF THE ESTATE OF BOBBY JONES v. ELEY, ET AL (59756)


JONES AND JONES,

CO-ADMINISTRATORS OF THE ESTATE OF BOBBY JONES

v.

ELEY, ET AL.


June 5, 1998

Record No. 971952

DANIEL L. JONES AND CHARLES JONES,

CO-ADMINISTRATORS OF THE ESTATE OF BOBBY JONES

v.

SHEILA A. ELEY, ET AL.

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Randolph T. West, Judge

Present: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice


In this paternity suit, the trial court found by clear and
convincing evidence that Sheila A. Eley and Nathan A. Eley (the
Eleys), who were born out of wedlock, are the biological children
of Bobby Julius Jones, deceased. The principal issue in this
appeal is whether the evidence supports that finding.

I

On June 15, 1995, the Eleys filed a petition, pursuant to Code
Sec. 64.1-5.1, to establish that Bobby Julius Jones, who died
February 24, 1995, was their biological father. Daniel Jones,
Charles C. Jones, and David L. Jones, co-administrators of Bobby
Jones’ estate (the co-administrators), contested the
paternity claim. The co-administrators are Bobby Jones’
brothers and claim to be his sole heirs at law.[1]

On May 30, 1997, the trial court conducted an ore tenus
hearing. On June 19, 1997, the court entered a final order,
finding by clear and convincing evidence that the Eleys are the
biological children and, therefore, the legal heirs at law of
Bobby Jones. The co-administrators appeal.

II

The Eleys prevailed at trial; therefore, pursuant to a
well-established principle of law, they are entitled to have the
evidence and all reasonable inferences deducible therefrom viewed
in the light most favorable to them.

In 1957, Alice Eley and Bobby Jones began dating each other.
Although they never married, they continued to maintain a close
relationship. Bobby and Alice lived together continuously during
the seven years preceding Bobby’s death.

Alice Eley is the biological mother of Sheila Eley, born in
November 1958, and Nathan Eley, born in December 1960. Alice
testified that Bobby was the children’s biological father.[2]

According to Alice, Bobby assumed financial responsibility for
the Eleys until they became adults. Bobby gave Alice money
"every week" for their support, and he provided extra
money when needed. Bobby also sat for a "family
portrait," and he and Alice took pictures "throughout
the lifetimes with the kids."

Bobby acknowledged to a number of family members and friends
that the Eleys were his children. During his last illness and
shortly before his death, Bobby acknowledged to his attending
physician that the Eleys were his children, and the physician
testified that Nathan was Bobby’s "spitting
image."

The Eleys testified that their relationship with Bobby was
that of parent and children. They recounted how Bobby often would
"pick [them] up" and take them to various places such
as parks and movie theaters. On several occasions, Bobby took
them to Jones family reunions and gatherings in North Carolina.
Bobby bought them clothes, and he "always" took Nathan
to the barbershop. He often attended high school and college
basketball games in which Nathan participated. After Sheila had
children, Bobby had a close relationship with his grandchildren,
whom he affectionately referred to as his "grandboys."

On December 13, 1974, Bobby signed an insurance beneficiary
designation form on which he stated that Sheila Eley was his
daughter and Nathan Eley was his son. Sheila received $12,000 as
the named beneficiary of Bobby’s certificate of deposit with
his employer’s credit union. She also received insurance
proceeds of approximately $25,000 as the named beneficiary of
Bobby’s life insurance policies. Bobby named Nathan the
beneficiary of approximately 160 bonds having a value "well
over $10,000."

When Bobby died, the Eleys, along with Daniel Jones, made the
funeral arrangements. Sheila had Bobby’s mail forwarded to
her home so she could pay his outstanding debts. The Eleys paid
Bobby’s hospital bill, doctor bills, funeral and burial
expenses, and property tax.

III

Great deference is accorded a trial court’s factual
findings. This is so because the judge, as fact finder, sees and
hears the witnesses and, therefore, is better able to determine
their credibility and weigh their testimony. Tuomala v. Regent
University
, 252 Va. 368, 375, 477 S.E.2d 501, 505-06 (1996).
Consequently, a trial court’s factual findings will not be
disturbed on appeal unless they are plainly wrong or without
evidence to support them. Code Sec. 8.01-680; Tauber v.
Commonwealth, 255 Va. 445, 452, ___ S.E.2d ___, ___
(1998).

Code Sec. 64.1-5.2 provides that "evidence that a man
is the father of a child born out of wedlock shall be clear and
convincing." The section also provides that the evidence
"may include, but shall not be limited to" eight
enumerated items. [3]

The co-administrators contend that the evidence is
insufficient to prove that Bobby was the biological father of the
Eleys because none of the eight items set forth in Code
Sec. 64.1-5.2 were proved. While it is true that none of the
eight items were proved, the statute, as previously noted,
expressly provides that the evidence relating to paternity
"shall not be limited to" those items. Therefore, we
must examine the evidence that the trial court did consider in
finding that Bobby was the Eleys’ biological father.

The evidence shows that Bobby acknowledged his paternity to a
number of people, one of whom was his treating physician during
his last illness. This disinterested witness testified not only
that Bobby acknowledged to him that the Eleys were his children,
but also that Nathan Eley was Bobby’s "spitting
image."

The evidence also reveals that Bobby’s interaction with
the Eleys was indicative of a father and children relationship.
When the Eleys were young, Bobby would take them to various
places for recreation and entertainment. Bobby sat for family
photographs with Alice and the Eleys, and he took the Eleys to
Jones family reunions and gatherings.

According to Alice, Bobby always contributed to the support
and maintenance of the Eleys until they reached adulthood. Bobby
named the Eleys as beneficiaries of life insurance policies, a
certificate of deposit, and bonds. Most significantly, Bobby
completed and signed an insurance beneficiary designation form on
which he stated that Nathan Eley was his son and Sheila Eley was
his daughter.

The co-administrators also assert that the evidence is
insufficient to prove paternity because Alice never testified
that she had had sexual intercourse with Bobby. We are
unpersuaded by this assertion. Alice did testify that she and
Bobby began "dating" in August 1957, that they dated
continuously thereafter, and that Bobby was the Eleys’
father.

Finally, the co-administrators contend that the evidence
should fail because, on one occasion, Alice unsuccessfully
petitioned a juvenile and domestic relations district court to
order Bobby to pay support for the Eleys. To support this
contention, the co-administrators look to Code
Sec. 64.1-5.1(3)(b) which states that a person born out of
wedlock is the child of a man if the paternity is established by
clear and convincing evidence; "provided, however, that the
paternity establishment . . . shall be ineffective to
qualify the father or his kindred to inherit from or through the
child unless the father has openly treated the child as his and
has not refused to support the child." The co-administrators
assert that "it is apparent that Bobby Jones was refusing to
support the children when he went to court and the child support
case was dismissed." We do not agree.

The record is silent with respect to the basis for the
dismissal of the petition. Alice testified, however, that,
although Bobby always supported the Eleys, she "took him to
court . . . to get more money because [she] didn’t
feel that [Bobby] was giving [her] enough at that particular
time." Viewing, as we must, the evidence and all reasonable
inferences in the light most favorable to the Eleys, we do not
think the record supports the contention that Bobby ever refused
to support them.

Moreover, we think the co-administrators’ reliance upon
the quoted clause in Code Sec. 64.1-5.1(3)(b) is misplaced.
The clause deals with the right of a father or his kindred to
inherit from or through a child born out of wedlock, not with the
establishment of paternity.

IV

We recognize, as the co-administrators state, that the General
Assembly, in enacting Code Sec. 64.1-5.1, has placed a heavy
burden on people who undertake to prove that they are the
paternal children of a decedent. It is apparent from the record,
however, that the trial court was fully cognizant of that burden.
Nevertheless, the court found by clear and convincing evidence
that Bobby Jones was the Eleys’ biological father. Giving
that finding the deference to which it is entitled, we conclude
that the finding is fully supported by the evidence. Accordingly,
the trial court’s judgment will be affirmed.[4]

Affirmed.

 

JUSTICE KOONTZ, with whom JUSTICE COMPTON and JUSTICE KINSER
join, dissenting.

I respectfully dissent. The majority acknowledges that the
General Assembly has placed a heavy burden on people who
undertake to prove that a decedent is their biological father.
This burden of proof is appropriate because obviously a decedent
no longer can speak in defense of the asserted paternity. Here,
in my view, Sheila A. Eley and Nathan A. Eley have failed to
establish by clear and convincing evidence, which was their
burden under Code Sec. 64.1-5.1, that Bobby Julius Jones,
deceased, was their biological father.

Code Sec. 64.1-5.2, although permitting other evidence,
provides statutory evidentiary factors sufficient to establish
that a man is the biological father of children born out of
wedlock. In the present case, none of these factors was
proved. Thus, there is no evidence that Bobby openly cohabited
with the Eleys’ mother, Alice Eley, during the ten months
immediately prior to Sheila’s birth in 1958 or during the
ten months immediately prior to Nathan’s birth in 1960; that
Bobby consented that his name be used as the father upon the
Eleys’ birth certificates; that Bobby allowed the use of his
surname by the Eleys; that Bobby claimed the Eleys as his
children on any statement, tax return, or other document filed
with a government; that Bobby admitted before any court that he
was the Eleys’ father; that Bobby admitted paternity in
writing, under oath; or that any genetic blood grouping test or
other medical evidence established paternity.

In addition, the record reflects that on one occasion during
Bobby’s lifetime and the Eleys’ minority, Alice
unsuccessfully petitioned a juvenile and domestic relations
district court to order him to pay support for the Eleys.
Although the record is silent with respect to the basis for the
dismissal of this petition, it nevertheless establishes that on
that occasion Alice was not successful in proving that Bobby was
the Eleys’ biological father.

It is in this context that we must consider whether the other
evidence, relied upon by the trial court and the majority, rises
to the level of clear and convincing evidence of the asserted
paternity. The Eleys’ evidence establishes that they were
the objects of Bobby’s affection and his financial support
and that in many ways Bobby’s conduct toward the Eleys was
consistent with a relationship between a father and his children.
The existence of that relationship is further supported by
Bobby’s cohabitation with the Eleys’ mother during the
seven years preceding his death and the financial benefits he
provided for the Eleys at the time of his death. However, when
this evidence is considered against the failure of the
Eleys’ to prove any one of the express statutory factors to
support a finding of paternity under Code Sec. 64.1-5.2,
coupled with the evidence that Alice was not successful in
proving that paternity in the juvenile and domestic relations
district court proceeding during Bobby’s lifetime, it falls
short of the required clear and convincing standard of proof. See
Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41,
211 S.E.2d 88, 92 (1975).

For these reasons, I would reverse the judgment of the trial
court and enter final judgment for the co-administrators of
Bobby’s estate.

 

FOOTNOTES:

[1] David L. Jones died on July 3,
1996, and Daniel and Charles Jones continued to serve as
co-administrators.

[2] DNA testing was also
undertaken. Two laboratories, however, were unable to perform the
test on Bobby’s DNA sample.

[3] The enumerated items in Code
Sec. 64.1-5.2 are as follows:

1. That he cohabited openly with the mother during all
of the ten months immediately prior to the time the child
was born;

2. That he gave consent to a physician or other
person, not including the mother, charged with the
responsibility of securing information for the
preparation of a birth record that his name be used as
the father of the child upon the birth records of the
child;

3. That he allowed by a general course of conduct the
common use of his surname by the child;

4. That he claimed the child as his child on any
statement, tax return or other document filed and signed
by him with any local, state or federal government or any
agency thereof;

5. That he admitted before any court having
jurisdiction to try and dispose of the same that he is
the father of the child;

6. That he voluntarily admitted paternity in writing,
under oath;

7. The results of medically reliable genetic blood
grouping tests weighted with all the evidence; or

8. Medical or anthropological evidence relating to the
alleged parentage of the child based on tests performed
by experts.

[4] We have considered the
co-administrators’ other assignment of error and find it to
be without merit.

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