Jones v. Eley

Present: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice
DANIEL L. JONES AND CHARLES JONES,
CO-ADMINISTRATORS OF THE ESTATE OF BOBBY JONES
OPINION BY
v. Record No. 971952 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
June 5, 1998
SHEILA A. ELEY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
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 § 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,
1
David L. Jones died on July 3, 1996, and Daniel and Charles
Jones continued to serve as co-administrators.
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
2
DNA testing was also undertaken. Two laboratories, however,
were unable to perform the test on Bobby’s DNA sample.
2
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
3
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 § 8.01-680; Tauber v.
Commonwealth, 255 Va. 445, 452, ___ S.E.2d ___, ___ (1998).
Code § 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
3
The enumerated items in Code § 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
4
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
§ 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
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.
5
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.
6
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 § 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.
7
Moreover, we think the co-administrators’ reliance upon the
quoted clause in Code § 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 § 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
4
We have considered the co-administrators’ other assignment of
error and find it to be without merit.
8
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 § 64.1-5.1, that Bobby Julius Jones, deceased,
was their biological father.
Code § 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.
9
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 § 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
10
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.
11