COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued By Teleconference 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

ex rel. COMPTROLLER OF VIRGINIA, 

 o/b/o DEBRA OVERBY OPINION BY 

 JUDGE SAM W. COLEMAN III 

v. Record No. 2528-94-3 APRIL 16, 1996 

JAMES FLANEARY 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

David V. Williams, Judge 

 Alice G. Burlinson, Special Counsel (Betsy S. 

Elliott, Senior Special Counsel, Division of 

Child Support Enforcement; James S. Gilmore, 

III, Attorney General; William H. Hurd, 

Deputy Attorney General; Siran S. Faulders, 

Senior Assistant Attorney General; Robert B. 

Cousins, Jr., Senior Assistant Attorney 

General, on briefs), for appellant. 

 

 Douglas K. Frith (Douglas K. Frith & Associates, 

 on brief), for appellee. 

 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 Code § 20-49.1(B) requires that when 

DNA test results show a probability of paternity of 98% or 

greater, the trial court must treat the results as the equivalent 

of a judgment finding paternity and, therefore, the trial court 

erred by finding nonpaternity despite DNA test results showing a 

 99.92% probability of paternity. 
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 We hold that Code § 20-49.1(B) applies only when the parties 

have signed a voluntary acknowledgement of paternity under oath, 

or after having signed such an acknowledgement have obtained a 

"subsequent" genetic test that affirms at least a 98% probability 

of paternity. Because the parties had not executed an 

acknowledgement of paternity, Code § 20-49.1(B) does not apply. 

Therefore, Code § 20-49.4 is the applicable statute by which we 

review the trial court's decision that DCSE failed to prove by 

clear and convincing evidence that Flaneary is the biological 

father of Gerald Lee Overby. 

 Upon our review, and applying the provisions of Code 

§ 20-49.4, we hold that the unimpeached DNA test results showing 

a 99.92% probability of paternity and the uncontroverted evidence 

that Debra Overby and Flaneary had sexual intercourse during the 

period of conception proved paternity, as a matter of law, by 

clear and convincing evidence. Thus, because the trial court's 

finding that Flaneary is not Gerald Lee Overby's father is 

plainly wrong, we reverse the trial court's decision and remand 

the matter for the court to enter an appropriate order of 

paternity and to determine child support. 

 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 
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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 phenotypes 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 
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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 
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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 on July 6, 1986, he 

introduced medical records from Overby's obstetrician which 

indicated that her pregnancy could have begun in early June 1986. 

 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 Code § 20-49.1(B), contends that when DNA 

testing affirms at least a 98% probability of paternity, the test 

results are conclusive as to paternity and the trial court need 

not consider other evidence of paternity. Code § 20-49.1(B) 

provides that 

 [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 
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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 ninetyeight 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 Code § 20-49.4, not Code § 20-49.1, 

controls contested paternity proceedings. Code § 20-49.4 

provides, "in any action to establish parentage, . . . [a]ll 

relevant evidence on the issue of paternity shall be admissible 

. . . [and] may include, but shall not be limited to . . . [t]he 

results of scientifically reliable genetic tests, including blood 

tests, if available, weighted with all the evidence." (Emphasis 

added). Moreover, Flaneary points out that under Code § 20-49.4, 

paternity must be proven by clear and convincing evidence. He 

notes that Code § 20-49.4 sets forth a nonexclusive list of the 

types of evidence, including scientifically reliable genetic 

tests, that are relevant to prove paternity.1

 He argues, 

 

 1 Code § 20-49.4 provides: 

 The standard of proof in any action to 

establish parentage shall be by clear and 

convincing evidence. All relevant evidence 

on the issue of paternity shall be 

admissible. Such evidence may include, but 
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(..continued) 

therefore, that Code § 20-49.1 applies only when a sworn 

voluntary acknowledgement of paternity exists and that Code 

§ 20-49.4 applies in contested judicial proceedings to establish 

paternity where, as in this case, no voluntary acknowledgement 

exists, or where the genetic testing reports less than a 98% 

probability of paternity. 

 The initial question presented by DCSE is whether Code 

§ 20-49.1 applies and requires a trial court in a contested 

shall not be limited to, the following: 

 1. Evidence of open cohabitation or 

sexual intercourse between the known parent 

and the alleged parent at the probable time 

of conception; 

 2. Medical or anthropological evidence 

relating to the alleged parentage of the 

child based on tests performed by experts. 

If a person has been identified by the mother 

as the putative father of the child, the 

court may, and upon request of a party shall, 

require the child, the known parent, and the 

alleged parent to submit to appropriate 

tests; 

 3. The results of scientifically 

reliable genetic tests, including blood 

tests, if available, weighted with all the 

evidence; 

 4. Evidence of the alleged parent 

consenting to or acknowledging, by a general 

course of conduct, the common use of such 

parent's surname by the child; 

 5. Evidence of the alleged parent 

claiming the child as his child on any 

statement, tax return or other document filed 

by him with any state, local or federal 

government or any agency thereof; 

 6. A true copy of an acknowledgement 

pursuant to § 20-49.5; and 

 7. An admission by a male between the 

ages of fourteen and eighteen pursuant to 

§ 20-49.6. 
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paternity proceeding to give genetic test results affirming at 

least a 98% probability of paternity the same legal effect as a 

judgment.2

 Clearly, the major purpose for enacting Code 

§ 20-49.1 was to eliminate the necessity of obtaining a judicial 

adjudication of paternity in cases where both parents voluntarily 

acknowledge under oath a child's paternity. See 1990 General 

Assembly, Summary of Legislative Proposal Priority 1, Department 

of Social Services, Legislative Draft File, House Bill 961 

(1990); see also Code § 63.1-250.2. 

 In Dunbar v. Hogan, 16 Va. App. 653, 658-59, 432 S.E.2d 16, 

19 (1993), we held, however, that under Code § 20-49.1, a 

voluntary acknowledgement of paternity under oath does not 

preclude a party from litigating paternity even though the 

statute provides that such acknowledgement shall be accorded the 

effect of a "judgment entered pursuant to § 20-49.8."3 We held 

 

 2 Code §§ 20-49.1 and -49.4 were first enacted in 1988, see

1988 Va. Acts. c. 866, and then amended in 1990, see 1990 Va. 

Acts c. 836. They replaced former Code § 20-61.1, which, like 

Code § 20-49.4, set forth several types of evidence, including 

blood tests, that could be introduced in an action to establish 

paternity. Code § 20-61.1 (repealed 1988). 

 3 Code § 20-49.8(B) provides: 

 A determination of paternity made by any 

other state shall be given full faith and 

credit, whether established through voluntary 

acknowledgment or through administrative or 

judicial process; provided, however, that, 

except as may otherwise be required by law, 

such full faith and credit shall be given 

only for the purposes of establishing a duty 

to make payments of support and other 

payments contemplated by subsection A. 
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that such acknowledgements are accorded treatment as a judgment 

for such purposes as administrative support orders, Code 

§ 63.1-250.1, or full faith and credit to foreign support orders 

and other payments. See Code § 20-49.8(B). Thus, even if Code 

§ 20-49.1 applied to cases where the parties had not voluntarily 

acknowledged paternity but where genetic test results affirm at 

least a 98% probability of paternity, the Dunbar rationale would 

not preclude the putative father from contesting and litigating 

the issue of paternity. When litigating the issue of paternity, 

the question then is whether Code § 20-49.1 applies and requires 

that DNA test results that affirm at least a 98% probability of 

paternity be accorded either a rebuttable or conclusive 

presumption of paternity. 

 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. McNalton, 193 Va. 

455, 461, 69 S.E.2d 445, 449 (1952)). In Dunbar, we decided only 

that under Code § 20-49.1 an acknowledgement of paternity under 

oath is not res judicata or collateral estoppel to a judicial 

adjudication of paternity; we did not consider the extent to 

which or whether Code § 20-49.1 controls or has any effect in a 

judicial proceeding to determine paternity. We hold that Code 
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§ 20-49.1, by its terms, applies only where the parties have 

voluntarily acknowledged paternity under oath, or where after 

acknowledging paternity under oath a "subsequent scientifically 

reliable genetic test[] . . . affirm[s] at least a ninety-eight 

percent probability of paternity." (Emphasis added). 

 The purpose of Code § 20-49.1, as we pointed out in Dunbar, 

was to deal with paternity claims that the parties voluntarily 

agreed upon, including those that "subsequently" were verified by 

genetic testing that affirmed a high probability of paternity. 

Code § 20-49.1 provides that those situations shall be treated as 

judgments for certain purposes, such as collection and 

enforcement of support through administrative orders or full 

faith and credit, even though there has been no formal 

adjudication of paternity. See Code § 20-49.8(B). The 

legislative history and statutory scheme make clear that Code 

§ 20-49.4 controls contested paternity disputes and Code 

§ 20-49.1 does not apply. 

 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) (statute provides that when a blood test 

from accredited laboratory shows a paternity probability of 99% 

or greater, the burden shifts to the alleged father to prove 

nonpaternity by clear and convincing evidence); Filkins v. Cales, 
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619 N.E.2d 1156, 1158 (Ohio Ct. App. 1993) (statute provides that 

genetic test results indicating a probability of 95% or greater 

raises presumption of paternity and satisfies preponderance of 

evidence burden of proof, thereby requiring presumed father to 

rebut by clear and convincing evidence); Gregory v. McLemore, 899 

P.2d 1189 (Okla. Ct. App. 1995) (statute creates rebuttable 

presumption of paternity where scientifically reliable genetic 

tests show statistical probability of paternity at 95% or more); 

In re the paternity of J.M.K., 465 N.W.2d 833, 835 (Wis. Ct. App. 

1991) (statute creates a rebuttable presumption of paternity 

where an alleged father is shown to have a statistical 

probability of paternity of 99% or higher), review denied, 471 

N.W.2d 510 (Wis. 1991). 

 Code § 20-49.1 neither expressly establishes a rebuttable 

presumption of paternity nor otherwise addresses the "host of 

technical, legal questions" presented by such a presumption. 

D. H. Kaye, Presumptions, Probability and Paternity, 30 

Jurimetrics 323, 327 (1989-90). Therefore, we decline to 

establish such a presumption under the guise of statutory 

construction. See Barnett, 6 Va. App. at 34, 366 S.E.2d at 273. 

 Rather, we hold that the Virginia General Assembly intended that 

"subsequent" genetic test results showing a probability of 

paternity of 98% or higher are to be given greater weight only 

when accompanied by a prior voluntary acknowledgement of 

paternity under oath. 
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 By contrast, Code § 20-49.4 contains no rebuttable 

presumption of paternity. To the contrary, it expressly provides 

that the genetic test results shall be considered together with 

the other evidence of paternity and given such weight as the fact 

finder determines is justified. Where there is no voluntary 

acknowledgement of paternity under oath, or where there is an 

acknowledgement but a party in interest challenges paternity and 

the genetic test results show a probability of paternity of less 

than 98%, paternity shall be established in accordance with the 

provisions of Code § 20-49.4. Because there was no 

acknowledgement of paternity here, the decision of the trial 

court will be affirmed unless, as a matter of law, clear and 

convincing evidence proves paternity. 

 Code § 20-49.4 provides that "[t]he standard of proof in any

action to establish parentage shall be by clear and convincing 

evidence. All relevant evidence on the issue of paternity shall 

be admissible." (Emphasis added). Among the nonexclusive list 

of factors that may be considered to prove paternity under Code 

§ 20-49.4 are 

 1. Evidence of open cohabitation or sexual 

intercourse between the known parent and the 

alleged parent at the probable time of 

conception; [and] 

* * * * * * * 

 3. The results of scientifically reliable 

genetic tests, including blood tests, if 

available, weighted with all the evidence. 

Id. 
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 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." Code § 8.01-680; see

Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985). 

 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 not inherently 

incredible and not inconsistent with facts in 

the record." 

Hankerson, 229 Va. at 274, 329 S.E.2d at 794 (citations omitted). 

 In order to reverse the trial court, we must find "as a matter 

of law that [DCSE] sustained [its] burden of proving" paternity 

by clear and convincing evidence. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 700, 173 S.E.2d 833, 836 (1970). 

 Here, Dr. Demers provided uncontroverted testimony that the 

genetic blood test results reported a 99.92% probability of 
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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 

 

 4 Dr. Demers' report stated "the mutation rate was included 

to estimate the chance of paternity given the phenotypes of the 

individuals tested. This type of analysis includes all of the 

genetic evidence and results in a downward adjustment of the 

cumulative paternity index and probability of paternity." 

 The statistical probability calculation also takes into 

consideration the fact that the testing methodology, as with 

other scientific testing, yields an occasional false positive or 

false negative. See D. H. Kaye, Presumptions, Probability and 

Paternity, 30 Jurimetrics 323, 333-36 (1989-90). 
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that "the credibility of witnesses and the weight accorded the 

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. 
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 Reversed and remanded.