PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee, JJ., and Stephenson, S.J. 

JANET MARTIN 

 OPINION BY 

v. Record No. 062013 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 April 20, 2007 

TRACEY MYERS HOWARD 

FROM THE CIRCUIT COURT OF RUSSELL COUNTY 

Michael L. Moore, Judge 

 This appeal, awarded in response to a Petition for Review 

filed pursuant to Code § 8.01-626, concerns the interpretation 

and application of Code § 32.1-286(C).1

I 

 Tracey Myers Howard (the Plaintiff) filed suit against 

Janet Martin (the Defendant), seeking, pursuant to Code § 32.1-

286(C), the exhumation of the body of Palmer D. Martin (Palmer) 

to obtain a tissue sample for DNA testing.2

 Howard claimed that 

 1

 Code § 8.01-626 provides, in pertinent part, the 

following: 

 Wherein a circuit court (i) grants an injunction 

or (ii) refuses an injunction or (iii) having granted 

an injunction, dissolves or refuses to enlarge it, an 

aggrieved party may, within fifteen days of the 

court's order, present a petition for review to a 

justice of the Supreme Court . . . . The petition 

shall be accompanied by a copy of the proceedings, 

including the original papers and the court's order 

respecting the injunction. The justice . . . may take 

such action thereon as he considers appropriate under 

the circumstances of the case. 

2

 Howard's original complaint was filed against Martin, 

individually and as administrator of Palmer's estate, and 

against III Martin Trucking, LLC, and Martin Trucking LLC, both 

trading as Martin Trucking. 
2

she is Palmer's illegitimate daughter. The Defendant, who is 

Palmer's widow and the administratrix of his estate, filed an 

answer opposing exhumation. 

 Following an ore tenus hearing, the trial court ruled that 

the Plaintiff was entitled to exhumation. The Defendant filed a 

Petition for Review pursuant to Code § 8.01-626, and we granted 

review by order entered November 16, 2006. 

II 

 Palmer died intestate on June 19, 2005, in Russell County. 

He was survived by his spouse, Janet Martin, and two children by 

Janet. Palmer also was survived by the Plaintiff, who claims to 

be his biological daughter. 

 Palmer was born in Virginia, but he lived in Ohio as a 

teenager and young man. In the mid-1970's, he returned to 

Virginia, where he resided until his death. 

 Howard's evidence at trial was that, while in Ohio, Palmer 

dated the Plaintiff's mother, Mary Jean Myers Shelt, for 

approximately three years, ending in 1972. During that time, 

Palmer and the Plaintiff's mother engaged in an exclusive, 

intimate sexual relationship. The Plaintiff was conceived and 

born on October 10, 1972, in Ohio. Palmer proposed marriage to 

Shelt and requested that she move with him to Virginia. Shelt 

declined the proposal and remained in Ohio. 
3

 Howard's evidence further showed that, during the 

Plaintiff's childhood, Palmer regularly kept in touch with her. 

He provided support and assistance to the Plaintiff and Shelt. 

He took them on trips and vacations and brought gifts to the 

Plaintiff. When the Plaintiff was older, Palmer gave her two 

motor vehicles and the down payment on her house. He paid for 

her wedding and joined her for the father-daughter dance at the 

reception. Through the years, Palmer acknowledged to family 

members and many others that he was the Plaintiff's father. At 

one time, the Plaintiff asked Palmer if he would submit to a 

blood test to corroborate his paternity. Palmer responded that 

he did not need a blood test because he knew the Plaintiff was 

his child. 

 In opposing the exhumation request, the Defendant testified 

that the exhumation would be painful for her and her children. 

III 

A 

 Prior to the enactment of subsection C of Code § 32.1-286, 

there was no provision in the law allowing a person to seek 

exhumation of a body in order to obtain a sample for genetic 

testing to establish parentage. In Garrett v. Majied, 252 Va. 

46, 471 S.E.2d 479 (1996), we reversed a judgment granting a 

petition for exhumation under Code § 32.1-286(B). We held that 

the trial court did not have subject matter jurisdiction to 
4

grant the petition in a paternity dispute because Code § 32.1-

286(B) applied only to exhumations described in subsection A 

where cause and manner of death are at issue. Thus, we 

concluded that "Code § 32.1-286 does not authorize an exhumation 

order for the purpose of establishing paternity." Id. at 49, 

471 S.E.2d at 480. 

 In 1997, in response to our decision in Garrett, the 

General Assembly amended the exhumation statute by adding 

subsection C to allow exhumation in paternity disputes by a 

showing of "substantial evidence" of prevailing. Code § 32.1-

286(C), as amended in 1997, read as follows: 

 Upon the presentation of substantial evidence by 

a moving party that he will prevail in his attempt to 

prove, in accordance with the provisions of §§ 64.1-

5.1 and 64.1-5.2, that he is the issue of a person 

dead and buried, and in the interest of the 

furtherance of justice, a court may order the 

exhumation of the body of a dead person for the 

conduct of scientifically reliable genetic tests, 

including blood tests, to prove a biological 

relationship. The costs of exhumation and testing 

shall be paid by the moving party unless, for good 

cause shown, the court orders such costs paid from the 

estate of the exhumed deceased. 

Former Code § 32.1-286 (1997 Replacement Volume). 

 In 1999, the General Assembly again amended the statute, 

mandating that substantial proof of parentage is not required of 

a petitioner and eliminating a court's discretion to make a 

finding "in the interest of the furtherance of justice." 

Therefore, Code § 32.1-286(C), as it existed when the present 
5

litigation was filed and as it currently exists, reads as 

follows: 

 Upon the petition of a party attempting to prove, 

in accordance with the provisions of §§ 64.1-5.1 and 

64.1-5.2, that he is the issue of a person dead and 

buried, a court may order the exhumation of the body 

of a dead person for the conduct of scientifically 

reliable genetic tests, including DNA tests, to prove 

a biological relationship. The costs of exhumation, 

testing, and reinterment shall be paid by the 

petitioner unless, for good cause shown, the court 

orders such costs paid from the estate of the exhumed 

deceased. This provision is intended to provide a 

procedural mechanism for obtaining posthumous samples 

for reliable genetic testing and shall not require 

substantive proof of parentage to obtain the 

exhumation order.3

B 

 In the present case, the Defendant first contends that the 

common law "requires that exhumations be granted only upon a 

showing of 'good cause'" and that, to the extent Code § 32.1-

286(C) "might be in derogation of the common law, it is to be 

strictly construed." Therefore, the statute should be construed 

as requiring "'good cause' to the extent that the language and 

purpose of the statute permits it," and the trial court's 

exhumation order should be reversed because the Plaintiff failed 

to present evidence, "as part of her required showing of 'good 

cause,' that DNA sufficient for a definitive paternity test 

 3

 In 1999, both §§ 64.1-5.1 and –5.2 were also amended to 

make evidence of the results of scientifically reliable genetic 

tests admissible to prove paternity for the purpose of 

inheritance. 
6

could be retrieved in the specific circumstances here, e.g., 

embalming and the lapse of time since burial." 

 We reject the Defendant's good-cause contention. The two 

Virginia cases relied upon by the Defendant, Grisso v. Nolen, 

262 Va. 688, 554 S.E.2d 91 (2001), and Goldman v. Mollen, 168 

Va. 345, 191 S.E. 627 (1937), are inapposite as neither case 

involved a paternity claim; rather, both cases involved requests 

for burial relocation.4

 In enacting Code § 32.1-286(C), the General Assembly 

expressly provided that the need of a qualified illegitimate 

child to prove parentage for the purpose of inheritance is 

sufficient cause for exhumation. No other cause need be shown. 

Had the General Assembly intended to impose upon a petitioner 

the burden of showing good cause that a tissue sample could be 

retrieved that would be sufficient to establish parentage, it 

would have so provided. It did not do so. Certainly, the 

General Assembly knew how to do so, as is evidenced by the "good 

cause" required in subsection C regarding costs of exhumation 

and the "sufficient cause" required for exhumation pursuant to 

subsection B. 

C 

 4

 The cases from other jurisdictions relied upon by the 

Defendant are also distinguishable. 
7

 The Defendant further contends that, under the statute, a 

trial court "may, but is not required to, grant a request for 

exhumation for DNA testing” and that "[w]hether to grant or deny 

the request is left to the sound discretion of the court." We 

do not agree. While use of the word "may" ordinarily imports 

permission, it will be construed to be mandatory when it is 

necessary to accomplish the manifest purpose of the legislature. 

Chesapeake & O. Ry. Co. v. Pulliam, 185 Va. 908, 916, 41 S.E.2d 

54, 58 (1947); Leigton v. Maury, 76 Va. 865, 870 (1882). 

 In the present case, the use of the word "may" is 

jurisdictional and directional, rather than discretionary, and 

vests in the trial court the authority to order the exhumation. 

There is nothing in the statute to suggest that the court has 

the discretion to deny exhumation to a person who meets its 

stated requirements. The court's only discretion is limited to 

determining whether the petitioner is a "party attempting to 

prove" parentage for inheritance purposes in accordance with 

Code §§ 64.1-5.1 and -5.2. To say a trial court has the 

discretion to deny exhumation in the present case would defeat 

the manifest purpose of the General Assembly. 

IV 
8

 For the foregoing reasons, we will affirm the trial court's 

order of exhumation and remand the case to the trial court for 

further proceedings.5

Affirmed and remanded. 

 5

 We do not consider the Defendant's assignment of error 

number 2, which reads as follows: 

 The circuit court erred by granting the 

exhumation based on its misconstruction of the 

exhumation statute as providing "very little" 

discretion to deny a petition for exhumation, and as 

requiring that, in light of its findings that the 

petitioner had submitted a certain quantum of other 

evidence in support of a finding of paternity, as 

"require[ing]" the exhumation, regardless of the 

presence of other factors weighing against it. 

The assignment fails to identify "the specific errors in the 

rulings below upon which the appellant intends to rely." Rule 

5:17(c). We also do not permit amendment of assignments of 

error and, thus, do not consider the Defendant's amended 

assignment of error 2, as set forth in her brief, which purports 

to add three lines to the original assignment of error. See

Allstate Ins. Co. v. Gauthier, 273 Va. 416, 418 n.*, 641 S.E.2d 

101, 103 n.* (2007); see also White v. Commonwealth, 267 Va. 96, 

102-03, 591 S.E.2d 662, 665-66 (2004).