                   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.
     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




                                    - 2 -
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




                                - 3 -
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




                                 - 4 -
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



                                 - 5 -
            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 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
                                               1
tests, that are relevant to prove paternity.       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



                                - 6 -
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
(..continued)
          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.




                              - 7 -
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.




                                  - 8 -
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




                               - 9 -
§ 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,




                              - 10 -
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.



                              - 11 -
      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.



                                 - 12 -
     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


                             - 13 -
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).




                              - 14 -
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.




                               - 15 -
         Reversed and remanded.




- 16 -
