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.




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