Hankerson v. Moody, 812211

• Decision Date: 26 April 1985
• Docket Number: No. 812211,812211
• Citation: 229 Va. 270,329 S.E.2d 791
• Parties: Erica HANKERSON, etc. v. Eric O. MOODY. Record
• Court: Virginia Supreme Court

Page 791

329 S.E.2d 791

229 Va. 270

Erica HANKERSON, etc. v. Eric O. MOODY.

Record No. 812211.

Supreme Court of Virginia.

April 26, 1985.

Gregory A. Giordano, Virginia Beach (Thomas B. Shuttleworth, Clark & Stant, P.C., Virginia Beach, on brief), for appellant.

James A. Winstead, Chesapeake, on brief, for appellee.

Present: All the Justices.

COCHRAN, Justice.

Etta Hankerson filed a petition in 1980 in the juvenile and domestic relations district court under Code § 20-61.1 ¹ against Eric O. Moody for support of her daughter, Erica, born out of wedlock. Petitioner alleged that Moody was the child's father. Under court order, the mother, child, and putative father submitted to blood grouping tests, but the court refused admission of the test results and dismissed the petition.

On appeal to the circuit court, an amended bill of complaint was filed by Erica Hankerson, by her next friend, Etta Hankerson, against Moody. The court ruled that the results of the blood grouping tests were admissible under the provisions of Code § 20-61.2. ² Over Moody's objection, the test results and the testimony of expert witnesses who conducted and interpreted the tests were admitted.

After Hankerson's evidence had been completed, the court denied Moody's motion to strike the evidence. However, before Moody presented any evidence, the trial court ruled that Hankerson's evidence was insufficient and entered judgment in favor of Moody. Hankerson challenges this ruling; Moody has assigned no cross-error to the court's ruling that the results of the blood grouping tests and related testimony were admissible in evidence.

Michael Dana Corby, a laboratory supervisor at Norfolk General Hospital, performed blood grouping tests, including HLA tests, ³ on blood samples from the mother, child, and putative father. The court found him qualified to testify concerning the tests he performed. Corby detailed the testing procedures used. He testified that the tests were performed and the results were transcribed accurately. He explained the controls that were used to prevent contamination or error.

Dr. Mary Sue Leffell, director of the laboratory at Norfolk General Hospital and an assistant professor at Eastern Virginia Medical School, and Dr. Eugene R. Heise, associate professor of immunology and director of the medical immunology laboratory at Bowman Gray School of Medicine, Winston Salem, North Carolina, analyzed the results of the tests. Both Leffell and Heise were admitted as experts in the field of genotypic blood testing.

Leffell and Heise also described the controls used to insure against contamination or testing error. They indicated that HLA testing is accepted as reliable in the scientific and medical communities and is used in the United States, Europe, and other parts of the world to establish paternity. They testified that, although blood grouping tests were initially effective only to exclude an alleged father, developments in the field since the 1950s now allow inclusion of putative fathers to high degrees of probability. Leffell, characterizing the HLA test as the "single most powerful system," testified that it had been used in the United States since the mid-1970s, in Europe for a longer period, to determine paternity.

Conceding that the HLA tests could never be 100% conclusive of a child's paternity, both Leffell and Heise found a 99.95% probability that Moody was the father of Hankerson's child. He and the child each possessed two rare antigens not found in the mother. Heise provided an additional calculation which revealed that, if the evidence should show that Hankerson had sexual intercourse with men in addition to Moody during the period of conception, Moody's likelihood of paternity would be reduced only marginally, to 99.89%. Both Leffell and Heise testified to their belief beyond a reasonable doubt that Moody was the child's father.

Etta Hankerson, the child's mother, testified that she had sexual intercourse only with Moody during the entire year prior to the child's birth on July 27, 1978. During the period of conception, she had a close relationship with Moody, sometimes seeing him every day of the week and having intercourse with him two to three times a week. When she first told Moody of the pregnancy, he did not deny paternity and indicated she could keep the baby. He later urged her to have an abortion. Hankerson and Moody stopped seeing each other socially when she was about four months pregnant. During this time, "his whole attitude had changed." When the pregnancy had progressed to five or six months, he first questioned that he was the child's father.

On cross-examination, Hankerson testified that she had two other children, ages 13 and 11, born out of wedlock. She had seen neither father in recent years or during the period of this child's conception. She testified that she receives support for the second child from the child's father. She denied that she had sexual intercourse with other men during periods relevant to these proceedings. She also denied that she had harassed Moody, although she conceded that after the child's birth she was ordered by a court not to go to his office. She conceded that Moody had taken no action that would allow her to prove the child's paternity by the methods set forth in § 20-61.1.

We have this day held that § 20-61.1, before it was amended in 1982, was unconstitutional because it discriminated against illegitimate children by denying them a reasonable opportunity to assert support claims against their fathers in violation of the Equal Protection Clause of the Fourteenth Amendment. Jones v. Robinson, 229 Va. 276, ---, 329 S.E.2d 794, 799 (1985). As a consequence, trial courts, in the exercise of equity powers, could admit any probative evidence, including the results of blood grouping tests, to determine paternity by a preponderance of the evidence. We pointed out that § 20-61.1 was the statute controlling the determination of paternity but that in view of the unconstitutionality of the statute, civil nonsupport proceedings could be conducted under the provisions of Code § 16.1-241 for the benefit of illegitimate as well as legitimate children, and in such proceedings the issue of paternity could be determined. Therefore, the results of the blood grouping tests were admissible in this case. The scientific reliability of the tests was described by three expert witnesses. Moreover, the General Assembly has endorsed the HLA test as a viable method of proving paternity by including it in § 20-61.1 in 1982 as acceptable evidence. Acts 1982, c. 307. The sole issue on appeal, therefore, is whether the trial court, as the trier of fact, arbitrarily disregarded the uncontradicted testimony of unimpeached witnesses.

A trial court's findings of fact are given the same weight as jury findings. Morris v. Mosby, 227 Va. 517, 522, 317 S.E.2d 493, 497 (1984); Reiber v. Duncan, 206 Va. 657, 660, 145 S.E.2d 157, 160 (1965). The judgment of the court sitting without a jury will not be set aside unless it is plainly wrong or without evidence to support it. Code § 8.01-680; see Allsbrook v. Azalea...