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.
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.
2
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
3
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
4
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.
5
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.
6
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
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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).
8