Appeal by defendant from order entered 8 February 1999 by
Judge Kenneth F. Crow in Craven County District Court. Heard in
the Court of Appeals 19 September 2000.
No brief filed for plaintiff-appellee.
McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III,
and Kirby H. Smith, III, for defendant-appellant.
MARTIN, Judge.
Plaintiff, Christine Huskey Ambrose, brought this action
seeking custody, child support, and past child support. The record
tends to show that plaintiff met defendant, Matthew Thomas Ambrose,
in December 1991 and they soon began an intimate relationship. On
18 April 1994, plaintiff informed defendant that she was pregnant
and that he was the father of the unborn child. Defendant
testified that he had not had sexual relations with plaintiff
during the period from 1 March 1994 through 23 April 1994 and that
he had doubt as to whether he was the father. However, in a
subsequent meeting, plaintiff assured defendant that he was the
father because she had not been intimate with any other person.
On 13 May 1994, plaintiff and defendant were married; on 1January 1995, plaintiff gave birth to a daughter, Elizabe
th Ann.
The couple separated on 12 November 1995 and subsequently entered
into a separation agreement on 19 November 1996 in which defendant
agreed to pay child support.
In early 1998, plaintiff allegedly told defendant that he was
not the father of Elizabeth Ann. On 10 August 1998, plaintiff
filed her complaint in the present action seeking, inter alia, past
due child support. Defendant did not answer the complaint, and a
default judgment was entered 17 September 1998. Defendant then
moved to set aside the default judgment and filed an answer to
plaintiff's complaint which included a request for an appropriate
genetic test to establish paternity. The trial court allowed
defendant's motion to set aside the default judgment, but denied
defendant's request for a paternity test. Following the court's
denial of defendant's request for a paternity test, defendant
signed an agreement consenting to pay child support for Elizabeth
Ann and resolving all other pending issues, which was reduced to a
memorandum of order and judgment. On 8 February 1999, a formal
order denying the paternity test and incorporating the memorandum
of order and judgment was entered. From this order, defendant
appeals.
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Defendant assigns error to the district court's denial of hisrequest for genetic testing to establish paternity. G
enerally, apaternity test is permitted when a dispute over paternity arises:
[i]n the trial of any civil action in which
the question of parentage arises, the court
shall, on motion of a party, order the mother,
the child, and the alleged father-defendant to
submit to one or more blood or genetic marker
tests, to be performed by a duly certified
physician or other expert . . . .
N.C. Gen. Stat. § 8-50.1(b1). In
State v. Fowler, the North
Carolina Supreme Court noted “[t]here can be no doubt that a
defendant's right to a blood test is a substantial right and that,
upon defendant's motion, the court must order the test when it is
possible to do so.” 277 N.C. 305, 309, 177 S.E.2d 385, 387 (1970).
Nevertheless, an exception to this rule arises when the issue of
paternity has already been litigated, or when the father has
acknowledged paternity in a sworn written statement. N.C. Gen.
Stat. § 110-132. In cases such as these, the individual
questioning paternity is estopped from re-litigating the issue.
Withrow v. Webb, 53 N.C. App. 67, 280 S.E.2d 22 (1981). In cases
where the issue of paternity has not been litigated, however, or in
cases where the alleged father has never admitted paternity, G.S.
§ 8-50.1 controls and the request for a paternity test will be
allowed.
In the present case, the trial court found, apparently relying
on
Jones v. Patience,
121 N.C. App. 434, 466 S.E.2d 720,
disc.
review denied, 343 N.C. 307, 471 S.E.2d 72 (1996), “[d]efendant
offered no evidence that any other man had acknowledged paternity
of the minor child . . .” and denied defendant's request for a
paternity test. In
Jones, the defendant-mother requested apaternity test in order to prove that her ex-husband was not the
child's natural father and thus not entitled to visitation rights.
Noting the marital presumption regarding children born during a
marriage, the Court said, “North Carolina courts have long
recognized that children born during a marriage, as here, are
presumed to be the product of the marriage.”
Id. at 439, 466
S.E.2d at 723 (citations omitted). While recognizing that this
marital presumption is “ordinarily” rebuttable by evidence of a
blood test, the Court stated,
“in the context of a custody dispute
between the mother, and her husband or former spouse, concerning a
child born during their lawful marriage, the marital presumption is
rebuttable only upon a showing that another man has formally
acknowledged paternity . . . .”
Id. (citations omitted) (emphasis
added). The Court rejected the mother's attempts to block the
visitation rights of a man willing to maintain his role as father
in the absence of a showing that another man had formally admitted
paternity.
Id. Otherwise, the mother would have the authority to
illegitimate her own children, which stands in conflict with the
public policy of this State.
Id. at 440, 466 S.E.2d at 723.
In
Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972), the
North Carolina Supreme Court permitted the introduction of blood-
grouping tests to prove that a man could not be the father of a
child when a question of paternity arose in a civil action. In
Wright, the Supreme Court noted that a blood test can rebut the
presumption of paternity which attaches when a child is born during
a marriage: Although we continue to recognize its primary
importance in preserving the status of
legitimacy of children born in wedlock, this
presumption must give way before dependable
evidence to the contrary. Blood-grouping
tests which show that a man cannot be the
father of a child are perhaps the most
dependable evidence we have known.
Id. at 172, 188 S.E.2d at 325-26 (citation omitted). The
presumption of paternity is rebuttable because a man will not be
required to support a child not his own; conversely, “[t]he father
of an illegitimate child has a legal duty to support his child.”
Wright v. Gann, 27 N.C. App. 45, 47, 217 S.E.2d 761, 763 (1975)
(citing G.S. § 49-2),
cert. denied, 288 N.C. 513, 219 S.E.2d 348
(1975).
Jones, therefore,
must be construed in the narrow context
of a custody dispute when the mother challenges the paternity of
her former spouse; in that circumstance, the presumption of
paternity cannot be overcome unless another man has come forward
and formally acknowledged paternity.
In the present case, plaintiff filed suit for payment of past
due child support and defendant answered by requesting a genetic
test to determine paternity of the child. Defendant is not barred
from contesting paternity because the issue had not been litigated
and because defendant never formally acknowledged paternity in the
manner prescribed by G.S. § 110-132.
Jones v. Patience does not
apply to bar defendant's right to a genetic test under these facts,
and defendant was not required to present evidence that another man
had acknowledged paternity in order for the court to authorize the
test. Pursuant to
Wright v. Wright, defendant is entitled to an
appropriate test to establish paternity. Thus, we remand this caseto the district court for a new hearing with instructions to order
a test to establish paternity. Because of this determination, we
need not address the remaining issues defendant has raised on
appeal.
Reversed and remanded.
Judges GREENE and EDMUNDS concur.
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