Appeal by plaintiff from judgment entered 20 October 2000 by
Judge Peter L. Roda in Buncombe County District Court. Heard in
the Court of Appeals 18 October 2001.
Gum & Hillier, PA, by Patrick S. McCroskey and Howard L. Gum,
for plaintiff-appellant.
Robert E. Riddle, P.A., by Robert E. Riddle, for defendant-
appellee.
TYSON, Judge.
John S. Rice (“plaintiff”) appeals from an order granting
Loretta F. Rice's (“defendant”) motion for summary judgment, and
denying plaintiff's motions for paternity testing, joinder of an
additional party, and denial of relief pursuant to Rule 60. We
affirm the trial court's order.
I. Facts
Plaintiff and defendant were married on 5 June 1981. Three
children were born during their marriage. The parties separated on13 April 1995 and executed a separation agreement on 2 June 1995.
On 18 September 1996, plaintiff filed suit seeking absolute divorce
and requested incorporation of a separation agreement into the
divorce judgment. Judgment of absolute divorce was entered on 13
February 1997, which incorporated the separation agreement with
certain modifications by consent into the judgment.
On 23 July 1998, plaintiff filed a motion seeking to enforce
his visitation rights under the consent judgment and charged
defendant with contempt for refusing him visitation with the
children. On 19 July 1999, plaintiff filed a motion for paternity
testing.
II. Issues
Plaintiff assigns as error the trial court's: (1) granting
defendant's motion for summary judgment, (2) denying plaintiff's
motion seeking DNA paternity testing, (3) refusing plaintiff's
request for joinder of a third-party, (4) deciding the best
interests of the children prior to adjudicating issues of
paternity, and (5) granting defendant's ex-parte motion denying
plaintiff's discovery requests.
III. Summary Judgment
Plaintiff argues that the paternity of the minor children has
never been judicially determined, and that the judgment of absolute
divorce between plaintiff and defendant was not a final
determination of the paternity of the children, which raises a
disputed issue of material fact. We disagree.
“North Carolina courts have long recognized that children born
during a marriage, as here, are presumed to be the product of themarriage.”
Jones v. Patience, 121 N.C. App. 434, 439, 466 S.E
.2d
720, 723 (citations 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.'”
Ambrose v. Ambrose, 140 N.C.
App. 545, 547, 536 S.E.2d 855, 857 (2000) (quoting
Wright v. Gann,
27 N.C. App. 45, 47, 217 S.E.2d 761, 763,
cert. denied, 288 N.C.
513, 219 S.E.2d 348 (1975) (citation omitted)).
Once the issue of paternity is judicially determined however,
the parentage of children born of a marriage is no longer an open
question.
Dorton v. Dorton, 69 N.C. App. 764, 765, 318 S.E.2d 344,
346 (1984);
Withrow v. Webb, 53 N.C. App. 67, 70, 280 S.E.2d 22, 24
(1981) (where former husband could have raised issue of paternity
during divorce proceedings which included alimony, custody, and
support issues, but instead admitted that a child was born of the
marriage, was barred by
res judicata from attempting to raise
issues of paternity five years later);
Williams v. Holland, 39 N.C.
App. 141, 147, 249 S.E.2d 821, 825 (1978) (Defendant barred from
raising paternity issues by the principle of
res judicata. “That
a judgment rendered by a court having jurisdiction to do so finding
paternity to exist bars the relitigation of that issue by the
parties to the original judgment is a well established rule of law
in other jurisdictions. . . .”)
In
Ambrose,
supra, this Court noted that a father is entitled
to have blood tests administered pursuant to N.C. Gen. Stat. § 8-
50.1(b1)(1994). However, when the father has acknowledged
paternity in a sworn statement, he is estopped from relitigatingthe issue. Here, plaintiff admitted in his verified complaint for
absolute divorce and the separation agreement that there were three
children born of the marriage. In the separation agreement,
defendant received sole care, custody and control of the children.
Plaintiff requested and received visitation rights and obligated
himself to pay $1,600.00 per month child support.
In defendant's answer and counterclaim, she admitted that the
marriage produced three children. She also noted that the parties
had agreed to two amendments to their separation agreement: (1)
plaintiff's child support would be increased to $2,000.00 per
month, and (2) that the separation agreement would be incorporated
into the judgment for divorce “
and be made a part of the Order of
this Court.” (Emphasis supplied).
The final consent judgment and order for divorce entered 13
February 1997 concluded that three children were born of the
marriage, plaintiff would pay $2,000.00 per month until the
youngest child attained the age of twenty-one, and that the
separation agreement be incorporated into the judgment for divorce
and be made part of the order. Plaintiff did not appeal from that
judgment.
In July of 1998, plaintiff filed a verified motion to enforce
his visitation rights. He stated that “[b]y the terms of the
Judgment, a Separation Agreement entered into by and between the
plaintiff and defendant on June 2, 1995, was . . . incorporated by
reference into the Judgment.” Plaintiff then requested that “the
court enter an order directing the defendant to appear and show
cause as to why she should not be held in contempt of this court,both civil and criminal, for her willful disobedience of the
Judgment of this court.”
Two and one half years after the consent order and judgment
for absolute divorce, defendant has attempted to raise the issue of
paternity. His three children are now eighteen, twelve and eleven
years old. Despite plaintiff's arguments, it is illogical for the
consent order and judgment to operate as
res judicata for child
support and visitation rights, and not for issues of paternity.
“In this case the father has held himself out as the father of
the [children] . . . insisted on visitation rights and is certainly
regarded by the [children] and the outside world as the father.”
Webb, 53 N.C. App. at 71-72, 280 S.E.2d at 26. By his own verified
complaint, defendant admitted that the three children were born of
the marriage. In addition, “that the plaintiff is the father of
these . . . children was judicially determined by the order entered
on [13 February 1997] and this part of the order having been
neither attacked nor modified, it is
res judicata as to the
contention raised by plaintiff's motion.”
Dorton, 69 N.C. App. at
766, 318 S.E.2d at 346, (citing
Holland, 39 N.C. App. 141, 249
S.E.2d 821). “Even if the principle of res judicata were not
applicable . . . to grant the motion for a blood-grouping test on
this record, would open the door to unwarranted challenges of
paternity, violate public policy, and clearly result in irreparable
harm to the child whose parents appear to be bent on harassing one
another.”
Webb, 53 N.C. App. at 72, 280 S.E.2d at 26.
We hold that the divorce order and judgment, which
incorporated a separation agreement, in which plaintiff anddefendant admitted that three children were born of their marriage,
judicially established the rights and obligations of the parties,
and determined all issues of paternity. In view of our holding, it
is unnecessary to consider plaintiff's other assignments of error.
Additionally, although plaintiff appealed from the trial court's
order denying his Rule 60 motion, he has failed to assign any error
or argue any of those issues. Plaintiff's appeal from those issues
is deemed abandoned. N.C.R. App. P. 28(b)(5) (1990). The trial
court's order and judgment awarding summary judgment for defendant,
denial of plaintiff's motion for paternity testing, and denial of
plaintiff's motion to join an additional party are affirmed.
Affirmed.
Judges MARTIN and WALKER concur.
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