Appeals by defendant from order filed 8 August 2001 by Judge
Monica M. Bousman and from orders filed 26 October 2001 by Judge
Alice C. Stubbs in Wake County District Court. Heard in the Court
of Appeals 8 October 2002.
As the issues presented by defendant's appeals to this Court
arise out of the same action and involve common questions of law,
we have consolidated the appeals pursuant to Rule 40 of the North
Carolina Rules of Appellate Procedure.
Hatch, Little & Bunn, L.L.P., by Helen M. Oliver, for
plaintiff appellee.
Staci D. Barbour pro se defendant appellant.
GREENE, Judge.
Staci Day Barbour (Defendant) appeals an order for temporary
custody filed 8 August 2001 and orders for contempt andmodification of temporary custody filed 26 October 2001.
(See footnote 1)
On 23 February 2001, Tony Smith (Plaintiff) filed a complaint
against Defendant in the Wake County District Court. The complaint
alleged “Plaintiff and Defendant [were] the biological parents of
one minor child, . . . Kayla Olivia Smith, born November 6, 1999”
and stated “[t]he parties ha[d] never been married.” Plaintiff
sought both temporary and permanent custody of the child. On the
same day, Plaintiff initiated a legitimation action in the Wake
County Superior Court.
Defendant responded on 26 April 2001 by filing a motion for
change of venue to Johnston County, where she and the child
resided, based on the convenience of the witnesses. On 21 May
2001, Plaintiff filed a motion for a mental examination of
Defendant alleging Defendant had “exhibited numerous mental
conditions in the past, including . . . agoraphobia and extreme
anxiety.” On 20 July 2001, Defendant filed an amended motion to
dismiss the complaint.
(See footnote 2)
In her motion, Defendant noted: the minor
child's father was Bilal Kanawati; Plaintiff had not previously
been adjudicated the child's father; Plaintiff did not have legal
standing to bring a custody action; and Plaintiff had filed a
separate action for legitimation in the Wake County Superior Court.
The hearing on Plaintiff's request for temporary custody andhis motion for a mental evaluation revealed Plaintiff believed
himself to be the biological father of Defendant's daughter.
Plaintiff was paying child support and had visited with the child
until May 2001 “when [D]efendant stopped all visitation.”
Plaintiff requested the district court allow him visitation pending
the outcome of the legitimation proceeding in the superior court.
In an order entered 8 August 2001, the district court treated
Plaintiff's complaint as initiating an action for paternity in
addition to custody and found in pertinent part that:
4. Defendant is the biological mother of the
minor child of this action . . . . Defendant
was married to Bilal Kanawati at the time of
the child's birth.
5. Plaintiff believes himself to be the father
of the minor child of this action. Plaintiff
had visitation with the minor child from [her]
birth . . . until May 2001, the minor child
shares Plaintiff's last name, and . . .
Defendant never indicated to Plaintiff that he
may not be the biological father of the minor
child until after the institution of this
action.
. . . .
15. At the time of this hearing, Defendant had
not filed an [a]nswer to the [c]omplaint. In
order for the [district] [c]ourt to permit a
hearing on [the] [m]otion to [c]hange [v]enue
for convenience of witnesses and promoting the
ends of justice, an [a]nswer must have been
filed prior to the filing of the [m]otion to
[c]hange [v]enue.
. . . .
22. There are two pending actions filed in
Wake County, this action and the action to
legitimate the minor child.
. . . .
24. Wake County is a proper and convenient
forum to hear this matter.
25. Plaintiff has standing to pursue this
action at the present time.
26. Defendant has suffered from anxiety
disorders and . . . it is in the best interest
of the minor child of this action and there is
good cause to [o]rder a [m]ental [e]valuation
of . . . [D]efendant.
27. It appears to the [district] court, on its
own motion[,] that a paternity test would
resolve the issue of whether Plaintiff is the
biological father of the minor child . . . .
28. It is in the best interest of the minor
child that Plaintiff be permitted visitation
. . . .
The district court concluded “[t]he best interest of the minor
child will be served by the provisions contained in the [o]rder
. . . , and the parties are fit and proper persons to have the[ir]
[assigned] roles.” The district court then denied both Defendant's
motion for a change of venue and her motion to dismiss and granted
Plaintiff temporary visitation. The district court also ordered
the parties to submit to a paternity test. In the event the
paternity test resulted in a finding that Plaintiff was the child's
biological father, the district court further ordered Defendant to
undergo a mental evaluation. Defendant appealed from this order on
14 August 2001. She filed her answer to Plaintiff's complaint on
28 August 2001.
On 1 October 2001, Plaintiff filed a motion for an order to
show cause because, although the results of the court-ordered
paternity test indicated Plaintiff was the child's biologicalfather, Defendant had not undergone a mental evaluation. The
district court granted Plaintiff's motion and entered an order to
show cause why Defendant was not in contempt of the 8 August 2001
order. Also, on 1 October 2001, Plaintiff filed a motion for
modification of the 8 August 2001 temporary custody order based on
the paternity test results.
Defendant responded on 12 October 2001 by filing an “Objection
and Motion to Dismiss Contempt of Court Action” and a “Motion to
Dismiss Motion for Modification of Temporary Custody Order.”
Defendant argued in both motions that due to the pendency of her
appeal from the 8 August 2001 order, the district court did not
have continuing jurisdiction to rule on Plaintiff's motions.
In an order entered 26 October 2001, the district court found
that:
4. Plaintiff and Defendant are the biological
parents of the minor child . . . .
. . . .
7. Plaintiff desires additional time with his
minor child.
. . . .
10. This matter will not be set for a
permanent custody hearing for some time, as
Defendant was ordered to undergo a mental
evaluation which has not commenced as of the
date of this hearing.
. . . .
12. Plaintiff and Defendant are fit and proper
persons to share joint legal custody of their
minor child, . . . with Defendant having
primary physical custody and Plaintiff having
secondary physical custody.
The district court then denied Defendant's motion to dismiss and
increased Plaintiff's visitation rights. In a concurrent order,
the district court found Defendant in civil contempt of the 8
August 2001 order for failing to submit to a mental evaluation
following the paternity test results. The district court
sentenced Defendant to thirty days custody with the opportunity to
purge herself of contempt by obtaining a mental evaluation within
thirty days of the entry of the contempt order.
_____________________________
The issues are whether: (I) the district court erred in
denying Defendant's motion for a change of venue; (II) Plaintiff's
filing of a legitimation action in the superior court divested the
district court of subject matter jurisdiction to adjudicate the
issue of paternity; and (III) the district court erred in granting
Plaintiff temporary visitation.
I
Defendant first argues the district court erred in denying her
motion for a change of venue because Defendant and her daughter
live in Johnston as opposed to Wake County.
Pursuant to N.C. Gen. Stat. § 1-83(2) “[t]he court may change
the place of trial . . . [w]hen the convenience of witnesses and
the ends of justice would be promoted by the change.” N.C.G.S. §
1-83(2) (2001). “Whether to transfer venue for this reason,
however, is a matter firmly within the discretion of the trial
court and will not be overturned unless the court manifestly abused
that discretion.”
Centura Bank v. Miller, 138 N.C. App. 679, 683,532 S.E.2d 246, 249 (2000). Moreover, “motions for change of venue
based on the convenience of witnesses, pursuant to section 1-83(2),
must be filed after the answer is filed.”
McCullough v. Branch
Banking & Tr. Co., 136 N.C. App. 340, 350, 524 S.E.2d 569, 575-76
(2000)
. In this case, Defendant, prior to filing her answer,
requested a change of venue based on the convenience of the
witnesses. Because we see no abuse of discretion, the district
court properly denied her request.
II
Defendant next asserts Plaintiff's filing of a legitimation
action in the superior court divested the district court of subject
matter jurisdiction to adjudicate the issue of paternity. We
agree.
In a legitimation action, upon the putative father's verified,
written petition to the clerk of the superior court and the clerk's
determination that petitioner is the father of the child, “the
[clerk] may . . . declare and pronounce the child legitimated.”
(See footnote 3)
N.C.G.S. § 49-10 (2001). The legitimation serves to confer onto
the father and mother all of the lawful
parental privileges and rights, as well as all
of the obligations which parents owe to their
lawful issue, and to the same extent as if
said child had been born in wedlock, and toentitle such child by succession, inheritance
or distribution, to take real and personal
property by, through, and from his or her
father and mother as if such child had been
born in lawful wedlock.
N.C.G.S. § 49-11 (2001);
see also N.C.G.S. § 49-13 (2001) (right to
have child's surname changed to father's). An adjudication of
paternity, on the other hand, only serves to equalize between the
child's father and mother “the rights, duties, and obligations
. . . with regard to support and custody of the child.” N.C.G.S.
§ 49-15 (2001). As legitimation thus vests greater rights in the
parent and the child than an order adjudicating the child's
paternity,
(See footnote 4)
see N.C.G.S. §§ 49-11, 49-13, 49-15, the legitimation
proceeding should be given preference when separate actions for
both legitimation and paternity are filed.
(See footnote 5)
See Lewis v. Stitt, 86
N.C. App. 103, 105, 356 S.E.2d 398, 399 (1987)
(
holding that once
a child has been legitimated, an action for paternity can no longer
be maintained).
In this case, Plaintiff filed both the custody action in the
district court, which the district court treated as including anaction for paternity, and the legitimation action in the superior
court. Because the issue of paternity is central to both actions
and the legitimation action takes priority over a paternity action,
the district court was divested of subject matter jurisdiction to
decide the issue of paternity.
Consequently, it was error for the
district court to order a paternity test in this case.
III
While the district court erred in considering the issue of
paternity during the pendency of the legitimation action, we also
need to determine whether the district court nevertheless had the
authority to enter a temporary custody order. Defendant argues the
district court lacked jurisdiction to do so because Plaintiff, in
the absence of an adjudication of paternity, was a third party
without standing. We disagree.
Both parents and third parties have a right to sue for
custody.
See N.C.G.S. § 50-13.1(a) (2001) (“[a]ny parent,
relative, or other person . . . claiming the right to custody of a
minor child may institute an action or proceeding for the custody
of such child”). In a custody dispute between a parent and a non-
parent, the non-parent must first establish that he has standing,
based on a relationship with the child, to bring the action.
See
Ellison v. Ramos, 130 N.C. App. 389, 394, 502 S.E.2d 891, 394
(1998). Thus, “where a third party and a child have an established
relationship in the nature of a parent-child relationship, the
third party does have standing as an 'other person' under N.C. Gen.
Stat. § 50-13.1(a) to seek custody.”
Id. at 395, 502 S.E.2d at895. The father of a child born out of wedlock will be treated as
a third party unless he has either legitimated the child pursuant
to sections 49-10, 49-12, or 49-12.1 or had his paternity
adjudicated under section 49-14.
See Rosero v. Blake, 150 N.C.
App. 250, 255-56, 563 S.E.2d 248, 252-53 (2002).
While Plaintiff's legitimation action was still pending at the
time the district court entered its temporary custody order in this
case, Plaintiff's status for purposes of temporary custody remained
that of a third party under
Ellison. Yet even as a third party,
Plaintiff had standing to bring this action because the district
court's findings that the child shared Plaintiff's last name and
Plaintiff had visited the child since her birth two years prior to
this action indicated the existence of a sufficient relationship.
(See footnote 6)
As such, the trial court had the authority to enter a temporary
custody order.
It was, however, error for the trial court to order temporary
visitation to Plaintiff in the absence of any notice to the child's
presumed father, Bilal Kanawati, who was a necessary party to the
action. “The term 'necessary party' embraces all persons who have
a claim or material interest in the subject matter of the
controversy, which interest will be directly affected by the
outcome of the litigation.”
Lombroia v. Peek, 107 N.C. App. 745,
750, 421 S.E.2d 784, 787 (1992); N.C.G.S. § 1A-1, Rule 19(b)(2001). In an action brought by a putative father or a non-parent
claiming custody of a child born during the mother's marriage to
her husband, the husband is thus a necessary party to the
proceeding, unless he has previously been determined not to be the
child's father.
See Lombroia, 107 N.C. App. at 750, 421 S.E.2d at
787. Because Bilal Kanawati, Defendant's former husband, was a
necessary party in this case but did not receive notice of the
temporary custody proceeding, the trial court erred in entering its
8 August 2001 order in its entirety.
(See footnote 7)
As the trial court lacked subject matter jurisdiction to hear
either the paternity or the custody action, this case must be
reversed as to the paternity portion and reversed and remanded as
to the custody portion
(See footnote 8)
of the district court's 8 August 2001
order. Furthermore, all orders in this case entered after 8 August
2001 based on the results of the paternity test ordered by the
district court are void. This includes the district court's orderholding Defendant in civil contempt.
(See footnote 9)
Reversed and remanded in part.
Judges WYNN and McGEE concur.
Footnote: 1