IREDELL COUNTY DEPARTMENT of
SOCIAL SERVICES on behalf of
CAROLYN A. CAMPBELL,
Plaintiff,
v. Iredell County
No. 98 CVD 1171
MELVIN T. (BOLLER) CLEMENT,
Defendant.
Thomas R. Young, for plaintiff-appellant.
No brief filed on behalf of defendant-appellee.
HUDSON, Judge.
Tracy N. McDonald gave birth to minor children, Candee T.
McDonald and Brandee S. McDonald, on 28 September 1988 and
Princeton D. McDonald on 9 August 1991. On 2 June 1998, Iredell
County Department of Social Services (DSS) filed a complaint
seeking to adjudicate defendant, Melvin T. (Boller) Clement, the
father of the minor children. DSS also sought child support for
the minor children. Defendant was served on 8 June 1998 by leaving
a copy of the summons and complaint with a person of suitable age
and discretion at defendant's apartment. On 4 September 1998, the
trial court adjudicated defendant the father of the minor childrenand ordered defendant to pay support and pay back past paid public
assistance. Defendant did not appeal.
In October of 2001, the trial court ordered defendant to
appear and show cause why he ought not be held in contempt for
failure to comply with the support order and, in November of 2001,
defendant appeared in enforcement court concerning support
arrearages for the minor children. After a hearing, the trial
court concluded that the previous order remained in effect and
determined that defendant's arrearages amounted to $1339.40.
On 3 December 2001, defendant move[d] the Court for DNA
tests, and for cancellation of the existing child support Order,
and for reimbursement of amounts paid. Two weeks later, defendant
filed a Rule 60(b) motion stating that Tracy McDonald committed
fraud when she named the Defendant as the father of these
children, that [g]ood cause exists to justify relief from the
operation of this judgment, and again requesting DNA testing of
the three minor children and relief from the earlier orders. Judge
Michael held a hearing on 4 February 2002. At the beginning of the
hearing, DSS objected to the receipt of testimony on the grounds of
res judicata. The trial court stated it would hear evidence and
then consider DSS's position. Defendant testified that he first
learned that he had been ordered to pay child support for the three
minor children in the year 2000, when support was taken out of his
paycheck. He further testified that the mother of the children
told him that she was two months pregnant with twins when he met
her. DSS moved to dismiss the motion on grounds of res judicataand collateral estoppel after defendant rested. The trial court
denied DSS's motion. Carolyn Campbell, the maternal grandmother of
the three minor children subsequently testified that her daughter
and defendant had lived together and that defendant was the father
of the children.
In his 13 February 2002 order, Judge Michael indicated that
the hearing was upon motion of the Defendant for a DNA test, and
he found and concluded that [g]ood cause exists to justify
allowing the Defendant to have the DNA tests[.] He then ordered
the three children and defendant to submit to paternity tests at
defendant's expense. The order stated that DNA testing should be
arranged by the Iredell County Child Support Enforcement Agency as
soon as possible. DSS appealed from the order and filed motions
to stay enforcement and for injunctive relief. The trial court
denied the motions on 1 March 2002. On 22 March 2002 this Court
allowed DSS's petition for writ of certiorari to review Judge
Michael's order and petition for writ of supersedeas to stay
enforcement of the order.
The issue before this Court is whether the trial court erred
by granting defendant's motion compelling DNA testing. We find
State of N.C. ex rel. Bright v. Flaskrud, 148 N.C. App. 710, 559
S.E.2d 286 (2002) controls this case. In Flaskrud, the mother of
a child born out of wedlock brought an action to enforce a support
order against the adjudicated father, who had executed an
acknowledgment of paternity certifying that he was the natural
father of the child. The adjudicated father filed a Rule 60(b)motion asking the trial court to set aside the order of paternity
and the voluntary consent to support order. The adjudicated father
also moved for an order compelling DNA testing to determine
paternity. The trial court granted the motion to compel DNA
testing to determine paternity, without setting aside the
acknowledgment and order of paternity. Upon appeal, this Court
held that the trial court was required to address the adjudicated
father's motion for relief from judgment or order, thereby
reopen[ing] the issue of paternity, before granting his order
compelling DNA testing. Id. at 712, 599 S.E.2d at 288.
Here, defendant filed a Rule 60(b) motion seeking relief from
the judgment naming him the father of the three minor children and
seeking DNA tests. Like Flaskrud, the trial court ruled on
defendant's motion for DNA tests without first addressing
defendant's Rule 60(b) motion to reopen the issue of paternity.
[U]ntil the trial court addresses the defendant's Rule 60(b)
motion, it is error for the trial court to grant his motion to
compel DNA testing. Id. Accordingly, the trial court's order is
reversed and remanded.
Reversed and Remanded.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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