An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1298


Filed: 05 August 2003

v .    


    Appeal by plaintiff from an order entered 2 April 2002 by Judge Nathan Hunt Gwyn, III, in Union County District Court. Heard in the Court of Appeals 4 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for plaintiff-appellant.

    Browne, Flebotte, Wilson & Horne, PLLC, by Holly Lorraine Saunders, for defendant-appellee.

    STEELMAN, Judge.

    On 28 October 1994, Shayla Scott Blakeney (“Blakeney”) executed an affirmation of paternity stating that defendant was the biological father of a minor child born to her on 2 August 1994. Defendant executed an acknowledgment of paternity on 15 November 1994. On the same date, Blakeney and defendant executed a voluntary support agreement wherein defendant agreed to provide health insurance for the minor child. On 18 November 1994, the trial court entered an order of paternity pursuant to N.C. Gen. Stat. § 110-132 (2001) and approved the voluntary support agreement.
    In 2001, defendant became aware of information that another individual with whom Blakeney had been sexually involved was thebiological father of the minor child. About the same time, the child's features had developed in a manner which led defendant to question whether he was the father. Subsequently, on 30 March 2001, Blakeney agreed to defendant's request to participate in DNA testing. The DNA test results showed a zero percent (0%) probability that defendant was the biological father of Blakeney's child.
    On 5 December 2001, defendant filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) (2001) requesting relief from the voluntary support agreement and the paternity order and removal of his name from the child's birth certificate. Defendant asserted he was entitled to relief on the grounds that the DNA test results excluded him as the biological father of Blakeney's child.
    At the hearing on defendant's motion, the trial court admitted the paper writing showing the DNA test results. The test was done voluntarily by defendant, Blakeney and the child and was not ordered by the trial court pursuant to N.C. Gen. Stat. § 8-50.1 (2001). The test results were admitted over two objections by plaintiff that defendant had failed to lay a proper foundation for the admission of the test results.
    The trial court granted defendant's Rule 60(b) motion, relieving defendant from the voluntary support agreement and order of paternity entered 18 November 1994 and directing defendant's name be removed from the child's birth certificate.
    In the first assignment of error, plaintiff argues the trial court erred in failing to deny defendant's Rule 60(b) motion to setaside the voluntary support agreement and underlying paternity order naming defendant as the biological father of Blakeney's minor child because it was not timely brought in accordance with Rule 60(b).
    Rule 60(b) provides:
        [T]he court may relieve a party...from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;...(6) Any other reason justifying relief from the operation of the judgment.

Under Rule 60(b)(1), (2) and (3), the motion must be made not more than one year after the judgment or order was entered. Motions made for other reasons pursuant to Rule 60(b)(6) must be made “within a reasonable time.”
    This Court recently considered a case having facts similar to those in the instant case. In State ex. rel. Davis v. Adams, 153 N.C. App. 512, 571 S.E.2d 238 (2002), the defendant, Adams, executed a voluntary support agreement and an acknowledgment of paternity stating that he was the biological father of a child born to Davis. Davis, 153 N.C. App. at 512, 571 S.E.2d at 239. On 5 November 1996, Adams executed an amended voluntary support agreement acknowledging he was the father of a second child born to Davis, re-acknowledging paternity of the first child and agreeing to contribute to the support of both Davis' children. Id. at 513, 571 S.E.2d at 239.    Adams alleged that he began to hear rumors that he was not the father of Davis' first child which led him to undergo a “DNA Parentage Test” on 22 July 1999. Id. The results of the test excluded Adams as the biological father of Davis' first child. Id. On 10 August 2000, Adams filed a motion asking the trial court to void the acknowledgment and order of paternity and the amended voluntary support agreement without stating the statute under which his motion was made. Id. The motion also requested the trial court admit the DNA test results into evidence. Id. The trial court denied this motion, and Adams appealed. Id.
    After holding the trial court properly considered the motion as one pursuant to Rule 60(b), this Court affirmed the trial court's denial of the motion. Id. at 515, 571 S.E.2d at 240-41. The Davis Court reasoned:
        Defendant in this case argues the 10 July 1995 Acknowledgment and Order of Paternity should be voided on the basis of either mistake or fraud. However, N.C.G.S. § 1A-1, Rule 60(b) contains a time limitation....The one-year time limitation in N.C.G.S. § 1A-1, Rule 60(b) is an explicit requirement which our Court cannot ignore. Further, defendant's motion cannot be considered as one for relief under Rule 60(b)(6) to circumvent this one-year limitation since the facts supporting the motion are facts which, even defendant points out, more appropriately would support consideration pursuant to (b)(1) or (b)(3). The most recent order in the present case was entered 5 November 1996. Defendant filed his motion in the cause on 10 August 2000, more than three years after the order was entered, clearly making defendant's motion untimely under N.C.G.S. § 1A-1, Rule 60(b).

Id. (citations omitted).
    In the instant case, defendant brought a motion for relieffrom the voluntary support agreement and order of paternity pursuant to Rule 60(b). Defendant's motion alleged he executed the acknowledgment of paternity based upon Blakeney's representations that he was the father of her minor child. The motion further alleged the DNA test results excluded him from being the child's biological father.
    At the hearing on the motion, defendant's counsel argued the Rule 60(b) motion was brought on the grounds of newly discovered evidence and fraud. A motion brought on these grounds must be filed not more than one year after entry of the judgment or order from which the movant seeks relief. N.C. Gen. Stat. § 1A-1, Rule 60(b). Defendant's motion was untimely since it was filed more than six years after entry of the voluntary support agreement and paternity order.
    Defendant argues on appeal that his motion was filed within a reasonable time under Rule 60(b)(6) and, therefore, it was timely made. However, the Davis Court held that a movant may not circumvent the explicit time requirement in Rule 60(b) by asserting the motion under subsection (b)(6) when the facts more appropriately fit another subsection of the rule. The facts here fit more squarely with the newly discovered evidence and fraud subsections, as defendant's counsel argued at the hearing. Under Davis, defendant's Rule 60(b) motion for relief was untimely, and the trial court erred as a matter of law in considering the motion. We remand this matter to the trial court for entry of an order denying defendant's Rule 60(b) motion.     Because we have held the trial court erred in failing to deny defendant's motion, we need not address plaintiff's remaining assignments of error.

    Reversed and remanded.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

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