State ex rel. McKiney v Lotharp, (03-161) 12/02/2003

On writ of certiorari to review amended order filed 22 November 2002 by Judge Regan Miller in Mecklenburg County District Court. Heard in the Court of Appeals 19 November 2003.

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

No brief filed for defendant-appellee.

BRYANT, Judge.

    Mary L. McKinney (plaintiff) by writ of certiorari seeks review of amended order filed 22 November 2002 granting Jermaine T. Lotharp's (defendant's) motion for genetic testing.
    On 19 February 1993, defendant executed an acknowledgment of paternity as to JaMarkus Rakeem Crawford (child), born 17 August 1992. On 3 March 1993, the acknowledgment was filed in Mecklenburg County District Court along with the affirmation of paternity by Vanessa N. McKinney (mother). In addition, defendant signed and executed a Voluntary Support Agreement, approved by the trial court and filed on 10 March 1993. Also, on 10 March 1993, the trial court entered an order of paternity. Defendant agreed to provide$20.00 per week in support for the child and to provide health insurance.
    On 11 October 2002, the Mecklenburg County Support Enforcement Agency filed a motion on behalf of plaintiff, who is the child's maternal grandmother, seeking to modify the support order to require defendant to pay “adequate child support . . . of at least the statutory guideline amount” and to obtain medical insurance coverage for the child. On 30 October 2002, defendant filed a “Motion and Notice of Hearing for Modification of Child Support Order,” seeking suspension or termination of the child support order. In his motion, defendant asserted the child's mother and her family had “repeatedly claimed [he was] not the child's father,” and that he had filed a motion for DNA testing in August 1999.
    Following a hearing on 15 November 2002, the trial court entered a memorandum order, allowing defendant's motion for DNA testing and scheduling the DNA test for 4 December 2002. In an amended order entered 22 November 2002, the trial court made findings of fact and granted defendant's motion for genetic testing, which the court treated as a discovery motion. The trial court denied plaintiff's request to stay the order for genetic testing. Plaintiff then filed a motion for a temporary stay and a petition for writ of certiorari and supersedeas with this Court on 27 November 2002. This Court allowed the motion for temporary stay on 2 December 2002 and subsequently allowed the petition for writ of certiorari and supersedeas on 17 December 2002.

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    The sole issue on appeal is whether the trial court erred by ordering genetic testing when the 10 March 1993 order of paternity had not been reversed on appeal or set aside pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b). Plaintiff argues the doctrine of res judicata prevents the trial court from ordering genetic testing. We agree.
    “A party is barred under the doctrine of res judicata from contesting paternity when there is an acknowledgment of paternity or an order of paternity in effect and binding on him.” State ex rel. Bright v. Flaskrud, 148 N.C. App. 710, 712, 559 S.E.2d 286, 288 (2002); see State ex rel. Hill v. Manning, 110 N.C. App. 770, 772, 431 S.E.2d 207, 208 (1993). While “it is proper for a party to attack an acknowledgment of paternity or an order of paternity by a Rule 60(b) motion[,]” the order of paternity would remain in effect in the absence of a ruling setting it aside pursuant to Rule 60(b). Bright, 148 N.C. App. at 712, 559 S.E.2d at 288; see also N.C.G.S. § 1A-1, Rule 60(b) (2001).
    Bright controls the present case. In Bright, the defendant-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. Bright, 148 N.C. App. at 711, 559 S.E.2d at 287. Defendant-father also moved the trial court for an order compelling DNA testing to determine paternity, id. at 711-12, 559 S.E.2d at 287, and the trial court granted the motion compelling DNA testing without addressing the Rule 60(b) motion, id. at 712, 559 S.E.2d at288. On appeal, this Court held that “until the trial court [has] addressed [a] putative father's motion for relief, it [is] error for the trial court to grant his motion to compel DNA testing.”
    In the present case, defendant has not filed a Rule 60(b) motion to relieve him from the 1993 order of paternity. Unless and until defendant obtains relief from the acknowledgment of paternity and voluntary support agreement pursuant to a trial court's ruling on a Rule 60(b) motion, it is error for the trial court to grant his motion for genetic testing. See id.
    Reversed and remanded.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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