State o/b/o Orr v Wilson, (03-264) 10/21/2003

Appeal by defendant from orders entered 6 August 2002, nunc pro tunc 25 June 2002, and 12 November 2002, nunc pro tunc 25 June 2002, by Judge Victoria Roemer in Forsyth County District Court. Heard in the Court of Appeals 29 September 2003.

Forsyth County Department of Social Services, by Assistant County Attorney John L. McGrath, for plaintiff-appellee.

The Teeter Law Firm, by Kelly Scott Lee, for defendant- appellant.

    EAGLES, Chief Judge.

    On 4 September 1987, the State of North Carolina filed criminal charges against defendant Edward Wilson alleging inadequate support of an illegitimate child [87 CR 23884]. Defendant was ordered to take a blood test to determine parentage, and the results showed a 99.11% probability that defendant was the father of Wyteria N. Wilson. On 29 December 1987, defendant was convicted in district court and ordered to pay child support. Defendant appealed to superior court. However, on 23 June 1989, the State entered a notice of dismissal of the charges and withholding from defendant's wages for child support was terminated.
    On 23 April 2002, the Forsyth County Department of Social Services (“Forsyth County DSS”), on behalf of Cheryl Orr, filed a complaint against defendant seeking child support and reimbursement for public assistance previously paid for Wyteria. Forsyth County DSS alleged that defendant was Wyteria's father. Defendant filed an answer to the complaint denying paternity. Additionally, defendant asserted in a counterclaim that the matter had “been previously adjudicated in case number 87 CR 23889 [sic]” and “defendant through a paternity test was found not to be the father of the minor child Wyteria N. Wilson.” Accordingly, defendant claimed that plaintiff's complaint was barred by res judicata.
    On 6 August 2002, nunc pro tunc 25 June 2002, an order was entered finding defendant responsible for paying support for Wyteria. The trial court ordered defendant to pay $285.00 per month in child support, and $75.00 per month to be applied to child's past paid public assistance in the amount of $1,801.00. An amended order was entered on 12 November 2002, nunc pro tunc 25 June 2002, but defendant was still found responsible and ordered to pay the same amounts as in the previous order. Defendant appeals.
    Defendant first argues that the trial court should have dismissed the case under the doctrine of res judicata. Defendant contends that when the State dismissed the charges against him, itconstituted a judgment on the merits which barred the State from trying the matter here. This argument is not persuasive.
    In County of Rutherford ex. rel. Hedrick v. Whitener, 100 N.C. App. 70, 394 S.E.2d 263 (1990), the Rutherford County Child Support Enforcement Agency filed an action seeking to establish paternity, set child support, and recover reimbursement for public assistance paid to support the defendant's minor child. Id. at 72, 394 S.E.2d at 264. The defendant claimed that the action was barred by res judicata because the State of North Carolina had previously prosecuted the defendant for failure to pay child support for the minor child and to establish the child's paternity. The criminal action for paternity and non-support was decided in defendant's favor. Id. at 75, 394 S.E.2d at 265. This Court held that Rutherford County's claim was not barred by res judicata or collateral estoppel because the State was not in privity with the County. Id. at 76, 394 S.E.2d at 266. This Court relied on the fact that “the County had no control over the previous criminal litigation, and nothing in the record indicates that the interest of the County was legally represented in the criminal trial.” Id.
    In the case sub judice, we likewise conclude that res judicata does not bar plaintiff's action. There is no evidence in the record to indicate that the interest of the Forsyth County DSS was represented by the State in the 1987 criminal action against defendant. Thus, Forsyth County DSS and the State were not in privity. Id.; see also State ex rel. Tucker v. Frinzi, 344 N.C.411, 474 S.E.2d 127 (1996). Accordingly, the assignment of error is overruled.
    Defendant next argues that insufficient evidence supported the trial court's determination of paternity. Defendant contends that the paternity test, as well as an admission of paternity from the prior dismissed criminal case, were not competent evidence. Furthermore, defendant argues that there was no foundation or authentication provided by the Forsyth County DSS when the evidence was admitted.
    After careful review of the record, briefs and contentions of the parties, we affirm. This Court has stated that:
        "If the appellant intends to urge on appeal that a finding or conclusion of the trial court is unsupported by the evidence or is contrary to the evidence, the appellant shall file with the record on appeal a transcript of all evidence relevant to such finding or conclusion." Similarly, Rule 9 of the North Carolina Rules of Appellate Procedure requires the appellant to include in the record on appeal "so much of the evidence . . . as is necessary for an understanding of all errors assigned." It is the duty of the appellant to ensure that the record is complete. "An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court."

Hicks v. Alford, 156 N.C. App. 384, 389-90, 576 S.E.2d 410, 414 (2003)(citations omitted)(emphasis added). Here, defendant has failed to include either a transcript, a narrative of the evidence, or a complete copy of the paternity test to which he objects in the record on appeal. Thus, defendant has failed to provide a sufficient record from which it can be determined whether the trialcourt's findings of fact are supported by competent evidence. Id. Accordingly, the assignment of error is overruled.
    Defendant next argues that the trial court's findings of fact and conclusions of law do not support the award of $285.00 per month in child support and the payment of $75.00 per month to be applied to defendant's arrearage for past-paid public assistance. Specifically, defendant contends that the order contains no findings of fact as to the reasonable needs of the child or either parents' ability to pay.
    We affirm. “The amount of a parent's child support obligation is determined by application of The North Carolina Child Support Guidelines . . . .” Barham v. Barham, 127 N.C. App. 20, 24, 487 S.E.2d 774, 777 (1997), aff'd per curiam, 347 N.C. 570, 494 S.E.2d 763 (1998). However,
        [a] trial court may deviate from the Guidelines when it finds, by the greater weight of the evidence, application of the Guidelines: (1) would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support; or (2) would be otherwise unjust or inappropriate.

Id. (citing G.S. § 50-13.4(c); Guilford County ex rel. Easter v. Easter, 344 N.C. 166, 169, 473 S.E.2d 6, 7-8 (1996)). Here, defendant has failed to include a copy of the child support worksheet, the transcript, or any other documentation in the record on appeal from which the Court could determine whether the trial court deviated from the Guidelines. Since there is insufficient documentation in the record for us to determine whether the trial court deviated from the Guidelines, we cannot determine whether thetrial court was required to make any findings of fact to support said deviation. As stated above, “[i]t is the duty of the appellant to ensure that the record is complete.” Hicks, 156 N.C. App. at 389, 576 S.E.2d at 414 (emphasis added). This Court will not assume error by the trial court when none appears on the record. Accordingly, we affirm.
    Affirmed.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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