An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-618


Filed: 19 April 2005

ex rel. on behalf of SHENELLE WRIGHT,

         v.                                Guilford Cou nty
                                        No. 97 CvD 2494

    Appeal by plaintiff from order entered 14 January 2004 by Judge Patrice A. Hinnant in Guilford County District Court. Heard in the Court of Appeals 11 April 2005.

    Deputy County Attorney Michael K. Newby, for plaintiff appellant.

    No brief filed on behalf of defendant appellee.

    McCULLOUGH, Judge.

    Guilford County, on behalf of plaintiff-mother Shenelle Wright, appeals from an order of the district court setting aside an adjudication of paternity and an order of child support pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2003). For the reasons set forth below, we reverse.
    The record reflects that the minor child was born to plaintiff-mother on 14 September 1995. In its capacity as the designated representative of Guilford County, the Guilford County Child Support Enforcement Agency filed a civil complaint against defendant on 22 December 1997, seeking an adjudication of paternityand an order requiring defendant to pay child support, to provide medical insurance coverage for the minor child, and to reimburse the County for past public assistance provided to the child. See N.C. Gen. Stat. § 110-130 (2003). After a hearing held 16 March 1998, at which defendant “admit[ted] to being the father of the child[,]” the district court entered an order on 23 March 1998, adjudicating defendant to be the minor child's father and ordering him to pay monthly child support in the amount of $201.00.
    Responding to a motion by respondent-mother seeking an increase in his monthly child support obligation, defendant filed a “Motion for Relief from Order & to Terminate Child Support” on 21 October 2003. In his motion, defendant made no reference to the district court's 23 March 1998 adjudication of paternity. Instead, he challenged a 17 March 1999 “Child Support Transmittal Order” which, while not included in the instant record on appeal, appears also to have noted his acknowledgment of paternity. Defendant sought to set aside the order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b), based on the results of subsequent DNA analysis establishing that he is not the minor child's biological father. As grounds for relief under Rule 60(b), defendant alleged that plaintiff-mother ”fraudulently misrepresented to the Defendant that he was the father of the minor child and adamantly denied that she had sexual intercourse with anyone else during the time of the minor child's conception.” He argued that a refusal by the court to set aside the adjudication of paternity “would deprive the Defendant of his right to terminate child support for a child thatis not his.”
    In its order allowing defendant's motion, the trial court made the following relevant findings of fact:
                4.    The Defendant and Plaintiff were never married.

        5.            [The] minor child was born to the Plaintiff . . . on September 14, 1995. The Plaintiff named the Defendant as the father of the minor child.

        6.            On March 17, 1999, a Child Support Transmittal Order was entered stating that the Defendant admits paternity.

        7.            As the child grew and developed he looked and acted nothing like the Defendant. Based on these observations, the Defendant suspected he was not the biological father of the minor child and sought a paternity test. The facts leading the Defendant to seek a paternity test were not in existence at the time the Child Support Transmittal Order was entered.

        8.            The Defendant is not the biological father of the minor child pursuant to a genetic test performed by the DNA Diagnostics Center on September 29, 2003.

Based on these findings, the court concluded as follows:
        13.            That the Defendant made his Motion within a reasonable time.

        14.            That the information regarding the child's paternity was not newly discovered evidence.

        . . . .

        16.            That it is appropriate to set aside the March 17, 1999 Child Support Transmittal Order and any other Order in this case naming the Defendant as father of the minor child under Rule 60(b)(6) because the facts in this case do not correspondto the specific situation in Rule 60(b)(1)-(5).

As requested by defendant, the court set aside the 1999 Child Support Transmittal Order and “any other Order in this case listing [him] as the biological father of the minor child[.]”
    Plaintiff argues on appeal that the district court erred in allowing relief under Rule 60(b), because defendant filed his motion outside the relevant limitation period prescribed by the legislature. We agree.
    N.C. Gen. Stat. § 1A-1, Rule 60(b) allows the trial court to relieve a party from a final judgment, order, or proceeding for any of 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;

                . . . [or]

                (6)    Any other reason justifying relief from the operation of the judgment.

However, the Rule requires the party seeking relief to file the motion “within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” N.C. Gen. Stat. § 1A-1, Rule 60(b).
    Defendant's motion did not identify the subsection of Rule60(b) under which he sought relief, but alleged as the basis therefor that his prior admission of paternity was the product of plaintiff-mother's misrepresentation that he was the child's father and her claim that she had not had sex with anyone else during the relevant period. The trial court expressly awarded relief pursuant to Rule 60(b)(6), concluding that the circumstances at issue did not fall within any of the categories contemplated by Rule 60(b)(1)-(3), and that defendant filed his motion “within a reasonable time” in accordance with the Rule.
    In State ex rel. Davis v. Adams, the defendant executed an acknowledgment of paternity and a voluntary child support agreement in 1995, agreeing to contribute to the support of a child born out of wedlock in 1994. 153 N.C. App. 512, 512-13, 571 S.E.2d 238, 239 (2002). After hearing “rumors that he might not be the father” of the child, defendant obtained a DNA test in 1999, which excluded him as the child's biological father. Armed with this genetic evidence, defendant moved in 2000 to void the 1995 acknowledgment of paternity and voluntary child support agreement, claiming “he had no reason to believe he was not the father” prior to hearing rumors to the contrary. Id. at 513, 571 S.E.2d at 239. In affirming the trial court's denial of his motion, we explained:
        A motion based on Rule 60(b)(1) for "mistake" or Rule 60(b)(3) for "fraud" must be made within a "reasonable time, and . . . not more than one year after the judgment, order, or proceeding was entered or taken." 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 reliefunder 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).

State ex rel. Davis, 153 N.C. App. at 515, 571 S.E.2d at 240-41 (citations omitted).
    We find the instant case indistinguishable from Davis. Defendant's allegations amount to a claim either of a mistake of fact under Rule 60(b)(1), or of fraud, misrepresentation or misconduct by the opposing party under Rule 60(b)(3). Although a motion for relief under Rule 60(b) is the proper vehicle by which to challenge a prior adjudication of paternity, State of N.C. ex rel. Bright v. Flaskrud, 148 N.C. App. 710, 712, 559 S.E.2d 286, 288 (2002), defendant's motion was subject to the one-year limitation period expressly prescribed within the Rule for such claims. Because it was filed more than five years after entry of the adjudication of paternity on 23 March 1998, defendant's motion is untimely as a matter of law. While the trial court enjoys discretion in granting or denying relief under Rule 60(b), it may not avoid the applicable one-year limitation period by treating a claim that falls squarely within Rule 60(b)(1)-(3) as governed instead by the catch-all provisions of Rule 60(b)(6). Accordingly, we reverse the court's order.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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