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IN THE MATTER OF
THE CHANGE OF NAME:                    Johnston County
FROM: K.O.S.                        No. 01 SP 0442
TO: M.O.B.

    Appeal by petitioner from judgment entered 23 August 2002 by Judge Knox V. Jenkins, Jr., in Johnston Superior Court. Heard in the Court of Appeals 12 January 2005.

    Staci D. Barbour, pro se.

    Spence & Spence, P.A., by Robert A. Spence, Jr., for appellee Tony Smith.

    LEVINSON, Judge.

    The present appeal arises from appellant Staci D. Barbour's challenge to a superior court order granting appellee Tony Ray Smith's motion to set aside the change of name for the minor child born to Barbour and alleged by Smith to be his daughter. We affirm.
    On 6 November 1999, Barbour gave birth to K.O.S. in Omaha, Nebraska. At the time K.O.S. was born, Barbour was married to Bilal Kanawati; however, a birth certificate issued 14 January 2002 by the State of Nebraska lists Smith as the child's father. According to the birth certificate, Barbour provided this information.
    On 23 February 2001, Smith filed an action in Wake County, North Carolina seeking both temporary and permanent custody of thechild. On the same day, Smith initiated a legitimation action in the Wake County Superior Court. On 8 August 2001, the Wake County District Court entered an order granting visitation rights to Smith and an order requiring DNA testing to determine whether Smith was the child's biological father. The DNA test indicated that the probability of Smith being K.O.S.'s biological father is 99.999%.
    On an appeal by Barbour, this Court held that the filing of a legitimation action in the superior court divested the district court of subject matter jurisdiction to adjudicate the issue of paternity and that it was, therefore, error for the district court to order a paternity test. Smith v. Barbour, 154 N.C. App. 402, 408, 571 S.E.2d 872, 877 (2002), cert denied, __ N.C. __, 599 S.E.2d 408 (2004).
    On 6 June 2002, the Wake County Superior Court entered an order in Smith's legitimation action in which it granted summary judgment in Smith's favor and declared Smith to be the legitimate father of K.O.S. In an unpublished opinion, this Court affirmed the superior court's order of legitimation. Smith v. Barbour, COA02-1396 (filed Dec. 7, 2004).
    While the legitimation action was pending, Barbour filed a petition in Wake County to change the name of the minor child from K.O.S. to M.O.B. A clerk in the in the Special Proceedings Division of the Wake County Superior Court informed Barbour that she could not petition to have the name of the minor child changed while the legitimation action was pending in Wake County Superior Court. Undeterred, Barbour then filed a petition with the JohnstonCounty Clerk of Court to change the name of the minor child. At the time of the filing of the petition in Johnston County, the legitimation proceeding was still pending in Wake County.
    On 12 September 2001, an assistant clerk in the office of the Johnston County Clerk of Court entered an order changing the name of the minor child from K.O.S. to M.O.B. Subsequently, Smith filed a motion for relief from the name change under N.C.G.S. § 1A-1, Rule 60(b) with the Johnston County Clerk of Court. Barbour filed motions to strike and dismiss Smith's motion on the ground that Smith was not a party to the name change proceeding and had no statutory right to file a Rule 60 motion. The Johnston County Clerk of Court reserved its ruling on Barbour's and Smith's motions “pending the outcome of the [legitimation] litigation in Wake County Superior Court.” Barbour and Smith both appealed the clerk's decision to the Johnston County Superior Court.
    Following a hearing, the superior court entered an order dated 23 August 2002, in which it made the following findings of fact:

    1.    The mother, Staci Barbour and the father, Tony Ray Smith, are made parties to this proceeding, since such enumeration of the parties is normally not set forth in this type [of] summary special proceeding.

    2.    Pursuant to G.S. 101-2 et sequitor on September 12, 2001 the mother, Staci Barbour, of the child K.O.S. filed a petition before the Clerk of the Superior Court of Johnston County     to change the name of the child to M.O.B. The father, Tony Ray Smith, received no notice of the application or the change of name entered summarily and ex parte by the Clerk. The mother did not provide the name of the father though she was at the time in custody litigation in Wake County.
    3.    The Court acknowledges that the mother now contests that Tony Ray Smith is the father of the child. However, she agreed to place his name . . . on the birth certificate, namely the surname, “Smith”. There are additional facts evidencing his right to notice as a parent. First, according to certified records from the paternity proceeding in Wake County . . . Tony Ray Smith has a 99.99% probability of being the father of the child. Second, the mother acknowledged Mr. Smith as the father in a domestic violence action of record in this county before she filed the petition for name change. (01 CVD 00024). Third, though she has apparently appealed the order, the Honorable Abraham P. Jones entered summary judgment adjudging Tony Ray Smith to be the legitimate father of the child in question and declaring that Bilal Kanawati, the mother's husband at the time of conception, is not the father in the Wake County paternity action. Fourth, Kanawati has filed an answer in the paternity action denying custody and denied paternity in a sworn deposition; the attorney for Mr. Smith presented a sworn copy of the deposition at the hearing, which the court releases. Fifth, after the application for a name change the father presented the paternity test and an acknowledgment of paternity to the Department of Health and Human Services in Nebraska and obtained a birth certificate showing him to be the father. Sixth, the father has obtained an order giving him joint custody of the child, though appealed, in file 01 CVD 2256 of the Clerk of Court of Wake County.

    4.    The Court of Appeals, in a recent case, In the Matter of the Change of Name of Crawford, 134 N.C. App. 137, 517 S.E.2d 161, (NC, 1999) [sic], has held that the mother could not unilaterally change the name of an infant illegitimate son without the consent of the father. In that case the natural father was legally recognized as the father due to an affidavit of paternity, his name on a birth certificate, and a paternity test. The Court finds the acknowledgments of paternity set forth in the preceding paragraph to be sufficient under Crawford to require notice to the father, which in this case the mother did not do.
The trial court ordered that the Clerk's order changing the name of the child be stricken and that the child's name be returned to K.O.S. From this order, Barbour now appeals.

________________________

    On appeal, Barbour argues that the trial court erred by setting aside the Clerk's name change order under Rule 60 because Smith was not a party to the name change proceeding and his pre- existing rights were not affected by the name change, such that he was not entitled to relief under N.C.G.S. § 1A-1, Rule 60 (2003). These arguments lack merit.
    As an initial matter, we observe that “[t]he Rules of Civil Procedure . . . are applicable to special proceedings, except as otherwise provided [by statute].” N.C.G.S. § 1-393 (2003). The instant case involves application of the Rules of Civil Procedure governing relief from judgment and joinder.
    Rule 60(b) of the North Carolina Rules of Civil Procedure provides that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding. . . .” N.C.G.S. § 1A-1, Rule 60(b) (2003). This Court has held that relief under Rule 60 is not available to a non-party. Watson v. Ben Griffin Realty & Auction, 128 N.C. App. 61, 64, 493 S.E.2d 331, 333 (1997).
    Rule 21 of the North Carolina Rules of Civil Procedure provides that “on such terms as are just parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action.” N.C.G.S. § 1A-1, Rule 21(2003). A “necessary party” must be joined in an action. N.C.G.S. § 1A-1, Rule 19(a) (2003). “Necessary parties are those who have or claim material interests in the subject matter of a controversy, and those interests will be directly affected by an adjudication of the controversy.” Rice v. Randolph, 96 N.C. App. 112, 113, 384 S.E.2d 295, 297 (1989) (citing Wall v. Sneed, 13 N.C. App. 719, 187 S.E.2d 454 (1972)). “When there is an absence of necessary parties, the trial court should correct the defect ex mero motu upon failure of a competent person to make a proper motion.” Id. (citing White v. Pate, 308 N.C. 759, 764, 304 S.E.2d 199, 203 (1983)). A “proper party” may be joined in an action. Crosrol Carding Developments, Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 451, 183 S.E.2d 834, 837 (1971). “A proper party is one whose interest may be affected by a decree, but whose presence is not essential in order for the court to adjudicate the rights of others.” Id. at 452, 183 S.E.2d at 837 (citing Simon v. Board of Education, 258 N.C. 381, 389, 128 S.E.2d 785, 791 (1963)). “Whether proper parties will be ordered joined rests within the sound discretion of the trial court.” Id. at 451, 183 S.E.2d at 837 (citing Strickland v. Hughes, 273 N.C. 481, 485, 160 S.E.2d 313, 316 (1968)).
    N.C.G.S. § 101-2 (2003) establishes the procedure for changing a person's name, and sets forth the following requirements for changing the name of a minor child:
        An application to change the name of a minor child may be filed by the child's parent or parents, guardian, or guardian ad litem, and this application may be joined in theapplication for a change of name filed by the parent or parents. Nothing in this section shall be construed to permit one parent to make an application on behalf of a minor child without the consent of the other parent if both parents are living . . . .

This Court has held that “G.S. [§] 101-2 contemplates only the situation where one natural or adoptive parent petitions for the change of name of a child, and the other parent stands to lose his name with respect to that child.” In re Dunston, 18 N.C. App. 647, 649, 197 S.E.2d 560, 562 (1973). In dicta, this Court has also opined that “[w]here the natural mother petitions to change the name of her illegitimate child, the consent of no other person is logically required, as no other person has any 'rights' inherent in that child's name.” Id.; see In re Change of Name of Crawford to Crawford Trull, 134 N.C. App. 137, 141, 517 S.E.2d 161, 163 (1999) (characterizing the previous quotation as dicta). However, this Court has also affirmed a decision to require the “legally recognized father” of a minor child born out of wedlock to consent to the changing of the child's name. Crawford, 134 N.C. App. at 141-42, 517 S.E.2d at 163-64. Specifically, we held that “[r]espondent, as [the minor's] legally recognized natural father, in both an Affidavit of Paternity and the birth certificate, clearly fits within an ordinary definition of 'father' and 'natural parent' [under G.S. § 101-2].” Id.
    In the instant case, at the time of Barbour's petition to change the name of the minor child, a legitimation action was pending in Wake County Superior Court. On 6 June 2002, the superior court declared Smith to be the legitimate father of theminor child, and this Court has affirmed that decision. At the latest, upon being declared the legitimate father of the child, Smith acquired the right to contest the changing of the child's name under G.S. § 101-2. His rights under the statute conferred standing upon Smith and made him, at the very least, a proper party. Assuming arguendo that Smith was a proper party rather than a necessary party at the time of the Rule 60 hearing on 19 August 2002, the trial court had the discretion to make Smith a party to the litigation. We discern no abuse of discretion either in the trial court's decision to make Smith a party, or in its decision to rule on his motion under Rule 60.
    The corresponding assignments of error are overruled.
    Barbour also argues on appeal that the trial court “exceeded its jurisdiction in vacating the minor's name change . . . to effect a name change pursuant to N.C.G.S. § 49-13, when the statute's name change provision has been ruled unconstitutional.” Having carefully reviewed the order on appeal, we easily conclude that the trial court did not require compliance with the provision of N.C.G.S. § 49-13 (2003) which has been declared unconstitutional. This assignment of error is overruled.
    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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