An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1305


Filed: 5 July 2005


         v.                        Robeson County
                                No. 98 CVD 1569

    Appeal by defendant from order filed 20 May 2004 by Judge Herbert L. Richardson in Robeson County District Court. Heard in the Court of Appeals 6 June 2005.

    Locklear, Jacobs, Hunt & Brooks, by Crystal L. Graham, for plaintiff-appellee.

    Bowen, Berry and Powers, PLLC, by Tiffany Peguise-Powers, for defendant-appellant.

    BRYANT, Judge.

     Christopher McGeachy (defendant) appeals an order filed 20 May 2004, entered consistent with denial of a motion to set aside judgment deeming him to be the father of Christopher McGeachy, Jr.
    On 20 August 1998, an order was entered deeming defendant to be the father of Christopher McGeachy, Jr., born on 10 June 1996. The order required defendant to pay $154.00 per month for child support. On 27 April 2004, defendant filed a motion pursuant to Rule 60(b)(6) to set aside the order and to allow DNA testing to determine the paternity of the minor child. Defendant claimed he had “noticed that as the minor child has aged, he is beginning toresemble someone other than the Defendant.” On 20 May 2004, the motion was denied. On 21 May 2004, defendant filed written notice of appeal.

     Defendant's sole argument on appeal is that the trial court erred in denying his motion because the child had grown and developed such that he no longer resembled him . We disagree.
    To set aside a judgment or order pursuant to Rule 60(b)(6), a defendant must demonstrate: “(1) extraordinary circumstances exist, (2) justice demands the setting aside of the judgment, and (3) the defendant has a meritorious defense.” Gibby v. Lindsey, 149 N.C. App. 470, 474, 560 S.E.2d 589, 592 (2002)(citation omitted ). The trial court concluded defendant's allegation that the child no longer resembled him was insufficient grounds to set aside the order of paternity.
     “The decision whether to grant relief under Rule 60(b) 'is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion.'” Sloan v. Sloan, 151 N.C. App. 399, 404, 566 S.E.2d 97, 101 (2002)(citation omitted). Here, we conclude that defendant has failed to show that the trial court's order denying the motion was “manifestly unsupported by reason.” State ex rel. Davis v. Adams, 153 N.C. App. 512, 515, 571 S.E.2d 238, 240 (2002) . The mere fact that defendant believes the child does not resemble him, without further evidence, is insufficient to demonstrate that the trial court abused its discretion in denying the motion. Accordingly, we affirm.
     No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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