Appeal by respondents from an order dated 24 October 2006 by
Judge Dennis J. Winner in Macon County Superior Court. Heard in
the Court of Appeals 13 September 2007.
Creighton W. Sossomon for respondent-appellants.
Adams Hendon Carson Crow & Saenger, P.A., by George W.
Saenger, for petitioner-appellee.
William Terry Potts and Vella Mae Potts (collectively
respondents) appeal from the trial court's order dated 24 October
2006 affirming the order of the Clerk of Superior Court holding
Arthur Scott Reynolds (petitioner) was the child and sole heir of
Frank Stephen Potts (Potts). For the reasons stated herein, we
affirm the order of the trial court.
Facts and Procedural History
Petitioner was born out of wedlock to Potts and Marni Rose
Reynolds on 8 April 1989. On 13 April 2004, Potts executed a
Voluntary Support Agreement and Order and, on 15 April 2004, an
Affidavit of Parentage For Child Born Out of Wedlock. On 15 April
2004, the presiding district court judge approved and signed the
voluntary support agreement, thereby according it the same force
and effect as an order of the court. N.C. Gen. Stat. § 110-132(a)
(2005). The voluntary support order was filed the same day, and
contains the date and time stamp of the Macon County Clerk of
Superior Court. A copy of the affidavit of parentage was filed
together with the support order, but it was not separately clocked
in, and therefore does not contain a date and time stamp of the
Clerk of Superior Court for Macon County.
On 2 September 2004, Potts executed a document naming
respondent William Terry Potts as executor of his estate. However,
Potts did not provide for the distribution of his assets in the
testamentary document and, upon Potts' death on 19 January 2005,
distribution of his estate was to be determined by the intestate
laws of the State of North Carolina. Potts is survived by
petitioner (his child), and respondents (his brother and mother).
On 24 March 2006, petitioner's mother filed on his behalf a
complaint seeking the removal of respondent William Potts as the
executor of Potts' estate and the establishment of petitioner as
Potts' sole heir. Respondents filed their response on 26 April
2006 and petitioner filed a Notice of Claim pursuant to N.C. Gen.
Stat. § 29-19 on 17 May 2006. A hearing on this matter was held before the Clerk of Court on
18 May 2006, and the Clerk determined petitioner to be the sole
heir of Potts and entitled to take his net estate. Respondents
appealed to the Superior Court of Macon County. In an order dated
24 October 2006, the Superior Court affirmed the judgment of the
Clerk. Respondents appeal.
The dispositive issue respondents present to this Court on
appeal is whether the trial court erred in concluding that Potts'
voluntary child support agreement is sufficient to establish his
parentage of petitioner entitling petitioner to inherit from Potts
pursuant to N.C. Gen. Stat. § 29-19(b)(2). Respondents argue,
pursuant to N.C. Gen. Stat. § 110-132, that a voluntary support
agreement is self-limiting and cannot qualify as a written
instrument capable of creating inheritance rights through N.C. Gen.
Stat. § 29-19(b)(2). N.C. Gen. Stat. § 110-132 states voluntary
support agreements shall have the same force and effect as an
order of support entered by that court[.] N.C. Gen. Stat. § 110-
132(a) (2005). However, this language does not imply voluntary
support agreements are strictly limited such that they may have no
legal implications other than that of child support, as respondents
assert; it acknowledges that voluntary support agreements, when
properly acknowledged and approved by a trial court, have the same
force and effect as a trial court's order of support.
For the purposes of intestate succession, an illegitimate
child is entitled to take from: Any person who has acknowledged himself during
his own lifetime and the child's lifetime to
be the father of such child in a written
instrument executed or acknowledged before a
certifying officer named in G.S. 52-10(b) and
filed during his own lifetime and the child's
lifetime in the office of the clerk of
superior court of the county where either he
or the child resides.
N.C. Gen. Stat. § 29-19(b)(2) (2005). It is well settled that,
[w]hen construing statutes, this Court first
determines whether the statutory language is
clear and unambiguous. If the statute is clear
and unambiguous, we will apply the plain
meaning of the words, with no need to resort
to judicial construction. However, when the
language of a statute is ambiguous, this Court
will determine the purpose of the statute and
the intent of the legislature in its
Wiggs v. Edgecombe County
, 361 N.C. 318, 322, 643 S.E.2d 904, 907
(2007) (internal citations and quotations omitted).
The language of N.C. Gen. Stat. § 29-19(b) is clear and
unambiguous and, on its face, the statute does not place any
limitations on the type of written instrument which must be filed
with the Clerk of Superior Court. To meet the requirements imposed
by this statute, the father of the child must:
(1) acknowledge himself to be the father of
the child in a written instrument;
(2) execute the instrument or acknowledge
parentage before a certifying officer named in
N.C. Gen. Stat. § 52-10(b); and
(3) file the instrument during the lifetime of
both the father and child in the superior
court of the county in which either reside.
N.C. Gen. Stat. § 29-19(b)(2) (2005); see also In re Estate of
, 123 N.C. App. 264, 472 S.E.2d 786 (1996). In the case at hand, Potts' voluntary support agreement
states, I hereby acknowledge that I am the parent of the
child(ren) named below . . . . Petitioner is the child named in
Potts' voluntary support agreement. Potts' voluntary support
agreement was executed before a notary, which is a certifying
officer named in N.C. Gen. Stat. § 52-10(b) (2005) (Such
certifying officer shall be a notary public . . . .). The
voluntary support agreement was approved and signed by a district
court judge and filed with the Clerk of Superior Court in Macon
County, North Carolina, on 15 April 2004. Potts lived in the town
of Highlands located in Macon County, North Carolina, and died on
19 January 2005. Petitioner is still living.
As found by the trial court, Potts' voluntary support
agreement meets the requirements of N.C. Gen. Stat. § 29-19(b)(2)
and petitioner is entitled, for the purposes of intestate
succession, to take by, through and from decedent Frank Stephen
Potts. Respondents' assignments of error are overruled.
Judges STEELMAN and GEER concur.
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