Garrison Ex Rel. Chavis v. Barnes

450 S.E.2d 554, 117 N.C. App. 206, 1994 N.C. App. LEXIS 1213
CourtCourt of Appeals of North Carolina
DecidedDecember 6, 1994
Docket943DC276
StatusPublished
Cited by11 cases

This text of 450 S.E.2d 554 (Garrison Ex Rel. Chavis v. Barnes) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrison Ex Rel. Chavis v. Barnes, 450 S.E.2d 554, 117 N.C. App. 206, 1994 N.C. App. LEXIS 1213 (N.C. Ct. App. 1994).

Opinions

GREENE, Judge.

Linzer Ray Barnes (defendant) appeals from orders entered 30 April 1993 and 26 January 1994 by Judge E. Burt Aycock, Jr. (Judge Aycock) in Pitt County District Court, denying defendant relief from a default judgment entered 1 July 1991 which declared defendant the natural and legal father of Aaron Edward Chavis (Aaron) and ordered defendant to pay Belinda Ann Chavis (Ms. Chavis) child support.

On 9 August 1990, Ms. Chavis gave birth to Aaron out of wedlock. On 22 April 1991, Edward L. Garrison (plaintiff), the director of Pitt County Department of Social Services (DSS), filed a complaint on behalf of Ms. Chavis, requesting an adjudication that defendant is the biological and legal father of Aaron, an order obligating defendant to pay child support, and an order requiring defendant to indemnify the State of North Carolina for past public assistance paid to Aaron. Plaintiff also requested that defendant provide continuing medical support for Aaron, pay the costs of the action, and add Aaron as a beneficiary under any health insurance plan.

On 28 May 1991, plaintiff filed an application for default because defendant, having been personally served with process on 24 April 1991, failed to answer plaintiffs complaint within the time allowed by law for filing an answer. The Pitt County Clerk of Court entered default on 28 May 1991. On 1 July 1991, Judge George L. Wainwright (Judge Wainwright) entered a default judgment against defendant containing the following finding of fact:

12. The defendant came into Court this day and requested the opportunity to have blood testing completed. However, the defendant has requested blood testing on three (3) occasions but has failed to appear for such blood testing and has failed to pay any part of the blood testing. The defendant missed opportunities to have blood testing completed on February 22, 1991, March 29, 1991, and May 31, 1991. The defendant has, therefore, waived his right to have blood testing completed in this case.

Judge Wainwright then concluded that defendant is the biological father of Aaron and ordered defendant to pay plaintiff child support, [208]*208past public assistance paid, to add Aaron as a beneficiary to any health insurance plan, taxed all costs against defendant, and ordered that defendant’s state and federal income tax refunds are subject to garnishment as long as any arrearage remains due.

On 23 February 1993, defendant filed a verified motion for relief from judgment pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, requesting the court to grant defendant relief from the default judgment by suspending the judgment and setting it aside pending a blood test to determine paternity and to order defendant, Ms. Chavis, and Aaron to undergo a blood grouping test. The motion alleged he is not the father of Aaron and that:

2. . . . defendant had a constitutional right to counsel which he would have exercised if the right had been made known to him. ...
3. At the time the default judgment was entered on 30 July 1991, the Defendant was incarcerated .... At no time while he was incarcerated up to the date judgment was entered was the defendant notified of the Court hearing.
6. It is manifestly unjust and inequitable to require defendant to support a child when he is not the actual biological father of the child.
10. . . . Extraordinary circumstances exist and justice demands that defendant be granted relief from the judgment pending blood testing.

On 1 April 1993, defendant filed a motion for blood test pursuant to N.C. Gen. Stat. § 8-50.1(b) “for the purpose of excluding the defendant’s paternity in support of defendant’s motion for relief from judgment entered by default in this matter.”

An order by Judge Aycock was filed on 11 October 1993, nunc pro tunc for 30 April 1993. In his order, Judge Aycock found as a fact that defendant asserted “he was entitled to relief from the [default] judgment on the grounds that he had made a request of the Court in. the civil proceeding for blood testing and that, upon such request, the Court was mandated by statute to order the blood testing. The defendant indicated that the July 1991 order violated his statutory rights under N.C.G.S. 8-50.1(b) and his constitutional rights to due process and equal protection of law.” Judge Aycock concluded [209]*209“defendant is not entitled to an order for a blood test or for relief from the judgment of paternity and child support” and therefore denied his motions and ordered defendant to “continue to pay child support in accordance with the previous orders of this Court.”

On 6 May 1993, defendant filed a motion for new trial, to amend judgment, and for relief from judgment under Rules 59(a)(1), 59(a)(8), 59(e), 60(b)(4), and 60(b)(6) and requested the court for “a new hearing and trial on the issue of his paternity and compelling a blood test, to amend or alter the judgment entered on 30 April 1993 so as to vacate the 1 July 1991 judgment and allow him relief therefrom and a blood test, and to grant him relief from the judgment entered on 1 July 1991 and 30 April 1993 by suspending the judgment and setting it aside pending a blood test to determine paternity.” In his motion, defendant alleged the following:

2. . . . Notwithstanding the mandatory provisions of NCGS 8-50.1, the Court erroneously denied the defendant’s request and motion on the purported basis that he had waived his right to such a test by failing to have the test conducted on occasions prior to the filing of the action and prior to the making of his motion before the Court in this civil proceeding.
5. The defendant was deprived of statutory and constitutional guarantees in violation of the provisions of the North Carolina Constitution (Article I, sections 18, 19) and United States Constitution (14th Amendment, 5th Amendment) which guarantee equal protection of the laws, due process of law, fundamental fairness, and open courts for the fair administration of justice.
6. The failure of the Court to grant defendant relief from the judgment of paternity and support based upon the denial of his statutory and constitutional rights constitutes prejudicial legal errors. The irregularities occurring on 1 July 1991 and 30 April 1993 prevented defendant from having a fair trial and hearing, render the judgments void or voidable, and justify relief from the operation of the judgment.

By order entered 26 January 1994, Judge Aycock, “[hjaving reviewed the record and the defendant’s motion,” denied defendant’s motions for new trial, to amend the judgment entered 30 April 1993, and for relief from the judgments and orders entered on 1 July 1991 and 30 April 1993.

[210]*210The issues presented are whether (I) there is any evidence in the record to support the granting of defendant’s Rule 60(b)(6) motion for relief from judgment; and (II) Judge Aycock erred in denying defendant’s motion for blood testing under Section 8-50.1(b).

I

Defendant argues in his Rule 60(b)(6) motion that “statutory and constitutional mandates were not properly considered or followed by the court, and the public and legal policies of this State in determining paternity were not applied” because Judge Wainwright failed to enter an order on 1 July 1991 for blood testing under N.C. Gen. Stat.

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Garrison Ex Rel. Chavis v. Barnes
450 S.E.2d 554 (Court of Appeals of North Carolina, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
450 S.E.2d 554, 117 N.C. App. 206, 1994 N.C. App. LEXIS 1213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrison-ex-rel-chavis-v-barnes-ncctapp-1994.