In re A.B.D.

617 S.E.2d 707, 173 N.C. App. 77, 2005 N.C. App. LEXIS 1925
Court of Appeals of North Carolina·Decided September 6, 2005·No. No. COA04-941.·Published·Cited by 35 cases

Opinion

WYNN, Judge.

Civil Procedure Rule 4 required, at the time this action was instituted, that service of process be effectuated within thirty days of the issuance of a summons. N.C. Gen.Stat. § 1-1A, Rule 4 (1999). Where service does not occur within the required period and an endorsement, extension, or alias/pluries summons is not acquired within ninety days of the summons' issuance, the action is discontinued, the trial court lacks jurisdiction, and any judgment rendered is void. Cole v. Cole, 37 N.C.App. 737, 738, 247 S.E.2d 16, 17 (1978). In the case sub judice, Respondent contends that service of process was not timely, no extension was obtained, and the order terminating his parental rights as to A.B.D. is thus void. For the reasons stated herein, we agree and reverse the order of the trial court.

I. Facts

The record reflects that on 23 July 1999, Petitioner (natural mother of A.B.D.) filed a petition to terminate Respondent's parental rights as to A.B.D. and caused a summons to be issued. Process was served on Respondent personally on 2 September 1999 and by mail on 9 September 1999. The record indicates that no extension, endorsement, alias summons, or pluries summons was obtained as to the 23 July 1999 summons.

On 16 November 1999, Respondent's parental rights were terminated. The termination order stated that Respondent did not make an appearance, either personally or through counsel, in the termination proceeding. Respondent did not appeal the termination order.

After his parental rights had been terminated, Respondent brought an action for custody and support of the minor child. On 13 October 2000, Petitioner and Respondent entered into a Consent Order For Custody And Child Support "effectuating their agreements[.]" In the consent order, the parties agreed that "it is in the best interest of the minor child that she remain in the custody of [Petitioner] but that [Respondent] have regular visitation and play an active role in the child's life." Moreover, under the consent order, Respondent was obligated to pay $1055.72 per month in child support for A.B.D. During the hearing on Respondent's Rule 60(b) motion, the parties stipulated that "they have, in essence, complied for the most part with that order."

On 13 November 2002, Respondent brought an action to legitimate A.B.D. The Assistant Clerk of Court entered a legitimation order on 5 February 2003. On 4 December 2003, however, Petitioner moved to have the legitimation order set aside because Respondent's parental rights had previously been terminated. On 18 December 2003, the Assistant Clerk of Court set aside the legitimation order, stating that the legitimation order "was improvidently granted because of the lack of information regarding the termination of parental rights, and the order would not have been issued or granted had the undersigned known of the termination."1

*710On 8 December 2003, Respondent moved to set aside the termination order pursuant to North Carolina Civil Procedure Rule 60(b), contending, inter alia, that service of process was invalid, as Defendant was served forty-one days after the issuance of the summons, i.e., not within the thirty-day requirement for service in effect in 1999, when the termination action was filed and the termination order entered. On 16 February 2004, the trial court denied Respondent's Rule 60(b) motion, finding that, while service of process occurred forty-one days after the summons had been issued, the action did not discontinue, the summons was not invalid, and Respondent was ultimately properly served. Respondent appealed.

On appeal, Respondent contends, inter alia, that the trial court erred and abused its discretion in refusing to set aside a 1999 termination of parental rights order under Civil Procedure Rule 60(b)(4) because process was served after forty-one days had passed, the court lacked jurisdiction, and the order is thus void.

II. Standard of Review

A trial court's ruling on a Civil Procedure Rule 60(b) motion is reviewable only for an abuse of discretion. Harris v. Harris, 162 N.C.App. 511, 513, 591 S.E.2d 560, 561 (2004). An "[a]buse of discretion is shown only when `the challenged actions are manifestly unsupported by reason.'" Blankenship v. Town & Country Ford, Inc., 155 N.C.App. 161, 165, 574 S.E.2d 132, 134 (2002), disc. review denied, 357 N.C. 61, 579 S.E.2d 384 (2003) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).

III. Timeliness of the Order on Appeal

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In re A.B.D., 617 S.E.2d 707, 173 N.C. App. 77, 2005 N.C. App. LEXIS 1925 (N.C. Ct. App. 2005).

617 S.E.2d 707 (In re A.B.D.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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