In re the Legitimation of Locklear

311 S.E.2d 691, 66 N.C. App. 722, 1984 N.C. App. LEXIS 2951

• Court: Court of Appeals of North Carolina
• Decided: February 21, 1984
• Docket: No. 8316SC274
• Status: Published

Opinion

HEDRICK, Judge.

Petitioner’s one assignment of error raises only the question whether the Clerk of Superior Court has jurisdiction pursuant to N.C. Gen. Stat. Sec. 49-10 to enter an order legitimating a child born to a married woman.

N.C. Gen. Stat. Sec. 49-10 in pertinent part provides:

Legitimation. — The putative father of any child bom out of wedlock, whether such father resides in North Carolina or not, may apply by a verified written petition, filed in a special proceeding in the superior court of the county in which the putative father resides . . . praying that such child be declared legitimate. The mother, if living, and the child shall be necessary parties to the proceeding. ... If it appears to the court that the petitioner is the father of the child, the court may thereupon declare and pronounce the child legitimated. . . .

(Emphasis added.)

It is clear that the Clerk of Superior Court is without authority pursuant to N.C. Gen. Stat. Sec. 49-10 to enter an order legitimating an already-legitimate child.

We are cited by petitioner to Wright v. Gann, 27 N.C. App. 45, 217 S.E. 2d 761, r ert. denied, 288 N.C. 513, 219 S.E. 2d 348 (1975), wherein this Court construed the phrase “out of wedlock” as used in N.C. Gen. Stat. Sec. 49-14. Suffice it to say that neither case nor statute has application in the present case.

Affirmed.

Judges Hill and Eagles concur.