Sotelo v. Drew

473 S.E.2d 379, 123 N.C. App. 464, 1996 N.C. App. LEXIS 700
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 1996
DocketCOA95-482
StatusPublished
Cited by2 cases

This text of 473 S.E.2d 379 (Sotelo v. Drew) 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
Sotelo v. Drew, 473 S.E.2d 379, 123 N.C. App. 464, 1996 N.C. App. LEXIS 700 (N.C. Ct. App. 1996).

Opinions

McGEE, Judge.

Plaintiff, Theresa L. Sotelo, filed a petition for registration and enforcement of a child support order entered on 19 September 1983 [465]*465in the State of Maryland under provisions of the Uniform Reciprocal Enforcement of Support Act (URESA), N.C. Gen. Stat. §§ 52A-29 and 30 (subsequently repealed effective Jan. 1, 1996) and for arrearages accrued under the order. Plaintiff was represented by Assistant District Attorney Claude S. Ferguson as required under N.C. Gen. Stat. § 52A-10.1 (1992). The Maryland order was registered in Wayne County, North Carolina on 20 July 1993. Defendant was served a copy of the Notice of Registration. He retained counsel and filed a Response to Petition on 9 August 1993. Defendant argued he was current in his child support payments under a 1982 N.C. child support order requiring him to pay $100 per month; that the plaintiff and the State of Maryland had accepted the $100 per month payments and should be estopped from claiming arrearages under the Maryland order. He also pled the defenses of estoppel, laches, and the statute of limitations, as well as general principles of equity, in bar to any claim for arrearages.

A hearing was held by District Court Judge Kenneth R. Ellis. He entered an Order Confirming Registration on 27 August 1993 which confirmed registration of the Maryland order directing defendant to make payments of $40.00 per week for child support. Judge Ellis’ order also dismissed plaintiffs claim for any arrearage which had accrued under the Maryland order. No appeal was taken from this order.

Almost a year later, the Attorney General, purportedly on behalf of plaintiff, filed a motion to set aside Judge Ellis’ order dismissing plaintiff’s claim' for child support arrearages pursuant to Rule 60(b)(1), (4) and (6) of the Rules of Civil Procedure. A hearing was held by District Court Judge E. Burt Aycock, Jr. in late August 1994. At the hearing, defendant objected to the entry of the Attorney General into the proceeding. An associate attorney general explained to the court that she represented the Child Support Enforcement Section of the Department of Human Resources (DHR), which is responsible for administering the child support enforcement program. She admitted her office did nothing to formally intervene in the case. The court then made the following inquiry:

Court: Mr. Delbridge I take it then that the Attorney General’s here in this case with the consent or request of the District Attorney’s office.
Mr. Delbridge: No. Actually Mr. Ferguson is the representative of the District Attorney’s Office and involved initially in this other case. I am just here.
[466]*466Court: Is that fair to say then?
Mr. Ferguson: I believe so Your Honor although I was actually I was [sic] subpoenaed in the capacity of a witness taking [sic] the Attorney General does appear to request the assistance of the District Attorney’s office.
Court: And you are assuming that is the case here?
Mr. Ferguson: Yes sir.
Court: Well I consider that out of the way then as far as their representation here.

By order dated 2 November 1994, Judge Aycock denied the Rule 60(b) motion to set aside Judge Ellis’ order. From this order, the Attorney General appeals.

N.C. Gen. Stat. § 52A-10.1 in dealing with URESA petitions states:

It shall be the duty of the official who prosecutes criminal actions for the State in the court acquiring jurisdiction to appear on behalf of the obligee in proceedings under this Chapter. In the event of an appeal from a support order entered under this Chapter, the Attorney General shall represent the obligee.

When an out-of-state obligee (the party claiming to be owed support payments) files a URESA complaint in North Carolina, the case must be docketed in the appropriate county and the district attorney’s office must be notified, as it is “the district attomey[] who appears ‘on behalf of the obligee.’ ” Reynolds v. Motley, 96 N.C. App. 299, 302, 385 S.E.2d 548, 550 (1989) (quoting N.C. Gen. Stat. §§ 52A-10.1, -12). The Attorney General’s office becomes involved in representing the obligee only “[i]n the event of an appeal from a support order entered under this Chapter.” G.S. 52A-10.1 (emphasis added).

Under Article III, § 18 of the North Carolina Constitution, the General Assembly was authorized to create the Department of Justice, supervised by the Attorney General, and to enact laws defining the authority of the Attorney General. N.A.A.C.P. v. Eure, Secretary of State, 245 N.C. 331, 336, 95 S.E.2d 893, 897 (1957). Pursuant to this authority, the General Assembly enacted N.C. Gen. Stat. § 114-2 which prescribes the duties of the Attorney General. N.A.A.C.P., 245 N.C. at 336, 95 S.E.2d at 897. Subsection 4 of this statute provides that it is the duty of the Attorney General “[t]o consult with and advise the prosecutors, when requested by them, in all [467]*467matters pertaining to the duties of their office.” G.S. 114-2(4) (emphasis added). This duty to consult and advise prosecutors upon their request allows the Attorney General “to advise the prosecutors, not to completely replace them, or act instead of them, unless there is an express statutory provision authorizing the Attorney General to initiate a particular action.” State v. Felts, 79 N.C. App. 205, 212, 339 S.E.2d 99, 103, disc. review denied, 316 N.C. 555, 344 S.E.2d 11 (1986).

There is nothing in the record indicating the Wayne County District Attorney ever requested the Attorney General’s assistance in this case. Indeed, testimony at the Rule 60(b) motion hearing reveals that it was the Attorney General who called for the assistance of the district attorney. When the court asked whether the district attorney’s office had requested the Attorney General’s assistance, the assistant district attorney assigned to this case responded, “the Attorney General does appear to request the assistance of the District Attorney’s office.” The Attorney General has not shown any statutory authority which permits him to supplant the district attorney in representing plaintiff in these matters.

Rule 60(b) states that in some circumstances “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment . . . .” N.C.R. Civ. P. 60(b) (emphasis added). In Browne v. Dept. of Social Services, 22 N.C. App. 476, 206 S.E.2d 792 (1974) petitioner, the foster mother of two minor children, brought a habeas corpus proceeding to determine the proper custody of the children and she asked the court to treat the proceeding as a motion for review of an earlier case involving the minor children. After speculating the earlier case which petitioner sought to have reviewed was an action to terminate parental rights, this Court stated only “a party or his legal representative may seek relief from a final judgment.

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Related

State v. Summers
513 S.E.2d 575 (Court of Appeals of North Carolina, 1999)
Sotelo v. Drew
473 S.E.2d 379 (Court of Appeals of North Carolina, 1996)

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Bluebook (online)
473 S.E.2d 379, 123 N.C. App. 464, 1996 N.C. App. LEXIS 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sotelo-v-drew-ncctapp-1996.