Wake County ex rel. Horton v. Ryles

437 S.E.2d 404, 112 N.C. App. 754, 1993 N.C. App. LEXIS 1238
CourtCourt of Appeals of North Carolina
DecidedDecember 7, 1993
DocketNo. 9210DC1012
StatusPublished

This text of 437 S.E.2d 404 (Wake County ex rel. Horton v. Ryles) 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
Wake County ex rel. Horton v. Ryles, 437 S.E.2d 404, 112 N.C. App. 754, 1993 N.C. App. LEXIS 1238 (N.C. Ct. App. 1993).

Opinion

ORR, Judge.

On appeal, defendant brings forward the following three assignments of error: (1) that the trial court erred in hearing plaintiff’s claim for child support based on the argument that defendant’s pending appeal of the trial court’s denial of his motion to dismiss divested the trial court of jurisdiction in this action, (2) that the trial court erred in denying his motion to dismiss on the ground that the trial court lacked subject matter and personal jurisdiction over him because no complaint or summons had been issued, and (3) that the trial court erred in denying his motion to dismiss on the ground that the trial court’s order to show cause failed to state a claim upon which relief could be granted. For the reasons stated below, we affirm the order of the trial court.

I.

First, defendant contends that the trial court erred in proceeding to hear plaintiff’s claim on the merits because the previous order denying defendant’s motion to dismiss was on appeal. We disagree.

On 4 May 1992, defendant filed a motion to dismiss this action for child support pursuant to N.C. R. Civ. P. 12(b). On 28 May 1992, Judge Morelock signed an order denying defendant’s motion to dismiss, giving defendant twenty days to further plead or respond to the order to show cause entered by Judge Overby and stating that the trial court retained jurisdiction for further orders in this action. After a hearing on the merits of this case and while defendant’s appeal from the denial of his motion to dismiss was pending in this Court, Judge Russell Sherrill, III entered an order ordering defendant to pay $340 a month for the support of Nicholas Horton.

Defendant argues that the trial court erred in proceeding to the merits of this case because his appeal from the denial of his [758]*758motion to dismiss was pending in this Court. Defendant bases his argument on the general rule that an appeal removes the case from the jurisdiction of the trial court. See State ex. rel. Utilities Commission v. Edmisten, 291 N.C. 361, 230 S.E.2d 671 (1976); See also Berger v. Berger, 67 N.C. App. 591, 313 S.E.2d 825, disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984). “The general rule, however, is subject to the exception . . . that an appeal from an interlocutory order not affecting a substantial right is a nullity and does not divest the trial court of jurisdiction.” Berger, 67 N.C. App. at 597, 313 S.E.2d at 829.

On 5 October 1993, this Court filed an unpublished opinion in Wake County ex rel. Horton v. Ryles, (No. 9210DC837), 435 S.E.2d 582, concluding that defendant’s appeal from the denial of his motion to dismiss did not affect a substantial right and dismissing his appeal as interlocutory. Thus the exception to the general rule that an appeal from an interlocutory order not affecting a substantial right is a nullity and does not divest the trial court of jurisdiction applies in the present case, and the trial court correctly proceeded in this action to render a judgment on the merits. See Berger, 67 N.C. App. at 597, 313 S.E.2d at 829.

II.

Next, defendant contends that the trial court erred by denying his motion to dismiss because no complaint or summons was issued in this action as required by Rules 3 and 4 of the North Carolina Rules of Civil Procedure, and he was not, therefore, given the notice required to obtain jurisdiction. We disagree.

This action was conducted pursuant to the provisions of N.C. Gen. Stat. § 110-132. While this statute does not require the issuance of a summons and complaint to give the court the authority to enter an order for child support in a case where a judgment of paternity has been entered against a putative father based on his acknowledgment of paternity, the process by which a putative father is notified of the court’s authority to enter child support against him under these circumstances is equivalent to the notice received from the issuance of a summons and complaint. r

N.C. Gen. Stat. § 110-132(a) prescribes the procedure for entering judgment of paternity based upon the acknowledgment of paternity by the putative father. N.C. Gen. Stat. § 110432(a) (1991) states:

[759]*759(a) In lieu of or in conclusion of any legal proceeding instituted to establish paternity, the written acknowledgment of paternity executed by the putative father of the dependent child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the dependent child and filed with and approved by a judge of the district court in the county where the mother of the child resides or is found, or in the county where the putative father resides or is found, or in the county where the child resides or is found shall have the same force and effect as a judgment of that court ....

Thus, “[t]his statute, in effect, makes a father’s voluntary written acknowledgment of paternity ... a binding and fully enforceable substitute for a judicial determination of paternity . . . .” Durham County Dep’t of Social Services v. Williams, 52 N.C. App. 112, 116, 277 S.E.2d 865, 868 (1981).

Further, once the acknowledgment of paternity becomes a binding and fully enforceable judicial determination of paternity, N.C. Gen. Stat. § 110-132(b) sets out the procedure by which the court may enter a support order on this acknowledgment. N.C. Gen. Stat. § 110-132(b) (1991) states:

(b) At any time after the filing with the district court of an acknowledgment of paternity, upon the application of any interested party, the court or any judge thereof shall cause a summons signed by him or by the clerk or assistant clerk of superior court, to be issued, requiring the putative father to appear in court at a time and place named therein, to show cause, if any he has, why the court should not enter an order for the support of the child by periodic payments, which order may include provision for reimbursement for medical expenses incident to the pregnancy and the birth of the child, accrued maintenance and reasonable expense of the action under this subsection on the acknowledgment of paternity previously filed with said court. The amount of child support payments so ordered shall be determined as provided in G.S. 50-13.4(c). The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court.

Thus, three requirements must be met to enter an order for child support “on the acknowledgment of paternity”: (1) the putative father’s acknowledgment of paternity must be filed, (2) an interested [760]*760party must make an application for an order to show cause, and (3) the court or any judge thereof must cause a summons signed by him or by the clerk or assistant clerk of superior court to be issued requiring the putative father to appear in court at a time and place named in the order to show cause why the court should not enter an order for support of the child. Thus, the putative father has the right to a hearing before the court enters a child support order on his acknowledgment of paternity, and the court must give him notice of this hearing.

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Related

State Ex Rel. Utilities Commission v. Edmisten
230 S.E.2d 671 (Supreme Court of North Carolina, 1976)
National Food Stores v. North Carolina Board of Alcoholic Control
151 S.E.2d 582 (Supreme Court of North Carolina, 1966)
Durham County Department of Social Services v. Williams
277 S.E.2d 865 (Court of Appeals of North Carolina, 1981)
Berger v. Berger
313 S.E.2d 825 (Court of Appeals of North Carolina, 1984)

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Bluebook (online)
437 S.E.2d 404, 112 N.C. App. 754, 1993 N.C. App. LEXIS 1238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wake-county-ex-rel-horton-v-ryles-ncctapp-1993.