County of Durham DSS Ex Rel. Stevons v. Charles

STEELMAN, Judge.

On 23 September 1997, Winfred T. Charles (“defendant”) executed a “Father’s Acknowledgment of Paternity” with respect to a minor child, Tenisha Charles, born 10 May 1988. On 3 October 1997, the Honorable C. D. Johnson entered an order of paternity establishing that defendant was the father of Tenisha Charles. On 23 September 1997, defendant executed a voluntary support agreement and order, agreeing to make monthly child support payments for the minor child. Judge Johnson entered this as an order of the court on 3 October 1997.

*506On 4 March 2005, defendant filed a motion pursuant to N.C. R. Civ. P. 60(b)(6) and N.C. Gen. Stat. § 110-132, seeking to set aside his acknowledgment of paternity and seeking a paternity test. This motion was allegedly triggered by statements of the child’s mother, made during the week of 21 February 2005, that defendant was not the father of the minor child.

This motion came on for hearing before the trial court on 27 June 2005. The trial court’s order denied defendant’s motion pursuant to Rule 60(b)(6), but granted defendant relief under N.C. Gen. Stat. § 110-132. The order further directed that defendant, the minor child and the mother submit to a paternity test. Plaintiff moved for a temporary stay, for a writ of certiorari and for a writ of supersedeas. On 17 October 2005, this Court granted a temporary stay of the trial court’s order. On 3 November 2005, this Court allowed plaintiff’s petitions for writs of certiorari and supersedeas.

Plaintiff contends that the trial court erred in granting relief to defendant pursuant to N.C. Gen. Stat. § 110-132 and ordering paternity testing. We agree.

N.C. Gen. Stat. § 110-132 provides that a putative father may rescind an acknowledgment of paternity within sixty days of its execution. The statute further provides: “After 60 days have elapsed, execution of the document may be challenged in court only upon the basis of fraud, duress, mistake, or excusable neglect.” Id. The trial court found that this statute afforded defendant a basis for revoking his acknowledgment of paternity, separate and apart from the provisions of N.C. R. Civ. P. 60. We hold this conclusion of law to have been in error.

N.C. Gen. Stat. § 110-132 was originally enacted by the General Assembly in 1975 and was designated as N.C. Gen. Stat. § 110A-5. See 1975 N.C. Sess. Laws ch. 827, § 1. Subsection (a) as originally enacted contained no provision for the rescission of an affidavit of parentage. Subsection (b) provided that “[t]he prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court.” Id; see also N.C. Gen. Stat. § 110-132(b) (2005).

In the decision of Leach v. Alford, 63 N.C. App. 118, 304 S.E.2d 265 (1983), this Court held that the above-referenced language contained in subsection (b) did not preclude a putative father from seeking to set aside his affidavit of paternity under the provisions of N.C. R. Civ. P. 60(b)(6).

*507In 1997, the General Assembly added provisions to N.C. Gen. Stat. § 110-132(a) which provided for procedures to rescind the affidavit of paternity. For purposes of this case, the only relevant portion of the statute is the one dealing with an attempted rescission occurring more than sixty days from the execution of the affidavit of paternity.

This Court has held on several occasions that the proper manner in which to attack a determination of paternity based upon an affidavit of paternity is under N.C. R. Civ. P. 60(b). See Leach v. Alford, 63 N.C. App. 118, 304 S.E.2d 265 (1983); State ex rel. Davis v. Adams, 153 N.C. App. 512, 571 S.E.2d 238 (2002); State of N.C. ex rel. Bright v. Flaskrud, 148 N.C. App. 710, 559 S.E.2d 286 (2002).

Each of the grounds for seeking rescission of the affidavit of paternity under N.C. Gen. Stat. § 110-132(a) are grounds for relief from a judgment enumerated in Rule 60(b)(1), (2) or (3). Rule 60 states that, “for reasons (1), (2) and (3)” the motion shall be made “not more than one year after the judgment, order, or proceeding was entered or taken.” We hold that the 1997 amendments to N.C. Gen. Stat. § 110-132 were not intended by the General Assembly to create an unlimited right in the putative father to seek rescission of an affidavit of paternity, but rather to incorporate into the statute the grounds for setting aside a judgment set forth in Rule 60.

Thus, the one-year time period for seeking relief under Rule 60(b)(1), (2) and (3) applies to challenges under N.C. Gen. Stat. § 110-132(a). Since appellee’s motion was filed over seven years after the filing of his acknowledgment of paternity, his claims were barred and should have been dismissed by the trial court.

We note that the provisions of Rule 60(b)(6) do not contain a one-year time limit for seeking relief but must be filed “within a reasonable time.” The trial court dismissed appellee’s claim under Rule 60(b)(6), and appellee failed to preserve this issue for review by this Court.

We reverse the ruling granting defendant’s motion pursuant to N.C. Gen. Stat. § 110-132, and remand this matter to the trial court for entry of an order consistent with this opinion.

REVERSED AND REMANDED.

Judge HUNTER concurs. *508Judge WYNN dissents in separate opinion.