Smith v. Burden

228 S.E.2d 662 (1976)

31 N.C. App. 145

Linda F. SMITH v. Ralph Lee BURDEN.

No. 768DC312.

Court of Appeals of North Carolina.

October 6, 1976.

*663 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Parks H. Icenhour, Raleigh, for petitioner.

No appearance for respondent.

BROCK, Chief Judge.

The petitioner argues on appeal that Judge Hardy was in error in finding that there had been no judicial determination of paternity in the 1965 criminal action against respondent brought under G.S. 49-2. Petitioner further argues that the 1965 criminal action conclusively establishes respondent's paternity in the present action. Judge Hardy dismissed the petition on the ground that there had never been a judgment in the prior criminal action. We find it unnecessary to rule on his conclusion because whether his reasoning is correct or not, the result is correct. Petitioner is not entitled to relief in this action.

*664 An action for support of illegitimate children under Chapter 52A of the General Statutes is a civil action. Childers v. Childers, 19 N.C.App. 220, 198 S.E.2d 485 (1973); Cline v. Cline, 6 N.C.App. 523, 170 S.E.2d 645 (1969). In such an action paternity must be judicially determined to warrant relief. G.S. 52A-8.2. Prior criminal conviction of failure to support illegitimate children is not conclusive as to paternity in a subsequent civil action for support of the same children. In the subsequent civil action, the putative father is entitled to have the issue of paternity litigated. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

In the case at bar petitioner presents no evidence whatsoever of respondent's paternity except the warrant, verdict, and prayer for judgment continued from the prior criminal action. Under Tidwell such evidence is incompetent; therefore, petitioner has not met the requirements of Chapter 52A as to proof of paternity and is not entitled to relief.

Affirmed.

PARKER and ARNOLD, JJ., concur.