NORTH CAROLINA COURT OF APPEALS
Filed: 15 October 2002
STATE of NORTH CAROLINA by and through the RICHMOND COUNTY CHILD
SUPPORT AGENCY Ex. Rel TRACY DAVIS,
Appeal by defendant from order entered 2 August 2001 by Judge
Tanya Wallace in District Court, Richmond County.
Heard in the
Court of Appeals 11 September 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Brenda Eaddy, for the State.
Dawkins & Sullivan, by Donald M. Dawkins, for defendantappellant.
Don Adams (defendant) executed an Affirmation Acknowledgment
and Order of Paternity on 10 July 1995, acknowledging he was the
father of Jalen T. Davis, born 12 September 1994 to Tracy Davis.
Defendant also executed a Voluntary Support Agreement and Order,
agreeing to contribute to the support of Jalen T. Davis.
court entered the Voluntary Support Agreement as an order of the
court on 21 July 1995.
Defendant executed an Amended Voluntary
Support Agreement and Order on 5 November 1996, acknowledging he
was the father of a second child born to Tracy Davis, named Donte'
E. Davis, and re-acknowledging he was the father of Jalen T. Davis.
In this Amended Voluntary Support Agreement and Order, defendant
also agreed to contribute to the support of both Jalen T. Davis and
-2Donte' E. Davis.
The trial court entered the Amended Voluntary
Support Agreement and Order as an order of the court.
alleges that he began to hear rumors that he might not be the
father of Jalen T. Davis.
Defendant underwent a "DNA Parentage
Test" on or about 22 July 1999.
The results of this test excluded
defendant as the biological father of Jalen T. Davis.
alleges that before the rumors, he had no reason to believe he was
not the father of Jalen T. Davis.
Defendant filed a motion on 10 August 2000 asking the trial
court to void the Acknowledgment and Order of Paternity he executed
on 10 July 1995 and the Amended Voluntary Support Agreement and
Order entered 5 November 1996.
The motion further asked the trial
court to admit into evidence a DNA Parentage Test Report dated 22
July 1999 and to order the State Registrar of Vital Statistics to
remove defendant's name as the father of Jalen T. Davis.
court denied defendant's motion to strike the existing order of
paternity for Jalen T. Davis on 2 August 2001.
the order of the trial court.
Defendant argues in his sole assignment of error that the
trial court erred in denying defendant's motion because the DNA
test excluded defendant as the biological father of Jalen T. Davis.
Our Court held in Leach v. Alford that although an order of
paternity cannot be collaterally attacked in a proceeding relating
solely to an order of support, it can be directly attacked.
N.C. App. 118, 122-24, 304 S.E.2d 265, 267-69 (1983).
In the case
-3before us, defendant has directly attacked the orders of paternity
concerning Jalen T. Davis through his motion.
The trial court considered defendant's pleading as a motion
pursuant to N.C. Gen. Stat. § 1A-1, Rule 60.
This rule states that
"[t]he procedure for obtaining any relief from a judgment, order,
or proceeding shall be by motion as prescribed in these rules or by
an independent action."
N.C. Gen. Stat. § 1A-1, Rule 60 (2001)
Defendant's motion is a challenge in the same
action, not an independent action; therefore, the trial court
correctly considered defendant's motion in the cause as a motion
pursuant to Rule 60.
Our Court has held that a motion
pursuant to N.C.G.S. § 1A-1, Rule 60 is the appropriate method of
challenging acknowledgments of paternity.
See Leach, 63 N.C. App.
at 124, 304 S.E.2d at 269 (holding that the doctrine of res
judicata "does not establish an absolute bar to relief, pursuant to
(judgment) of paternity"); see also Garrison ex rel. Chavis v.
Barnes, 117 N.C. App. 206, 207-09, 450 S.E.2d 554, 555-56 (1994)
(challenging the paternity determination by way of a motion for
relief from judgment pursuant to N.C.G.S. § 1A-1, Rule 60(b)).
Defendant argues that his motion was not captioned as a motion
pursuant to N.C.G.S. § 1A-1, Rule 60, and that the trial court
improperly considered it as such.
Defendant now contends he was
seeking relief pursuant to N.C. Gen. Stat. § 110-132(a). Defendant
does not cite any case in which paternity was challenged in a
motion made pursuant to N.C.G.S. § 110-132(a).
It should also be
-4noted that defendant did not refer to any statute in his motion
pursuant to which his motion was being made.
As our Court stated
in Carter v. Clowers, "moving papers that are mislabeled in other
ways may be treated as motions under Rule 60(b) when relief would
be proper under that rule."
102 N.C. App. 247, 253, 401 S.E.2d
662, 665 (1991) (citation omitted).
The technical requirements of
a motion pursuant to N.C.G.S. § 1A-1, Rule 60(b) require that the
motion identify the original error and identify the relief sought.
The trial court properly considered defendant's
motion as one pursuant to N.C.G.S. § 1A-1, Rule 60.
The cases defendant cites from courts in other jurisdictions
involve motions pursuant to the analogous rule to N.C.G.S. § 1A-1,
Rule 60, not motions pursuant to the specific paternity statute of
For example, in K.W. v. State ex rel. S.G., a
defendant challenged, by motion, his earlier acknowledgment of
paternity of the plaintiff's child.
581 So.2d 855, 856 (Ala. Civ.
The facts in K.W. v. State ex rel. S.G. tended to show
that the defendant, after acknowledging his paternity in court and
being adjudicated the father of a child born out-of-wedlock to the
plaintiff, was told by the plaintiff that he was not the father of
The defendant, the plaintiff, and the child all
submitted to blood testing, which excluded the defendant as the
father of the child.
The defendant filed motions challenging
the acknowledgment and adjudication of paternity, which the court
then treated as motions under Rule 60(b) of the Alabama Rules of
-5Civil Procedure, not motions pursuant to the paternity statute
involved in the case.
Having determined that the trial court correctly decided
defendant's motion pursuant to N.C.G.S. § 1A-1, Rule 60(b), our
review is limited to determining whether the trial court abused its
Goodwin v. Cashwell, 102 N.C. App. 275, 277, 401
S.E.2d 840, 842 (1991) (citing Greenhill v. Crabtree, 45 N.C. App.
49, 262 S.E.2d 315, aff'd by an equally divided court, 301 N.C.
520, 271 S.E.2d 908 (1980)); Cole v. Cole, 90 N.C. App. 724, 727,
370 S.E.2d 272, 273, disc. review denied, 323 N.C. 475, 373 S.E.2d
862 (1988) (citing Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532
"A judge is subject to reversal for abuse of discretion
only upon a showing by a litigant that the challenged actions are
manifestly unsupported by reason."
Clark v. Clark, 301 N.C. 123,
129, 271 S.E.2d 58, 63 (1980) (citation omitted).
Defendant in this case argues the 10 July 1995 Acknowledgment
and Order of Paternity should be voided on the basis of either
mistake or fraud.
However, N.C.G.S. § 1A-1, Rule 60(b) contains a
A motion based on Rule 60(b)(1) for "mistake" or
Rule 60(b)(3) for "fraud" must be made within a "reasonable time,
and . . . not more than one year after the judgment, order, or
proceeding was entered or taken."
N.C.G.S. § 1A-1, Rule 60(b).
The one-year time limitation in N.C.G.S. § 1A-1, Rule 60(b) is an
explicit requirement which our Court cannot ignore.
See Bruton v.
Sea Captain Properties, 96 N.C. App. 485, 488, 386 S.E.2d 58, 59
(1989); see also Bell v. Martin, 43 N.C. App. 134, 141-43, 258
-6S.E.2d 403, 408 (1979) (finding no authority that would allow the
tolling of the one-year limitation in N.C.G.S. § 1A-1, Rule 60(b)),
rev'd on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980).
Further, defendant's motion cannot be considered as one for relief
under Rule 60(b)(6) to circumvent this one-year limitation since
the facts supporting the motion are facts which, even defendant
points out, more appropriately would support consideration pursuant
to (b)(1) or (b)(3).
Bruton, 96 N.C. App. at 488, 386 S.E.2d at
The most recent order in the present case was entered 5
Defendant filed his motion in the cause on 10
August 2000, more than three years after the order was entered,
clearly making defendant's motion untimely under N.C.G.S. § 1A-1,
The order of the trial court denying defendant's motion
pursuant to Rule 60(b) is affirmed.
Judges WALKER and THOMAS concur.