Durham County v. Riggsbee

289 S.E.2d 579 (1982)

DURHAM COUNTY and Ellen Marie Capparella v. Harold Steve RIGGSBEE.

No. 8114DC704.

Court of Appeals of North Carolina.

April 6, 1982.

Asst. County Attys. Thomas Russell Odom and S. C. Kitchen, Durham, for plaintiffs-appellants.

Clayton & Myrick by Ronald G. Coulter, Durham, for defendant-appellee.

VAUGHN, Judge.

On 13 October 1976, defendant was ordered to pay plaintiff Capparella, defendant's former wife, $40.00 each week for the support of a minor child which the court found to have been born to the marriage. The issue of paternity was raised and fully litigated in that proceeding. Defendant did not appeal and complied with the order through January 1978.

Plaintiff Capparella began receiving public assistance in the form of AFDC through the Durham County Department of Social Services and that resulted in the assignment of her right to obtain child support under the provisions of G.S. 110-137. In February 1981, plaintiff County filed a motion in the cause seeking wage garnishment pursuant to G.S. 110-136 to enforce the child support order.

Defendant then filed a "Motion for Discovery and Stay of Proceedings." The motion was filed under General Statute Rule 35(a). He alleged that he had learned of "a different and reportedly more reliable method for testing a child's paternity...."

On 23 April 1981, Judge Galloway entered an order requiring the mother, father and their child to submit themselves to a tissue typing test, and ordered that the garnishment proceeding be stayed pending the results of the tests.

The judge's lack of authority to attempt to relitigate an issue that had been finally determined more than four years earlier is *580 so obvious that no discussion of the question need be made.

The order is void, and the same is hereby vacated.

Vacated.

MORRIS, C. J., and HEDRICK, J., concur.