Barnes v. Wells

• Decision Date: 03 August 2004
• Docket Number: No. COA03-997.,COA03-997.
• Citation: 165 NC App. 575,599 S.E.2d 585
• Court: North Carolina Court of Appeals
• Parties: Henry Woodrow BARNES, Jr., Petitioner, v. James Donald WELLS, Respondent, for the Adoption of Dawn Marie Barnes.

599 S.E.2d 585

165 NC App. 575

Henry Woodrow BARNES, Jr., Petitioner, v. James Donald WELLS, Respondent, for the Adoption of Dawn Marie Barnes.

No. COA03-997.

Court of Appeals of North Carolina.

August 3, 2004.

Jones, Martin, Parris & Tessener Law Offices, P.L.L.C., by Sean A.B. Cole, Raleigh, for petitioner-appellant.

Glenn, Mills & Fisher, P.A., by Carlos E. Mahoney, Durham, for respondent-appellant.

BRYANT, Judge.

Henry Woodrow Barnes, Jr. (petitioner) and James Ronald Wells (respondent) both appeal an order filed 26 March 2003 denying respondent's motion for relief from an order entered 25 October 1979 that allowed petitioner to adopt respondent's natural daughter. Respondent and Donna Jarrett (Jarrett) were married in Blair, Virginia on 26 March 1970. On 11 October 1970, Dawn Marie was born to the marriage. Following Dawn Marie's birth, the family moved to Fort Bragg, North Carolina while respondent was engaged in military service. Sometime in 1971, the family moved back to Virginia.

In either late 1974 or early 1975, respondent and Jarrett separated. Following their separation, Jarrett moved back to North Carolina and began living with petitioner.

On 13 October 1975, Jarrett obtained a divorce from respondent in Mecklenburg County, North Carolina. Custody of Dawn Marie was placed with Jarrett. Respondent did not appear at the divorce proceeding. On 24 January 1976, Jarrett married petitioner in York, South Carolina, and the family moved to Chapel Hill, North Carolina.

Sometime in late 1977, respondent came to North Carolina, picked-up Dawn Marie, and returned with the child to Danville, Virginia. On 7 December 1977, respondent filed a petition for custody of Dawn Marie in Danville, Virginia. On 8 December 1977, Jarrett contested the petition by filing a similar petition for custody in Danville, Virginia. A custody hearing was held on 8 December 1977, and respondent was awarded temporary custody. A permanent custody hearing was scheduled for 31 January 1978. Shortly after the 8 December 1977 hearing, respondent returned Dawn Marie to the physical custody of Jarrett and petitioner in North Carolina. On 16 December 1977, respondent dismissed his petition for custody.

On 26 September 1978, petitioner filed a petition for the adoption of Dawn Marie in Chatham County, North Carolina. Jarrett signed a consent for adoption, and also filed a petition alleging respondent's abandonment of Dawn Marie. During this time, respondent was living with his grandmother in Danville, Virginia.

The clerk of superior court of Chatham County attempted to serve notice on respondent, via certified mail with return receipt requested, advising that a court date had been set to determine whether abandonment had occurred. Petitioner also attempted to serve notice of the adoption proceeding on respondent via certified mail with return receipt requested. The certified mail was not successfully delivered; thereafter, petitioner provided service by publication in the Danville newspaper. Notice was published for four days in April 1979. On 14 May 1979, Jarrett and petitioner's attorney filed an affidavit attesting that respondent's "whereabouts, dwelling house is unknown and there has been diligent but unsuccessful attempt to serve the party under paragraph c of Rule 4(j)(9)."

On 14 May 1979, a hearing was held before the clerk of superior court, at which Jarrett, petitioner, and their attorney were present. Respondent was not present and did not have an attorney present on his behalf. On the same date, the clerk issued an order of abandonment decreeing that respondent had abandoned Dawn Marie and that a guardian ad litem should be appointed to represent her interests.

On 25 October 1979, the trial court entered an order allowing petitioner to adopt Dawn Marie. Respondent neither was a party to the adoption proceeding nor did he enter an appearance before the court.

On 28 May 2002, Dawn Marie died in an automobile accident. Following her death, respondent claims he discovered she had been adopted by petitioner in North Carolina. On 19 September 2002, respondent filed a motion for relief from the final order of adoption pursuant to N.C. Gen.Stat. § 1A-1, Rule 60(b)(4) and (b)(6). Respondent's motion alleged that the final order for adoption was void because petitioner failed to properly serve respondent with notice of the proceedings, and the clerk of superior court lacked personal jurisdiction over respondent. On 28 October 2002, upon motion of respondent, these matters were transferred to the superior court division for hearing.

These matters came for hearing on 2 December 2002. On 26 March 2003, the trial court issued an order denying respondent's Rule 60(b)(4) and (b)(6) motion. Both petitioner and respondent assigned as error portions of the 26 March 2003 order.

The issues on appeal are whether the trial court erred in (I) concluding respondent did not waive his personal jurisdiction objection; and (II) denying respondent's Rule 60(b)(4) and (b)(6) motion for relief.

I

Petitioner's Appeal

The trial court entered as conclusion of law 12:

Petitioner asserts that this matter is controlled by In re Blalock, 233 N.C. 493, 64 S.E.2d 848 (1951), and argues that Respondent submitted to the [c]ourt's jurisdiction by moving the [c]ourt to open the adoption file, and by filing a Motion to Transfer from the Clerk to Superior Court. Accordingly, Petitioner moves the court to conclude that by these specific actions Respondent should be deemed to have waived all defects to personal jurisdiction. The court rejects Petitioner's argument that Blalock is controlling, and the motion is DENIED.

Petitioner argues the trial court erred in failing to conclude that respondent submitted to the trial court's jurisdiction by moving the trial court to open the adoption file and transfer the matter from the clerk of superior court. We disagree.

In In re Blalock, 233 N.C. 493, 64 S.E.2d 848 (1951), our Supreme Court examined whether a party waived his objection to improper service of process by filing a motion to dismiss based on personal and subject matter jurisdiction. The Blalock Court determined that by seeking dismissal based on lack of subject matter jurisdiction, the respondent made a general appearance, thereby waiving all objections to personal jurisdiction. Blalock, 233 N.C. at 504, 64 S.E.2d at 856. We agree with the trial court's conclusion that Blalock is inapplicable to the instant case. The actions deemed to be a general appearance in Blalock occurred prior to the entry of a final judgment. Here, respondent did nothing that could be considered a general appearance prior to the entry of the order now challenged.

Petitioner cites several cases in support of his argument that respondent waived his objections to personal jurisdiction. However, we find these cases are also inapplicable because respondent never made a general appearance before entry of the final order. Bullard v. Bader, 117 N.C.App. 299, 301-02, 450 S.E.2d 757, 759 (1994) (defendant made a general appearance before entry of judgment by submitting financial documents for consideration at his child support hearing); Bumgardner v. Bumgardner, 113 N.C.App. 314, 319, 438 S.E.2d 471, 474 (1994) (defendant made a general appearance before entry of judgment by appearing in court with counsel and participating in the hearing for absolute divorce); Humphrey v. Sinnott, 84 N.C.App. 263, 265-66, 352 S.E.2d 443, 445 (1987) (defendant made a general appearance by moving for change of venue before asserting lack of jurisdiction defenses); Williams v. Williams, 46 N.C.App. 787, 788-89, 266 S.E.2d 25, 27-28 (1980) (defendant made a general appearance before entry of judgment by his legal counsel's participation in an in-chambers conference with judge and opposing attorney on custody issue); Swenson v. Thibaut, 39 N.C.App. 77, 89-92, 250 S.E.2d 279, 287-89 (1978) (defendants made a general appearance by moving to disqualify plaintiff's counsel before filing lack of jurisdiction defenses). If the trial court lacked personal jurisdiction over respondent when it entered the order, actions subsequent to that order could not retroactively supply jurisdiction. Based on applicable case law, the trial court did not err in concluding that respondent did not waive his objection to personal jurisdiction. Accordingly, petitioner's assignment of error is overruled.

II Respondent's Appeal

Respondent argues that the trial court erred in denying his Rule 60(b)(4) & (b)(6) motion for relief from the adoption judgment. We disagree.

Pursuant to N.C. Gen.Stat. § 1A-1, Rule 60(b),

On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons:

....

(4) The judgment is void;

....

(6) Any other reason justifying relief from the operation of the judgment.

N.C.G.S. § 1A-1, Rule 60(b)(4), (b)(6) (2003). The standard of review for a trial court's ruling on a Rule 60(b) motion is abuse of discretion. Coppley v. Coppley, 128 N.C.App. 658, 663, 496 S.E.2d 611, 616 (1998). Abuse of discretion exists when "the challenged actions are manifestly unsupported by reason." Blankenship v. Town and Country Ford, Inc., 155 N.C.App. 161, 165, 574 S.E.2d 132, 134 (2002). The trial court's findings regarding a Rule 60(b) motion are conclusive on appeal if supported by competent evidence. Blankenship, 155 N.C.App. at 165, 574 S.E.2d at 134-35.

In the instant case, an order was entered on 14 May 1979 adjudicating respondent had abandoned Dawn. The abandonment order was entered several months before the adoption order. The dispositive issue, therefore, is whether the abandonment proceeding of 14 May 1979 was proper. Since the adoption occurred in 1979, we analyze this case under the adoption statutes of Chapter 48 in effect at that time.

N.C. Gen.Stat. § 48-5 provides:

(a) The court shall be authorized to determine whether the parent or

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