Guilford Cnty. By & Through Its Child Support Enforcement Unit ex rel. Mabe v. Mabe

• Decision Date: 05 October 2021
• Docket Number: No. COA20-347,COA20-347
• Citation: 279 N.C.App. 561,866 S.E.2d 305
• Parties: GUILFORD COUNTY BY AND THROUGH its CHILD SUPPORT ENFORCEMENT UNIT, ex rel., Haleigh Mabe, Plaintiff, v. Justin MABE, Defendant.
• Court: North Carolina Court of Appeals

279 N.C.App. 561

866 S.E.2d 305

GUILFORD COUNTY BY AND THROUGH its CHILD SUPPORT ENFORCEMENT UNIT, ex rel., Haleigh Mabe, Plaintiff,

v.Justin MABE, Defendant.

No. COA20-347

Court of Appeals of North Carolina.

Filed October 5, 2021

Deputy County Attorney Taniya D. Reaves, for plaintiff-appellant.

Melrose Law, PLLC, by Adam R. Melrose, for defendant-appellee.

STROUD, Chief Judge.

¶ 1 Plaintiff appeals a continuance order. Because defendant did not file a proper motion pursuant to North Carolina General Statute § 49-14 to challenge the prior adjudication of paternity, we reverse and remand.

I. Background

¶ 2 On or about 3 July 2014, Guilford County Child Support Enforcement Agency, ("CSEA") on behalf of Ms. Haleigh Mabe ("Mother") filed a IV-D complaint against defendant Mr. Justin Mabe for child support. The complaint alleged Ms. Mabe was the "caretaker" of the minor child, and Mr. Mabe was the father of the minor child. A copy of the child's birth certificate was attached to the complaint, and it lists Mother as the child's mother; the blank for "father" states: "HUSBAND INFORMATION REFUSED[.]" (Emphasis added.) Defendant was served with the summons and complaint on 7 July 2015, but he failed to answer or file any responsive pleading.

¶ 3 On 24 November 2015, the trial court entered a default judgment against defendant establishing child support. The order includes both a finding of fact and a conclusion of law that defendant was the father of the minor child. The child support order also decreed that, "[p]aternity is established between the Defendant and child[.]" Defendant did not appeal from the child support order.

¶ 4 After entry of the child support order, in February of 2016, CSEA filed a "motion for order to show cause" for defendant's failure to pay his child support. (Capitalization altered.) On 25 February 2016, the trial court entered an order for defendant to appear and show cause. From our record at least three show cause orders were entered by the trial court, although none of the orders in our record were served. Several continuance orders were also entered.¹

¶ 5 On 23 September 2019, defendant filed a pro se motion to modify child support, using 2003 AOC form AOC0CV0200, Rev. 3/03.² Defendant identified the "circumstances [that] have changed" as the basis for modification of his child support obligation as "RECALL ORDER FOR ARREST & PATERNITY[.]" Thus, it appears that defendant's "motion for modification" was actually requesting recall of an order for arrest and raising an issue regarding paternity.

¶ 6 On 22 October 2019, the trial court held a hearing based on defendant's motion for recall of the arrest order and "paternity[.]" (Capitalization altered.) At the hearing, defendant argued that his name was not on the birth certificate and he did not "know nothing about the kid and she won't let me speak to him or nothing" as the basis for challenging paternity. By order entered 22 October 2019, the trial court recalled defendant's order for arrest issued on 12 December 2017. On 23 October 2019, the trial court entered a continuance order, continuing hearing of "a Motion to Modify/Order to Show Cause" to 8 January 2020. The trial court found that the continuance was requested "[f]or the Defendant (sic) request for a paternity test be scheduled and monitor compliance for the Order to Show Cause." CSEA appeals.

II. Interlocutory Order

¶ 7 CSEA contends the trial court erred in ordering DNA testing to establish paternity because paternity was already established in 2015.

While CSEA contends the appeal is from "a final judgment[,]" the order on appeal is not a final order but an order to continue the hearing on defendant's "modification" motion and on an order to show cause. Turner v. Norfolk Southern Corp. , 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) ("A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." (citation and quotation marks omitted)). As the order appealed is a continuance order setting a new hearing date for defendant's motion to modify child support and to "monitor compliance for the Order to Show Cause[,]" the order is interlocutory as it "is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." Id. (citation and quotation marks omitted). The very name, continuance order, indicates that the action is being continued until a later time. (Emphasis added.)

There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review.

Id. (citation omitted).

¶ 8 The trial court has not certified the order for immediate appeal under Rule 54, and thus CSEA's only method for review is demonstrating a substantial right. See generally id.

A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. The right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed. Our courts have generally taken a restrictive view of the substantial right exception. The burden is on the appealing party to establish that a substantial right will be affected.

Id. at 142, 526 S.E.2d at 670 (emphasis added) (citation and quotation marks omitted).

¶ 9 In CSEA's original brief, CSEA contended the order was final, in the sense that the order required paternity testing, and CSEA contends there is no legal basis for paternity testing as the court had already established paternity in 2015. According to CSEA, the order "is void ab initio " because it was entered without subject matter jurisdiction on the specific issue of paternity. CSEA's legal nullity argument stems from the contention that there was no cognizable motion pending before the trial court. However, defendant's "motion to modify" was before the trial court for hearing, as was stated in the "NOTICE OF HEARING" placing the issue before the trial court, although we agree that defendant's "motion to modify" was substantively not a motion for modification. CSEA seems to be contending the trial court did not have authority to order paternity testing, but that is a different question than whether it had jurisdiction. Even CSEA admits the "cases cited [in its brief] go towards the paternity issue being res judicata [.]" CSEA contends res judicata "overlaps with the issue of subject matter jurisdiction because subject matter jurisdiction is not captured when the issue has already been litigated placing the matter in the res judicata bin."

¶ 10 The confusion in this argument was perhaps caused by the use of forms intended for different purposes, so the titles and statutory references do not coincide with the substance of the documents. The "motion to modify" was not really a motion for modification of child support based upon a change of circumstances, and the trial court's "CONTINUANCE ORDER" is really an order for paternity testing. But looking to the substance of the "motion to modify" and the "order for continuance," this case does present an issue of res judicata.

¶ 11 Furthermore, we acknowledge an important procedural feature of this particular case on appeal. Defendant appeared pro se and initially did not file a responsive brief. This Court sua sponte offered defendant the opportunity to participate in the North Carolina Appellate Pro Bono Program. Defendant accepted, and an attorney was appointed to represent him on appeal. Thereafter, his attorney filed a brief on his behalf. By order entered 9 February 2021, this Court allowed CSEA to file a reply brief and scheduled this case for oral argument.

¶ 12 Out of an abundance of caution, we invoke North Carolina Rule of Appellate Procedure 2 to consider the substantive arguments in CSEA's reply brief in order "[t]o prevent manifest injustice to a party [and] to expedite decision in the public interest[.]" N.C.R. App. P. 2. Rule 2 allows this Court "except as otherwise expressly provided by these rules [to] suspend or vary the requirements or provisions of any of these rules in a case pending before it[.]" Dismissal of this appeal as interlocutory based upon a technical argument regarding the timing of CSEA's assertion of a substantial right, particularly in a case where the briefing schedule was altered by the sua sponte appointment of pro bono counsel by this Court, would not serve to "expedite decision in the public interest[.]" Id. Instead, dismissal would harm the public interest because of the importance of clarity and finality in establishment of paternity to both parent and child. The General Assembly has recognized the importance of this public interest in finality of paternity adjudications in North Carolina General Statute § 49-14, which allows challenge to a prior adjudication of paternity only under specific, well-defined circumstances. Thus, to the extent review of the order on appeal is not appropriate under Rule 28(h) regarding reply briefs, review would be appropriate "[t]o prevent manifest injustice" to the mother and child in this case and "in the public interest" of this State in the finality of parentage once established. Id. Accordingly, under Rule 2, we consider CSEA's substantial rights argument presented in its reply brief.

¶ 13 An argument of res judicata may involve a substantial right. See Bockweg v. Anderson , 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993) ("[A] motion for summary judgment based on res judicata is directed at preventing the possibility that a successful ...