In re A.B.D.
| Decision Date | 06 September 2005 |
| Docket Number | No. COA04-941.,COA04-941. |
| Citation | 617 S.E.2d 707 |
| Court | North Carolina Supreme Court |
| Parties | In re A.B.D., a minor child. |
Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, Raleigh, for respondent-appellant.
Sally H. Scherer, Raleigh, for petitioner-appellee.
Civil Procedure Rule 4 required, at the time this action was instituted, that service of process be effectuated within thirty days of the issuance of a summons. N.C. Gen.Stat. § 1-1A, Rule 4 (1999). Where service does not occur within the required period and an endorsement, extension, or alias/pluries summons is not acquired within ninety days of the summons' issuance, the action is discontinued, the trial court lacks jurisdiction, and any judgment rendered is void. Cole v. Cole, 37 N.C.App. 737, 738, 247 S.E.2d 16, 17 (1978). In the case sub judice, Respondent contends that service of process was not timely, no extension was obtained, and the order terminating his parental rights as to A.B.D. is thus void. For the reasons stated herein, we agree and reverse the order of the trial court.
The record reflects that on 23 July 1999, Petitioner (natural mother of A.B.D.) filed a petition to terminate Respondent's parental rights as to A.B.D. and caused a summons to be issued. Process was served on Respondent personally on 2 September 1999 and by mail on 9 September 1999. The record indicates that no extension, endorsement, alias summons, or pluries summons was obtained as to the 23 July 1999 summons.
On 16 November 1999, Respondent's parental rights were terminated. The termination order stated that Respondent did not make an appearance, either personally or through counsel, in the termination proceeding. Respondent did not appeal the termination order.
After his parental rights had been terminated, Respondent brought an action for custody and support of the minor child. On 13 October 2000, Petitioner and Respondent entered into a Consent Order For Custody And Child Support "effectuating their agreements[.]" In the consent order, the parties agreed that "it is in the best interest of the minor child that she remain in the custody of [Petitioner] but that [Respondent] have regular visitation and play an active role in the child's life." Moreover, under the consent order, Respondent was obligated to pay $1055.72 per month in child support for A.B.D. During the hearing on Respondent's Rule 60(b) motion, the parties stipulated that "they have, in essence, complied for the most part with that order."
On 13 November 2002, Respondent brought an action to legitimate A.B.D. The Assistant Clerk of Court entered a legitimation order on 5 February 2003. On 4 December 2003, however, Petitioner moved to have the legitimation order set aside because Respondent's parental rights had previously been terminated. On 18 December 2003, the Assistant Clerk of Court set aside the legitimation order, stating that the legitimation order "was improvidently granted because of the lack of information regarding the termination of parental rights, and the order would not have been issued or granted had the undersigned known of the termination."1
On 8 December 2003, Respondent moved to set aside the termination order pursuant to North Carolina Civil Procedure Rule 60(b), contending, inter alia, that service of process was invalid, as Defendant was served forty-one days after the issuance of the summons, i.e., not within the thirty-day requirement for service in effect in 1999, when the termination action was filed and the termination order entered. On 16 February 2004, the trial court denied Respondent's Rule 60(b) motion, finding that, while service of process occurred forty-one days after the summons had been issued, the action did not discontinue, the summons was not invalid, and Respondent was ultimately properly served. Respondent appealed.
On appeal, Respondent contends, inter alia, that the trial court erred and abused its discretion in refusing to set aside a 1999 termination of parental rights order under Civil Procedure Rule 60(b)(4) because process was served after forty-one days had passed, the court lacked jurisdiction, and the order is thus void.
A trial court's ruling on a Civil Procedure Rule 60(b) motion is reviewable only for an abuse of discretion. Harris v. Harris, 162 N.C.App. 511, 513, 591 S.E.2d 560, 561 (2004). An "[a]buse of discretion is shown only when `the challenged actions are manifestly unsupported by reason.'" Blankenship v. Town & Country Ford, Inc., 155 N.C.App. 161, 165, 574 S.E.2d 132, 134 (2002), disc. review denied, 357 N.C. 61, 579 S.E.2d 384 (2003) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
Generally, a motion made pursuant to Civil Procedure Rule 60(b) "shall be made within a reasonable time, and for reasons (1),(2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken." N.C. Gen.Stat. § 1A-1, Rule 60(b) (2004); see also, e.g., Jenkins v. Richmond County, 118 N.C.App. 166, 169, 454 S.E.2d 290, 292 (1995) (). However, a motion made pursuant to Rule 60(b)(4), to set aside a void judgment, may be made at any time. See, e.g., Van Engen v. Que Scientific, Inc., 151 N.C.App. 683, 689, 567 S.E.2d 179, 184 (2002) ( ; Burton v. Blanton, 107 N.C.App. 615, 616-17, 421 S.E.2d 381, 383 (1992) ( .
As this Court has made clear,
The Rules of Civil Procedure apply to proceedings for termination of parental rights:
The conclusion that G.S. 1A-1, Rule 17(c)(2), Rules of Civil Procedure, applies [to termination of parental rights proceedings] is inescapable. All remedies in the courts of this State divide into (1) actions or (2) special proceedings. [N.C.]G.S. § 1-1. A proceeding to terminate parental rights is ... either a civil action or a special proceeding, ... [and thus] the Rules apply, G.S. 1-393, except where a different procedure may be prescribed by statute.
In re Clark, 303 N.C. 592, 598, n. 3, 281 S.E.2d 47, 52 n. 3 (1981); see also In re Hodge, 153 N.C.App. 102, 105, 568 S.E.2d 878, 880 (2002) () (quoting Matter of Bullabough, 89 N.C.App. 171, 179, 365 S.E.2d 642, 646 (1988)); In re Brown, 141 N.C.App. 550, 551, 539 S.E.2d 366, 368 (2000), cert. denied, 353 N.C. 374, 547 S.E.2d 809 (2001) () (citing In re Bullabough, 89 N.C.App. at 179, 365 S.E.2d at 646).
In re McKinney, 158 N.C.App. 441, 444-45, 581 S.E.2d 793, 795-96 (2003). Nothing in the Juvenile Code prescribes a different service of process procedure under the circumstances of this case;2 Civil Procedure Rule 4's service of process requirements therefore apply.
North Carolina Civil Procedure Rule 4, which governs process and service of process, is intended to provide notice of the commencement of an action and "`to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit.'" Harris v. Maready, 311 N.C. 536, 541-42, 319 S.E.2d 912, 916 (1984) (quoting Wiles v. Welparnel Constr. Co., 295 N.C. 81, 84, 243 S.E.2d 756, 758 (1978)). In 1999, the time when the termination action commenced, Rule 4 stated:
(c) Summons — Return. — Personal service or substituted personal service of summons as prescribed by Rule 4(j)(1) a and b must be made within 30 days3 after the date of the issuance of summons.... If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served....
(d) Summons — Extension; endorsement, alias and pluries. — When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:
(1) The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or
(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.
* * *
(e) Summons — Discontinuance. — When there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed.
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