Jeffries v. Moore

Decision Date05 February 2002
Docket NumberNo. COA00-1292.,COA00-1292.
Citation559 S.E.2d 217,148 NC App. 364
CourtNorth Carolina Court of Appeals
PartiesSharn M. JEFFRIES, Plaintiff-appellant, v. Tatjana Thomas MOORE and Carl Jonathan Moore, Jr., Defendants-appellees.

Loftin & Loftin, P.A. by John D. Loftin, Hillsborough, for plaintiff-appellant.

No brief filed for defendants-appellees Tatjana Thomas Moore and Carl Jonathan Moore, Jr. BRYANT, Judge.

Plaintiff Sharn M. Jeffries commenced this appeal seeking review of the trial court's dismissal of his complaint for custody of minor child MiKayla Li Moore—whom plaintiff claims is his natural child.

Defendants Tatjana Thomas Moore and Carl Jonathan Moore, Jr. were married on 18 November 1995 and remained married throughout the course of this litigation. Defendants separated on or around 20 April 1997, and Tatjana began having sexual relations with plaintiff in May 1997. From August 1997 to August 1998, Tatjana spent an average of four nights per week with plaintiff. During the overnight stays, plaintiff and Tatjana engaged in sexual intercourse without the use of contraceptives.

On 25 January 1999, Tatjana gave birth to minor child MiKayla. The conception date was approximated as 21 April 1998-eight months after Tatjana began staying overnight with plaintiff. It could not be ascertained whether Tatjana was continuously separated from her husband surrounding the time of conception.

On 28 May 1999, plaintiff filed a complaint against Tatjana for custody of MiKayla. In addition, plaintiff filed a motion to compel DNA testing to determine parentage on 7 June 1999. Tatjana filed a motion to dismiss the case pursuant to North Carolina Rules of Civil Procedure 12(b)(6) and 19(a), or in the alternative, change venue to Harnett County. By court order filed 29 July 1999, husband Carl was joined as a necessary party to the action.

The trial court found that Carl claimed to be the natural father of MiKayla. MiKayla was born during the marriage of Tatjana and Carl. In addition, Carl signed MiKayla's birth certificate, thus acknowledging paternity. Based on the decision announced in Johnson v. Johnson, 120 N.C.App. 1, 461 S.E.2d 369 (1995), rev'd by, 343 N.C. 114, 468 S.E.2d 59 (1996) (per curiam), the trial court granted the motion to dismiss. Plaintiff gave notice of appeal on 28 June 2000.

On appeal, plaintiff assigns as error the trial court's dismissal of the case pursuant to Rule 12(b)(6).1 Specifically, plaintiff argues that our State's public policy against illegitimizing children born to a marriage is inapplicable to the facts in this case. This Court finds the dispositive issue to be whether Johnson prohibits an alleged parent from challenging the presumption of legitimacy which attaches when a child is born during a marriage union. Based on the following reasons, we reverse the decision of the trial court and remand with instructions.

"`A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.'" Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C.App. 217, 225, 517 S.E.2d 406, 413 (1999) (citation omitted). In Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968), our Supreme Court stated that when a child is born in wedlock, the law presumes the child to be legitimate, and this presumption can only be rebutted by facts and circumstances that show the presumed father (husband) could not be the natural father.

Examples of facts and circumstances that would show the presumed father could not be the natural father include when the presumed father is impotent or does not have access to the mother. See Wright v. Wright, 281 N.C. 159, 171, 188 S.E.2d 317, 325 (1972) ("Impotency and nonaccess are set out therein as examples of types of evidence that would `show that the husband could not have been the father.'"). But see Wake County v. Green, 53 N.C.App. 26, 30, 279 S.E.2d 901, 904 (1981) (proving literal impossibility of access of husband to the mother at time of conception is not required to rebut presumption of legitimacy; but where the spouses are living apart, the presumption of legitimacy will be rebutted unless there is a fair and reasonable basis in light of experience and reason to find the husband and mother were engaging in sexual relations).

Other examples that would show the presumed father could not be the natural father include evidence that the mother is notoriously living in adultery-supporting a claim of nonaccess between husband and mother, see Ray v. Ray, 219 N.C. 217, 220, 13 S.E.2d 224, 226 (1941); evidence of perceived racial differences between the mother, presumed father and child, see Wright, 281 N.C. at 172, 188 S.E.2d at 325; and evidence based on blood group testing results, see Wright, 281 N.C. at 172, 188 S.E.2d at 325-326.

In the case at bar, the trial court found that the plaintiff and mother regularly engaged in unprotected sexual intercourse surrounding the time of conception. The trial court also found that the minor child was born during the marriage of husband and mother, and husband acknowledged paternity of the minor child. It appears from the record that the issue of inaccessibility between the husband and mother was addressed by the trial court. The trial court, however, could not determine whether the mother and husband were continuously separated surrounding the time of conception.

The trial court did find that from August 1997 to August 1998, the mother was spending an average of four nights per week with plaintiff. The trial court also made the finding that the husband and mother "both have very white skin and appear to be Caucasian." "Plaintiff has dark brown skin with very black, extremely curly hair and appears to be of mixed ancestry, including African American ancestry," the trial court found. In addition, the trial court found, "[t]he minor child, Mikala [sic], appears to be [of] a mixed ancestry, including African-American ancestry. Mikala resembles the Plaintiff and does not resemble Defendant Carl Moore, Jr."

Plaintiff moved for the trial court to order blood group testing as to himself, the mother and minor child pursuant to N.C.G.S. § 8-50.1(b1); and testing of the husband pursuant to Rule 35 of the North Carolina Rules of Civil Procedure. Plaintiff's motion to compel DNA testing was apparently dismissed along with his complaint for custody. The trial court made the finding that plaintiff was the biological father and concluded that it was "in the best interest of the minor child to visit with her biological father, the Plaintiff in this action." However, pursuant to Johnson v. Johnson, 120 N.C.App. 1, 461 S.E.2d 369 (1995), rev'd by, 343 N.C. 114, 468 S.E.2d 59 (1996) (per curiam), the trial court determined that it was under mandate to dismiss plaintiff's complaint.

In Johnson, a husband filed a complaint in July 1992 seeking a divorce from the mother and temporary custody of a minor child born during the marriage. Johnson, 120 N.C.App. at 3, 461 S.E.2d at 370. The mother answered and counterclaimed alleging in part that the husband was not the natural father and requested the trial court to order blood group testing as to herself, the husband, and the minor child pursuant to N.C.G.S. § 8-50.1(b). Id. She subsequently filed a separate action against her boyfriend alleging the boyfriend was the minor child's natural father and moved that the trial court order blood group testing as to herself, the boyfriend, and the minor child. Johnson, 120 N.C.App. at 4, 461 S.E.2d at 370. Shortly thereafter, the boyfriend filed an acknowledgment of paternity alleging he was the natural father of the minor child at issue. Id. The trial court consolidated these actions. Johnson, 120 N.C.App. at 4, 461 S.E.2d at 371. The boyfriend then filed a crossclaim against the husband for a determination of paternity. Johnson, 120 N.C.App. at 5, 461 S.E.2d at 371.

After consolidation, the mother moved the trial court to require the husband to submit to blood group testing to determine parentage. The mother's motion was denied by order entered on 22 October 1992. Johnson, 120 N.C.App. at 4, 461 S.E.2d at 371. Although the boyfriend was named as a party to the consolidated action prior to the hearing on the mother's motion, the boyfriend was neither served by either party nor did he attend the hearing on the mother's motion. Id.

On 19 November 1992, the boyfriend moved for a new trial and relief from the 22 October 1992 order pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure, respectively. Id. The trial court granted the motion for a new trial and relief on 10 November 1993. Id. Thereafter, the boyfriend moved for blood and DNA testing pursuant to N.C.G.S. § 8-50.1(b) and Rule 35 of the North Carolina Rules of Civil Procedure. Johnson, 120 N.C.App. at 6,461 S.E.2d at 372. On 19 January 1994, the trial court entered an order compelling all parties, including the husband, to submit to blood group testing pursuant to N.C.G.S. § 8-50.1(b). Johnson, 120 N.C.App. at 7,461 S.E.2d at 373. The husband appealed. Johnson, 120 N.C.App. at 8,461 S.E.2d at 373.

On appeal, the husband argued inter alia that the boyfriend did not have standing to rebut the marital presumption pursuant to N.C.G.S. § 8-50.1(b). Johnson, 120 N.C.App. at 8, 461 S.E.2d at 373. The majority on appeal disagreed.

N.C.G.S. § 8-50.1(b)2 as construed by the Johnson Court read:

(b) In the trial of any civil action in which the question of parentage arises, the court before whom the matter may be brought, upon motion of the plaintiff, alleged-parent defendant, or other interested party, shall order that the alleged-parent defendant, the known natural parent, and the child submit to any blood tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage.

Johnson, ...

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3 cases
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  • Jeffries v. Moore, 147PA02.
    • United States
    • North Carolina Supreme Court
    • 27 juni 2002
    ...27, 2002. Leigh A. Peek, Hillsborough, for Tatjana and Carl Moore. John D. Loftin, Hillsborough, for Jeffries. Prior report: 148 N.C.App. 364, 559 S.E.2d 217. Upon consideration of the petition filed by Defendants in this matter for a writ of certiorari to review the decision of the North C......

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