Johnson v. Johnson

• Decision Date: 05 September 1995
• Docket Number: No. 9411DC552,9411DC552
• Citation: 461 S.E.2d 369,120 N.C.App. 1
• Parties: Sammy Roger JOHNSON, Jr., Plaintiff, v. Lisa McGhee JOHNSON (Meehan), Defendant. Lisa McGhee JOHNSON (Meehan), Plaintiff, v. Thomas C. MEEHAN, Defendant.
• Court: North Carolina Court of Appeals

Page 369

461 S.E.2d 369

120 N.C.App. 1

Sammy Roger JOHNSON, Jr., Plaintiff, v. Lisa McGhee JOHNSON (Meehan), Defendant.

Lisa McGhee JOHNSON (Meehan), Plaintiff, v. Thomas C. MEEHAN, Defendant.

No. 9411DC552.

Court of Appeals of North Carolina.

Sept. 5, 1995.

[120 N.C.App. 3] Appeal by plaintiff Sammy Roger Johnson, Jr., from order entered 19 January 1994 by Judge Franklin F. Lanier in Johnston County District Court. Heard in the Court of Appeals 21 February 1995.

Plaintiff Sammy Roger Johnson (hereinafter Mr. Johnson) appeals from an order granting defendant Thomas C. Meehan's motion to compel Mr. Johnson to submit to blood-grouping and DNA testing pursuant to G.S. 8-50.1. Mr. Johnson and defendant Lisa McGhee Johnson (hereinafter Mrs. Meehan) were married on 22 October 1988. On 1 December 1991, Mrs. Meehan gave birth to a baby girl, Samantha Renee Johnson. Samantha's birth certificate listed Mr. Johnson and Mrs. Meehan as parents.

The parties were separated on 8 August 1992. On 6 July 1992, Mr. Johnson filed a complaint seeking divorce from bed and board and temporary custody of the minor child. Mrs. Meehan answered and counterclaimed for child custody, support and paternity determination. Mrs. Meehan alleged that Mr. Johnson was not the natural father of the minor child and requested the trial court to order Mr. Johnson, Mrs. Meehan and the minor child to submit to blood testing pursuant to G.S. 8-50.1(b) for the purpose of establishing or disproving parentage.

On 27 August 1992, Mrs. Meehan filed a separate action against Thomas C. Meehan alleging that defendant Meehan was the father of her minor child and moved for an order that defendant Meehan, the minor child and Mrs. Meehan submit to blood group testing pursuant to G.S. 8-50.1(b). On 31 August 1992, Mr. Meehan filed an Acknowledgment of Paternity, alleging that he was the natural, biological father of Samantha Renee Johnson. On 9 October 1992, Mrs. Meehan moved the court to require Mr On 7 October 1992, the trial court consolidated Mr. Johnson's original action and Mrs. Meehan's action for blood testing. On 22 October 1992, the trial court entered an order denying Mrs. Meehan's motion to order Mr. Johnson to submit to blood-grouping testing pursuant to G.S. 8-50.1(b). Although Mr. Meehan was a party to the action prior to the hearing on Mrs. Meehan's motion, Mr. Meehan was not served by either party and did not attend the hearing or present evidence. On 19 November 1992, pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure, Mr. Meehan moved for a new trial and relief from the 22 October 1992 Order. On 10 November 1993, the trial court granted Mr. Meehan's motion for a new trial and relief from the 22 October 1992 Order.

Johnson to submit to blood-grouping testing pursuant to G.S. 8-50.1.

On 19 January 1994, the trial court entered the following order compelling all parties, including Mr. Johnson, to submit to blood-grouping and DNA testing pursuant to G.S. 8-50.1:

FINDINGS OF FACT

....

5. In addition to the issues of custody and support of Samantha Johnson, this action involves the issue of paternity in that Thomas C. Meehan and Lisa McGhee Johnson (Meehan) contend that Thomas C. Meehan is the biological father of the child. Sammy Roger Johnson contends that he is the biological father of the child. The paternity issue is pending for later determination.

6. Sammy Roger Johnson, Jr. filed an action for, among other things, child custody, against Mrs. Meehan on July 6, 1992. Thereafter, on August 3, 1992, Mrs. Meehan filed an Answer and Counterclaim against Mr. Johnson. In her Counterclaim, Mrs. Meehan asserted a claim for custody and a claim requesting the court to determine the paternity of Samantha Renee Johnson. On August 17, 1992, Mrs. Meehan filed a separate action in file number 92 CVD 1631, for a determination of the paternity of Samantha Renee Johnson. The two cases (92 CVD 1258 and 92 CVD 1631) were consolidated by Order of this court on October 7, 1992, making Mr. Meehan a party to both actions. Mr. Meehan filed a Crossclaim against Mr. Johnson for a determination of paternity.

7. On 21 October 1992, a hearing was held on Lisa McGhee Johnson's Motion for Blood Testing and/or Physical Examination. The Honorable O. Henry Willis, Jr. entered an order denying this motion.

8. Although Mr. Meehan was a party to this action prior to the hearing on 21 October 1992, he was not served by either Sammy Roger Johnson, Jr. or Lisa McGhee Johnson or their attorneys with notice of the hearing held on 21 October 1992. Mr. Meehan did not attend the hearing or present any evidence and was not represented by counsel at the hearing. On or about 10 November 1993, an Order was entered by the undersigned granting Thomas Meehan's Motion for New Trial.

9. Sammy Roger Johnson was out of the United States in Saudi Arabia for a six (6) month period ending on 15 March 1991. During February 1991, Lisa Johnson (Meehan) had sexual intercourse with Thomas Meehan approximately twenty (20) times. Lisa testified that in February 1991, she did not have sexual intercourse with anyone other than Thomas Meehan. From 1 March 1991 until 15 March 1991, Lisa Johnson Meehan had sexual intercourse with Thomas Meehan approximately ten (10) times. From 1 March 1991 until 15 March 1993, Lisa Johnson (Meehan) did not have sexual intercourse with anyone other than Thomas Meehan.

10. Sammy Roger Johnson returned to the United States on 15 March 1991 and he and Lisa Johnson (Meehan) had sexual intercourse at least one time on this occasion.

11. Lisa Johnson (Meehan) and Thomas Meehan testified that they have married and have a daughter named Amanda Meehan, born 5 August 1993, who is the sister of the child Samantha Johnson. Amanda was born twelve months after Mr. Johnson and Mrs. Meehan separated from one another. Sammy Johnson testified that he is not the father of Amanda Meehan. However 12. On or about 7 March 1992, Lisa Johnson (Meehan) told Sammy Roger Johnson that she had an affair with Thomas Meehan and that Sammy Roger Johnson was not the biological father of Samantha Renee Johnson.

Sammy Roger Johnson's name appears on Amanda Meehan's birth certificate, since he was still married to Lisa Johnson on Amanda's date of birth.

13. Sammy Roger Johnson testified that Mrs. Meehan told him that he was not the biological father of Samantha Renee Johnson, but that she did not know who was the biological father.

14. Mrs. Meehan and Mr. Meehan have both submitted to blood and DNA testing in September 1992. The results of these tests were offered into evidence by Mr. Meehan at this hearing, but were not admitted into evidence by the court, and were neither available or ready at the time this court heard Mrs. Meehan's Motion for Blood Testing and/or Physical Examination on October 7, 1992, in File Number 92 CVD 1258.

15. For a period of at least one (1) year before Sammy Roger Johnson left for Saudi Arabia, he and Lisa Johnson (Meehan) had sexual intercourse without any contraception and had not conceived. The question of their ability to conceive and have a child arose before Sammy Johnson left for Saudi Arabia and he went for infertility testing to see if he had a problem.

16. The Court considered the information contained in Meehan's Exhibit 6.

17. Mrs. Meehan first learned that she was pregnant with Samantha Renee Johnson in or around early April, 1991. She had begun having morning sickness at that time, and she missed her monthly menstrual period. Mrs. Meehan went to the doctor in April, 1991, and her pregnancy was confirmed at that time. Samantha Renee Johnson was born on December 1, 1991, was a full-term baby, and was not born prematurely.

18. Mrs. Meehan testified that she believes that Mr. Meehan is the father of Samantha Renee Johnson. Mr. Meehan testified that he believes that he is the father of Samantha Renee Johnson. Mr. Johnson testified that he believes that he is the father of Samantha Renee Johnson.

19. Although Mrs. Meehan and Mr. Meehan, through their attorneys of record request to the court to grant Mr. Meehan's Motion for DNA and Blood Testing pursuant to both N.C.G.S. 8-50.1 and Rule 35 of the North Carolina Rules of Civil Procedure, the Court finds that the Motion should be allowed only pursuant to N.C.G.S. 8-50.1.

20. There has been good cause shown for the granting of Mr. Meehan's Motion for Blood Testing.

Based upon the foregoing Findings of Fact, the Court makes the following:

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the parties and the subject matter of this action.

2. This matter is properly before the court and all parties have received proper notice of the hearing.

3. The issue of paternity has been properly raised and pled by Mrs. Meehan in her Counterclaim and by Mr. Meehan in his Crossclaim filed in these actions.

4. Sammy Roger Johnson is an "alleged-parent defendant" by virtue of the counterclaim and crossclaim filed against him by Lisa Johnson (Meehan) and Thomas Meehan.

5. Mr. Meehan's Motion for Blood and DNA Testing should be granted, pursuant to N.C.G.S. 8-50.1.

6. There has been good cause shown for the granting of Mr. Meehan's Motion for Blood Testing.

7. Sammy Roger Johnson, Jr., Lisa McGhee Johnson Meehan, and Thomas C. Meehan are all parties to this action in which their physical conditions and blood groupings are in controversy. Samantha Renee Johnson is a child in the custody of a party or parties to this action, and her physical condition, including her blood grouping, is in controversy.

It is therefore ORDERED as follows:

1. All parties are ordered to submit themselves to Roche Biomedical Laboratory, 1643-A Owen Drive, Fayetteville, North Carolina (1-800-726-7624) for DNA and Blood Grouping testing, within forty five (45) days from entry of this Order on 19 January 1994. Sammy Roger Johnson, Jr. and Lisa McGhee Johnson Meehan, who have temporary joint custody, without...