Jones v. Patience

• Decision Date: 06 February 1996
• Docket Number: No. COA95-270,COA95-270
• Court: North Carolina Court of Appeals
• Parties: Michael Dwight JONES, Plaintiff-Appellee, v. Mayumi J. PATIENCE, Defendant-Appellant.

Page 720

466 S.E.2d 720

121 N.C.App. 434

Michael Dwight JONES, Plaintiff-Appellee, v. Mayumi J. PATIENCE, Defendant-Appellant.

No. COA95-270.

Court of Appeals of North Carolina.

Feb. 6, 1996.

Edward P. Hausle, P.A. by Edward P. Hausle, Greenville, for defendant-appellant.

MARK D. MARTIN, Judge.

Defendant appeals from award of visitation rights to plaintiff and denial of defendant's motion for a new trial or altered judgment under N.C.R.Civ.P. 59.

The trial court's findings may be summarized as follows: plaintiff and defendant were married on 10 May 1981. Edward Michael Jones (child) was born during the marriage on 9 August 1989. Plaintiff, defendant, and the child lived together as a family unit. Plaintiff and defendant separated on 23 November 1991 and divorced on 19 July 1993.

Defendant knew, prior to the birth of the child, plaintiff was not the child's biological parent. Until early 1992 plaintiff believed he was the child's biological parent. For example, plaintiff was present at defendant's side during the delivery of the child; was involved in daily care and nurture of the child; and continued his relationship with the child after separation.

In February or March 1992, over two and one-half years after the child's birth, defendant advised plaintiff he was not the biological father of the child and unilaterally terminated plaintiff's visitation with the child.

On 18 August 1992 plaintiff filed a complaint seeking visitation with the child, alimony pendente lite, and equitable distribution. Based on the results of a voluntary blood grouping test which excluded plaintiff as the biological father, plaintiff alleged the child was born "out of wedlock." On 28 December 1992 defendant filed an answer and counterclaim seeking, in part, custody of the child. In her answer defendant asserted, "plaintiff is not the biological father of the child."

On 11 January 1993 the trial court issued an order resolving the issues of alimony pendente lite and equitable distribution. In that same order, the trial court, prior to awarding visitation, required the parties to submit to psychological evaluations. On 7 July 1993 the trial court granted temporary visitation to plaintiff and ordered periodic psychological evaluations of the child. The trial court also ordered plaintiff and defendant to submit to prospective psychological counseling as necessary.

On 18 August 1994 the trial court, conducting a "review of plaintiff's visitation privileges," found plaintiff had "not missed a scheduled visitation" during the preceding twelve-month period and, applying the best interests of the child standard, awarded visitation rights to plaintiff. In its order the trial court found as fact the child was born "out of wedlock." The trial court also found that blood grouping tests had excluded plaintiff as the biological father of the child.

The trial court further indicated, in its visitation order, defendant had represented to the court that Ed Greble was the biological father. The trial court found, however, that no blood grouping tests had been conducted to determine whether Greble was the father; that Greble had not executed an acknowledgement of paternity; and that the child's birth certificate had not been amended to reflect Greble as the biological father. Nevertheless, in the same order, the trial court directed defendant to "take appropriate steps to establish the paternity of the minor child so as to protect the child's legal rights."

On 23 August 1994 defendant filed a motion for a new trial or altered judgment under Rule 59. On 1 November 1994 the trial court denied defendant's Rule 59 motion.

On appeal defendant contends, among other things, that the trial court erred by: (1) awarding visitation rights to plaintiff in the absence of a finding that defendant is unfit to have custody of the child in violation of Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) and the First and Fourteenth Amendments to the United States Constitution; (2) delegating a judicial function by relying on psychological reports to support its conclusion visitation is in the best interests of the child; (3) admitting the psychological reports into evidence in the absence of their preparers, thereby denying defendant's right of cross-examination; (4) requiring defendant to undergo psychological counseling after the trial court adjudicated the visitation action; and (5) denying defendant's motion for a new trial or altered judgment from the order granting visitation to plaintiff.

I.

Defendant first contends the trial court erred by failing to give retroactive effect to the Supreme Court's ruling in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994).

It is well-settled that judicial decisions "are presumed to operate retroactively." MacDonald v. University of North Carolina, 299 N.C. 457, 462, 263 S.E.2d 578, 581, reh'g denied, 300 N.C. 380 (1980). Because Petersen clarifies an area of law, Bivens v. Cottle, 120 N.C.App. 467, 468, 462 S.E.2d 829, 830 (1995), we believe it should be applied retroactively to ensure appropriate custody and visitation rulings. Accordingly, we conclude the trial court erred by failing to give Petersen retroactive effect.

Based on Petersen and the First and Fourteenth Amendments to the United States Constitution, defendant alleges the trial court erred in awarding visitation to plaintiff where there was no finding defendant was unfit to have custody of the child.

Plaintiff, on the other hand, contends the child was born during the marriage and, therefore, under North Carolina law, he was presumed to be the child's father. Consequently, plaintiff argues granting reasonable visitation rights to him does not implicate Petersen, as he is not a stranger to the child, and, accordingly, visitation should be awarded in the best interests of the child.

A.

At the outset we must determine whether plaintiff has standing to seek visitation with the child under N.C.Gen.Stat. § 50-13.1(a). Section 50-13.1(a) provides:

Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.

Unless a contrary intent is clear, the word "custody" shall be deemed to include custody or visitation or both.

N.C.Gen.Stat. § 50-13.1(a) (1995).

The threshold question for our consideration is whether plaintiff is a "parent" under section 50-13.1(a).

North Carolina courts have long recognized that children born during a marriage, as here, are presumed to be the product of the marriage. Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968); 3 ROBERT E. LEE, NORTH CAROLINA FAMILY LAW § 250 (4th ed. 1981). "[T]he presumption is universally recognized and considered one of the strongest known to the law." In re Legitimation of Locklear, 314 N.C. 412, 419, 334 S.E.2d 46, 51 (1985); 3 LEE, NORTH CAROLINA FAMILY LAW § 250. The marital presumption reflects the force of public policy which seeks to prevent "parent[s] from bastardizing [their] own issue." State v. Rogers, 260 N.C. 406, 408, 133 S.E.2d 1, 2 (1963).

The trial court found, in its visitation order, the child was born "out of wedlock." The trial court also found blood grouping tests excluded plaintiff as the child's biological father. Noting defendant contends Ed Greble is the biological father, the trial court nonetheless acknowledged: that no blood grouping tests had been conducted to determine whether Greble was the father; that Greble had not executed an acknowledgement of paternity; and that plaintiff remains listed as the natural father on the child's birth certificate.

We note, as the trial court properly recognized, that the marital presumption ordinarily may be rebutted by evidence of blood grouping tests excluding a putative father as the biological father. N.C.Gen.Stat. § 8-50.1(b1) (Cum.Supp.1995); Wright v. Wright, 281 N.C. 159, 172, 188 S.E.2d 317, 326 (1972). Nevertheless, in the context of a custody dispute between the mother, and her husband or former spouse, concerning a child born during their lawful marriage, the marital presumption is rebuttable only upon a showing that another man has formally acknowledged paternity, see N.C.Gen.Stat. § 110-132 (1995), or has been adjudicated to be the father of the child, see N.C.Gen.Stat. § 49-12.1 (Cum.Supp.1995). Cf. In re Boyles v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762, 765 (1983) (spouse precluded from bastardizing child to further own self-interest in custody dispute); Nelson v. Nelson, 10 Ohio App.3d 36, 39, 460 N.E.2d 653, 655 (1983) (court prevented illegitimation of child where, among other things, "child ha[d] not been declared illegitimate by bastardy proceedings."). See also Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91, 106 (1989) (irrebuttable statutory presumption of paternity upheld because "Constitution protects the sanctity of the family"). To permit the marital presumption to be rebutted in this context, absent a determination that another man is the father of the child, would illegitimate the child in violation of the public policy of this State. See Settle v. Beasley, 309 N.C. 616, 621, 308 S.E.2d 288, 291 (1983) (child's "right[ ] to support, inheritance, and custody" and "mental health, outlook, attitude, and personality" may be directly affected by illegitimation); 1 ANN M. HARALAMBIE, HANDLING CHILD CUSTODY, ABUSE AND ADOPTION CASES § 3.02 (2d ed. 1987) (public policy prevents illegitimation "especially where there is no declaration of paternity by the natural father....").

In the present case, there is no evidence another man has either been adjudicated the father of the child or acknowledged his paternity. Accordingly, the marital presumption--that plaintiff is the natural father of the child--has not been rebutted and the trial court erred in finding otherwise. The plaintiff thus has...