Reynolds v. Motley

• Decision Date: 21 November 1989
• Docket Number: No. 8910DC178,8910DC178
• Citation: 385 S.E.2d 548,96 N.C.App. 299
• Court: North Carolina Court of Appeals
• Parties: Laucresta REYNOLDS v. Ervin Junior MOTLEY.

Page 548

385 S.E.2d 548

96 N.C.App. 299

Laucresta REYNOLDS v. Ervin Junior MOTLEY.

No. 8910DC178.

Court of Appeals of North Carolina.

Nov. 21, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. T. Byron Smith and Associate Atty. Gen. Bertha Fields, Child Support Enforcement, Raleigh, for plaintiff-appellee.

Sally H. Scherer, Raleigh, for defendant-appellant.

WELLS, Judge.

At the outset, we consider ex mero motu whether plaintiff is the proper party to prosecute this URESA action in North Carolina. URESA is a procedural device, adopted in every state, which provides a mechanism for the expedited enforcement of duties of child support. See N.C.Gen.Stat. ch. 52A (1984 and Supp.1988); 23 Am.Jur.2d 966, et seq. Under URESA, an obligee (i.e., one "to whom a duty of support is owed") who seeks to enforce child support obligations against an out-of-state obligor must file a verified complaint in the initiating state. N.C.Gen.Stat. §§ 52A-3(6), 52A-10; accord, Va.Code Ann. §§ 20-88.13(8), 20-88.21 (1983 and Supp.1989). The court in the initiating state must then determine whether the complaint "sets forth facts from which it may be determined that the defendant owes a duty of support and [whether] a court of the responding state may obtain jurisdiction of the defendant[.]" N.C.Gen.Stat. § 52A-11; accord, Va.Code Ann. § 20-88.22. If it finds these requirements to be satisfied, the initiating court transmits certified copies of the complaint to the court of the responding state for prosecution of the action. Id. When a court of North Carolina, acting as responding state, receives such copies from the court of the initiating state, it must, inter alia, docket the cause and notify the district attorney, who appears "on behalf of the obligee." N.C.Gen.Stat. §§ 52A-10.1, 52A-12.

The record discloses that the present action was instituted in Virginia by the DCSE, which filed a verified petition in the initiating court. That court, upon making the required findings, transmitted certified copies of the petition to the Wake County District Court, the jurisdiction of defendant's residence. In docketing the action, it appears that the name of the alleged mother, Laucresta Reynolds, was improperly substituted as plaintiff for that of DCSE. Laucresta Reynolds is neither an obligee as defined by URESA, nor did she file a verified complaint in the initiating state as required by URESA. We need not, however, dismiss the appeal for this technical defect, inasmuch as the record clearly shows that the action was prosecuted on behalf of DCSE, the real party in interest. Settle v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983); N.C.R.Civ.P., Rule 17 (1983). Accordingly, we turn to addressing the merits of the arguments brought forward by defendant.

Defendant first contends that the court erred in denying his motion to dismiss in that DCSE, because it did not have custody of the alleged children-obligees, had no standing to bring this action. We disagree.

G.S. § 52A-8.1 controls this issue. It provides:

Whenever a county of this State furnishes support to an obligee, it has the same right to invoke the provisions [of URESA] as the obligee to whom the support was furnished for the purpose of securing reimbursement for such support and of obtaining continuing support[.]

Our courts have held that an out-of-state governmental entity has standing to bring an action under this provision when (1) such entity has furnished support to an obligee via public assistance funds and (2) the obligee to whom such support was provided has assigned the right of enforcement under URESA to that governmental entity. Dept. of Social Services v. Skinner, 48 N.C.App. 621, 269 S.E.2d 678 (1980). Under URESA, such an assignment occurs by operation of law immediately upon the obligee's receipt of public assistance funds. N.C.Gen.Stat. § 52A-8.1; accord, Va.Code Ann. § 20-88.19; cf., N.C.Gen.Stat. § 110-137 (1988) (acceptance of public assistance constitutes an assignment of rights to the state or county). In this case the alleged children-obligees, by receiving public assistance in Virginia, effected an assignment of their rights of enforcement under URESA to DCSE by operation of law. Thus, DCSE has standing to bring this action. Dept. of Social Services, supra.

Defendant next contends that the court erred in denying his motion to dismiss for lack of subject matter jurisdiction in that his paternity and thus his duty of support under URESA was not established.

It is well settled that "paternity must be judicially established to warrant relief [under URESA]." Smith v. Burden, 31 N.C.App. 145, 228 S.E.2d 662 (1976). The record discloses that no judicial determination of defendant's paternity with respect to the alleged children-obligees had been made at the time this action was initiated. This, however, is not fatal, inasmuch as North Carolina courts are expressly granted the authority to "adjudicate the paternity issue" in actions brought under URESA. N.C.Gen.Stat. § 52A-8.2. Nevertheless, URESA, being a procedural mechanism for the enforcement of duties of support, does not provide additional substantive grounds for determining the existence of the duty of support. Stevens v. Stevens, 68 N.C.App. 234, 314 S.E.2d 786, cert. denied, 312 N.C. 89, 321 S.E.2d 908 (1984); see also Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954) (outlining the history of URESA). A fortiori, URESA does not provide additional grounds for determining paternity. Consequently, a North Carolina court adjudicating the issue of paternity in a URESA action must look to the applicable substantive law governing the determination of paternity. This, in turn, must be determined by reference to the statutory choice of law directive pertaining to URESA actions. Pieper v. Pieper, 323 N.C. 617, 374 S.E.2d 275 (1988).

The statutory choice of law directive pertaining to URESA actions is found at G.S. § 52A-8 which provides that

[d]uties of support applicable under [URESA] are those imposed or imposable under the laws of any state where the obligor was present during the period or any part of the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

Because there has been no showing to the contrary, defendant is presumed to have been present in North Carolina, the responding state, and thus our State's substantive laws apply to determine defendant's duties of support. Pieper, supra.

Under North Carolina law, the duty of a putative father to support his illegitimate child is predicated on the judicial establishment of his paternity with respect to such child "pursuant to G.S. 49-14." N.C.Gen.Stat. § 49-15 (1984); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976); see also, Napowsa v. Langston, 95 N.C.App. 14, 381 S.E.2d 882 (1989). G.S. § 49-14(a) provides, in pertinent part, that "[a] certified copy of a certificate of birth of the child shall be attached to the complaint." In the instant case, the record discloses that no such certified copies of the birth certificates of the alleged children-obligees were attached to the DCSE petition. Because this statutory prerequisite was not complied with, we are compelled to conclude that the North Carolina court was without subject matter jurisdiction to adjudicate defendant's paternity. See Dept. of Social Services v. Williams, infra. Since there was neither a prior judicial determination of defendant's paternity nor jurisdiction to adjudicate the issue of paternity, defendant's motion to dismiss for lack of subject matter jurisdiction should have been granted by the court. ¹

The State counters that a judicial determination of paternity is unnecessary in...