Williams v. Holland

• Decision Date: 19 December 1978
• Docket Number: No. 788DC98,788DC98
• Citation: 249 S.E.2d 821,39 N.C.App. 141
• Parties: Amelia Gail WILLIAMS v. Conrad E. HOLLAND.
• Court: North Carolina Court of Appeals

Page 821

249 S.E.2d 821

39 N.C.App. 141

Amelia Gail WILLIAMS v. Conrad E. HOLLAND.

No. 788DC98.

Court of Appeals of North Carolina.

Dec. 19, 1978.

Dees, Dees, Smith, Powell & Jarrett by Tommy W. Jarrett, Goldsboro, for plaintiff.

Barnes, Braswell & Haithcock by W. Timothy Haithcock, Goldsboro, for defendant.

BROCK, Chief Judge.

General Statute No. 8-50.1 provides that, "(i)n the trial of any civil action, the court before whom the matter may be brought, upon motion of either party, shall direct and order that the defendant, the plaintiff, the mother and the child shall submit to a blood grouping test; provided . . .." In Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972), the court held that this portion of the statute, applicable to civil actions only, is qualified by certain language found in that portion of the statute dealing separately with criminal proceedings. The portion of the statute dealing with criminal proceedings provides, "(i)n the trial of any criminal action or proceedings . . . In which the question of paternity arises, . . . the court before whom the matter may be brought, . . . shall direct and order that the defendant, the mother and the child shall submit to a blood grouping test; provided . . .." That the italicized portion of the criminal proceedings section of the statute applies as well to the civil proceedings section of the statute was the holding in Wright. Thus, before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. If defendant in this case is barred by Res judicata or estoppel from raising the issue of paternity as plaintiff contends, the statutorily imposed obligation of the court to order that the parties submit to blood-grouping tests never arose, and it was error for the court to enter such order.

The parties bring to our attention two cases that have considered the initial question of whether the issue of paternity can be raised by a party to a civil action. In Wright, supra, an action brought by the wife for custody and support of the parties' minor children, the husband filed an answer admitting a particular child was born of the parties' marriage and that he owed a duty of support to the child. Subsequently, however, the husband made a motion for a blood-grouping test, which the court granted. When the results of the tests indicated the husband was excluded as the father of the child, the court granted the husband's motion to amend his answer by deleting his admissions of paternity. On appeal the wife contended on the basis of the husband's admissions in his original answer and his previous conduct acknowledging paternity of the child that he should be estopped from raising the issue of paternity. Although acknowledging that "(i)t may be that the putative father of a child conceived or born during wedlock should be estopped to raise the issue of paternity unless he does so within a fixed time," the court rejected the wife's contention on grounds that such a result must be effected by legislative action. Id. at 172, 188 S.E.2d at 326.

Brondum v. Cox, 30 N.C.App. 35, 226 S.E.2d 193 (1976), Affirmed, 292 N.C. 192, 232 S.E.2d 687 (1977), presented substantially the same issue raised in this appeal. In that case, plaintiff-wife brought an action under the Uniform Reciprocal Enforcement of Support Act to obtain an order requiring her ex-husband to support her child. Plaintiff-wife's action was based on the provisions of a Hawaiian divorce decree obtained by her in a proceeding in which her ex-husband made no appearance, although the Hawaii court attempted to exercise personal jurisdiction over him by serving the summons, complaint, and other papers on him by mail in North Carolina, where he was domiciled at the time. Defendant-husband filed an answer to plaintiff-wife's enforcement action denying he was the father of the child and requesting an order for a blood-grouping test. The District Court entered an order finding the Hawaii court had only In rem jurisdiction to enter the divorce, child custody, and child support decrees. The court ruled, however, that because the issue of paternity was inextricably bound up in the determination of the above matters, the finding of paternity by the Hawaii court was conclusive and the issue could not be relitigated by defendant-husband in plaintiff-wife's enforcement action. From the denial of his motion, defendant-husband appealed to the Court of Appeals, which reversed the judgment of the District Court in an opinion subsequently affirmed by the Supreme Court. The reversal by the appellate court was based on the conclusion that a judgment establishing the status of paternity is one In personam and can be rendered only by a court having jurisdiction over the person of the defendant, which the Hawaii court did not have in plaintiff-wife's divorce action. Therefore, the courts of North Carolina were not required to accord full faith and credit to that part of the Hawaiian judgment finding defendant-husband to be the father of plaintiff-wife's child, and defendant-husband was entitled to raise the issue of paternity in plaintiff-wife's enforcement action.

We think the court's holding in Wright applies only to the estoppel contentions raised by plaintiff. The factual basis of plaintiff's contention that defendant should be estopped from denying paternity because of a past history of both formal and informal acknowledgement of paternity of the child is substantially the same as that shown in Wright. We agree with the Supreme Court's suggestion that, ". . . the putative father of a child conceived or born during wedlock should (perhaps) be estopped to raise the issue of paternity unless he does so within a fixed time." But we also realize that ". . . is a matter for consideration by the General Assembly." Wright, supra, at 172, 188 S.E.2d at 326.

Brondum, however, is distinguishable from the case under consideration and offers considerable support, albeit in Dictum, for the disposition we make of this case. The critical, underlying basis for the court's decision in Brondum that the adjudication of paternity in the wife's Hawaiian divorce action was not entitled to full faith and credit in the courts of this state was the fact that the Hawaiian court did not have In personam jurisdiction over defendant-husband when it granted plaintiff-wife a divorce and adjudicated the issue of paternity. See Survey of Developments in North Carolina Law, 1977, Civil Procedure, 56 N.C.L.Rev. 874-76 (1978). In this instance, the Nevada court, which granted plaintiff a divorce, awarded her child custody and support, and decreed the child, Joelle, to be a child born of the marriage, did have jurisdiction over the person of defendant. Among the documents relating to the Nevada proceeding that plaintiff submitted to the District Court was a power of attorney properly executed by defendant authorizing a Nevada attorney or his designate to "enter my appearance and represent me in said action at any time after the Complaint is filed to the same extent as if I were personally present. . . ." The record further shows that the attorney so authorized filed an answer on defendant's behalf in which it was admitted that the child, Joelle, was born the issue of the marriage.

"While it is true that no consent can give a court jurisdiction of the subject matter of an action which the court does not possess without such consent, it is equally true that a court may obtain jurisdiction over the person of a party litigant by his consent." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953). It is also uniformly held that a general appearance by a defendant in a civil suit is sufficient to confer jurisdiction over his person on the court before which he appears. In re Blalock, 233 N.C. 493, 64 S.E.2d 848 (1951). And a defendant may appear either himself or he may authorize another to appear for him. 5 Am.Jur.2d, Appearance, § 10, p. 487. In view of the fact that defendant properly authorized an attorney to enter a general appearance for him in the Nevada divorce proceeding and the attorney so authorized filed an answer to plaintiff's complaint in that action, it is clear that the Nevada court had jurisdiction over the person of defendant. Defendant is therefore bound by any order of the Nevada court requiring the assertion of In personam jurisdiction.

"The constitutional command of full faith and credit, as implemented by Congress, requires that 'judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken.' Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it." Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186, 190 (1963). And in Sears...