{ "id": 8524775, "name": "EDWARD L. GARRISON, Director, Pitt County Department of Social Services, ex rel. BELINDA ANN CHAVIS, Plaintiff v. LINZER RAY BARNES", "name_abbreviation": "Garrison v. Barnes", "decision_date": "1994-12-06", "docket_number": "No. 943DC276", "first_page": "206", "last_page": "212", "citations": [ { "type": "official", "cite": "117 N.C. App. 206" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "43 ALR4th 579", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "431 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "error to allow defendant's motion to compel DNA testing to further establish paternity after paternity had been adjudicated because res judicata prohibited defendant from raising issue in subsequent hearings" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526440 ], "year": 1993, "pin_cites": [ { "parenthetical": "error to allow defendant's motion to compel DNA testing to further establish paternity after paternity had been adjudicated because res judicata prohibited defendant from raising issue in subsequent hearings" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0770-01" ] }, { "cite": "400 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "original paternity judgment ruled res judicata in later contempt proceedings where a blood test was requested" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528062 ], "year": 1991, "pin_cites": [ { "parenthetical": "original paternity judgment ruled res judicata in later contempt proceedings where a blood test was requested" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0719-01" ] }, { "cite": "339 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "court had no authority to alter or amend divorce judgment under Rule 59 pursuant to motion made more than 10 days after entry of judgment sought to be altered or amended" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521701 ], "year": 1986, "pin_cites": [ { "parenthetical": "court had no authority to alter or amend divorce judgment under Rule 59 pursuant to motion made more than 10 days after entry of judgment sought to be altered or amended" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0481-01" ] }, { "cite": "395 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495140, 2494919, 2493403, 2493532, 2495199 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0426-03", "/nc/327/0426-01", "/nc/327/0426-04", "/nc/327/0426-05", "/nc/327/0426-02" ] }, { "cite": "391 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "216" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524928 ], "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0423-01" ] }, { "cite": "281 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573603, 8573637, 8573542, 8573575, 8573552 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0319-04", "/nc/303/0319-05", "/nc/303/0319-01", "/nc/303/0319-03", "/nc/303/0319-02" ] }, { "cite": "277 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645181 ], "year": 1981, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0545-01" ] }, { "cite": "364 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "193" }, { "page": "193" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358534 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "519" }, { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0513-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-50.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "177 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "387" } ], "opinion_index": 1 }, { "cite": "277 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564805 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/nc/277/0305-01" ] }, { "cite": "431 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "the defendant was allowed to have a blood test performed upon a request made after entry of default but prior to entry of judgment" } ], "opinion_index": 1 }, { "cite": "110 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526440 ], "year": 1993, "pin_cites": [ { "parenthetical": "the defendant was allowed to have a blood test performed upon a request made after entry of default but prior to entry of judgment" } ], "opinion_index": 1, "case_paths": [ "/nc-app/110/0770-01" ] } ], "analysis": { "cardinality": 644, "char_count": 15371, "ocr_confidence": 0.729, "pagerank": { "raw": 2.4873414659129304e-07, "percentile": 0.808192678414842 }, "sha256": "5c9ffe34790d073134ee1fd6b64dff95687bb1fe16fd39c8866a25e10103d5ec", "simhash": "1:a9ac677e056f74eb", "word_count": 2599 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge WYNN dissents." ], "parties": [ "EDWARD L. GARRISON, Director, Pitt County Department of Social Services, ex rel. BELINDA ANN CHAVIS, Plaintiff v. LINZER RAY BARNES" ], "opinions": [ { "text": "GREENE, Judge.\nLinzer Ray Barnes (defendant) appeals from orders entered 30 April 1993 and 26 January 1994 by Judge E. Burt Aycock, Jr. (Judge Aycock) in Pitt County District Court, denying defendant relief from a default judgment entered 1 July 1991 which declared defendant the natural and legal father of Aaron Edward Chavis (Aaron) and ordered defendant to pay Belinda Ann Chavis (Ms. Chavis) child support.\nOn 9 August 1990, Ms. Chavis gave birth to Aaron out of wedlock. On 22 April 1991, Edward L. Garrison (plaintiff), the director of Pitt County Department of Social Services (DSS), filed a complaint on behalf of Ms. Chavis, requesting an adjudication that defendant is the biological and legal father of Aaron, an order obligating defendant to pay child support, and an order requiring defendant to indemnify the State of North Carolina for past public assistance paid to Aaron. Plaintiff also requested that defendant provide continuing medical support for Aaron, pay the costs of the action, and add Aaron as a beneficiary under any health insurance plan.\nOn 28 May 1991, plaintiff filed an application for default because defendant, having been personally served with process on 24 April 1991, failed to answer plaintiffs complaint within the time allowed by law for filing an answer. The Pitt County Clerk of Court entered default on 28 May 1991. On 1 July 1991, Judge George L. Wainwright (Judge Wainwright) entered a default judgment against defendant containing the following finding of fact:\n12. The defendant came into Court this day and requested the opportunity to have blood testing completed. However, the defendant has requested blood testing on three (3) occasions but has failed to appear for such blood testing and has failed to pay any part of the blood testing. The defendant missed opportunities to have blood testing completed on February 22, 1991, March 29, 1991, and May 31, 1991. The defendant has, therefore, waived his right to have blood testing completed in this case.\nJudge Wainwright then concluded that defendant is the biological father of Aaron and ordered defendant to pay plaintiff child support, past public assistance paid, to add Aaron as a beneficiary to any health insurance plan, taxed all costs against defendant, and ordered that defendant\u2019s state and federal income tax refunds are subject to garnishment as long as any arrearage remains due.\nOn 23 February 1993, defendant filed a verified motion for relief from judgment pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, requesting the court to grant defendant relief from the default judgment by suspending the judgment and setting it aside pending a blood test to determine paternity and to order defendant, Ms. Chavis, and Aaron to undergo a blood grouping test. The motion alleged he is not the father of Aaron and that:\n2. . . . defendant had a constitutional right to counsel which he would have exercised if the right had been made known to him. ...\n3. At the time the default judgment was entered on 30 July 1991, the Defendant was incarcerated .... At no time while he was incarcerated up to the date judgment was entered was the defendant notified of the Court hearing.\n6. It is manifestly unjust and inequitable to require defendant to support a child when he is not the actual biological father of the child.\n10. . . . Extraordinary circumstances exist and justice demands that defendant be granted relief from the judgment pending blood testing.\nOn 1 April 1993, defendant filed a motion for blood test pursuant to N.C. Gen. Stat. \u00a7 8-50.1(b) \u201cfor the purpose of excluding the defendant\u2019s paternity in support of defendant\u2019s motion for relief from judgment entered by default in this matter.\u201d\nAn order by Judge Aycock was filed on 11 October 1993, nunc pro tunc for 30 April 1993. In his order, Judge Aycock found as a fact that defendant asserted \u201che was entitled to relief from the [default] judgment on the grounds that he had made a request of the Court in. the civil proceeding for blood testing and that, upon such request, the Court was mandated by statute to order the blood testing. The defendant indicated that the July 1991 order violated his statutory rights under N.C.G.S. 8-50.1(b) and his constitutional rights to due process and equal protection of law.\u201d Judge Aycock concluded \u201cdefendant is not entitled to an order for a blood test or for relief from the judgment of paternity and child support\u201d and therefore denied his motions and ordered defendant to \u201ccontinue to pay child support in accordance with the previous orders of this Court.\u201d\nOn 6 May 1993, defendant filed a motion for new trial, to amend judgment, and for relief from judgment under Rules 59(a)(1), 59(a)(8), 59(e), 60(b)(4), and 60(b)(6) and requested the court for \u201ca new hearing and trial on the issue of his paternity and compelling a blood test, to amend or alter the judgment entered on 30 April 1993 so as to vacate the 1 July 1991 judgment and allow him relief therefrom and a blood test, and to grant him relief from the judgment entered on 1 July 1991 and 30 April 1993 by suspending the judgment and setting it aside pending a blood test to determine paternity.\u201d In his motion, defendant alleged the following:\n2. . . . Notwithstanding the mandatory provisions of NCGS 8-50.1, the Court erroneously denied the defendant\u2019s request and motion on the purported basis that he had waived his right to such a test by failing to have the test conducted on occasions prior to the filing of the action and prior to the making of his motion before the Court in this civil proceeding.\n5. The defendant was deprived of statutory and constitutional guarantees in violation of the provisions of the North Carolina Constitution (Article I, sections 18, 19) and United States Constitution (14th Amendment, 5th Amendment) which guarantee equal protection of the laws, due process of law, fundamental fairness, and open courts for the fair administration of justice.\n6. The failure of the Court to grant defendant relief from the judgment of paternity and support based upon the denial of his statutory and constitutional rights constitutes prejudicial legal errors. The irregularities occurring on 1 July 1991 and 30 April 1993 prevented defendant from having a fair trial and hearing, render the judgments void or voidable, and justify relief from the operation of the judgment.\nBy order entered 26 January 1994, Judge Aycock, \u201c[hjaving reviewed the record and the defendant\u2019s motion,\u201d denied defendant\u2019s motions for new trial, to amend the judgment entered 30 April 1993, and for relief from the judgments and orders entered on 1 July 1991 and 30 April 1993.\nThe issues presented are whether (I) there is any evidence in the record to support the granting of defendant\u2019s Rule 60(b)(6) motion for relief from judgment; and (II) Judge Aycock erred in denying defendant\u2019s motion for blood testing under Section 8-50.1(b).\nI\nDefendant argues in his Rule 60(b)(6) motion that \u201cstatutory and constitutional mandates were not properly considered or followed by the court, and the public and legal policies of this State in determining paternity were not applied\u201d because Judge Wainwright failed to enter an order on 1 July 1991 for blood testing under N.C. Gen. Stat. \u00a7 8-50.1(b) and failed to provide defendant with counsel. Thus, defendant\u2019s argument concerns errors of law alleged to have been made by Judge Wainwright in entering default judgment.\nRule 60(b)(6) provides that a party may make a motion to the trial court to seek relief from any judgment or order of the trial court for, in addition to specific reasons listed in Rule 60(b)(1) to (5), \u201c[a]ny other reason justifying relief from the operation of the judgment.\u201d N.C.G.S. \u00a7 1A-1, Rule 60(b)(6) (1990). It is well settled, however, that Rule 60(b)(6) does not include relief from errors of law, Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988), or erroneous judgments. Town of Sylva v. Gibson, 51 N.C. App. 545, 548, 277 S.E.2d 115, 117, disc. rev. denied, 303 N.C. 319, 281 S.E.2d 659 (1981). \u201cThe appropriate remedy for errors of law committed by the court is either appeal or a timely motion for relief under N.C.G.S. Sec. 1A-1, Rule 59(a)(8).\u201d Hagwood, 88 N.C. App. at 519, 364 S.E.2d at 193. Therefore, because defendant attempted to use a Rule 60(b)(6) motion as a substitute for appellate review, Judge Aycock\u2019s order denying defendant\u2019s Rule 60(b)(6) motion must be affirmed. Id.; see also Chicopee Inc. v. Sims Metal Works, 98 N.C. App. 423, 431, 391 S.E.2d 211, 216 (because Rule 60 motion was inappropriate vehicle to review allegedly erroneous judgment, we did not consider disposition of plaintiff\u2019s Rule 60 motion), disc. rev. denied, 327 N.C. 426, 395 S.E.2d 674 (1990). For the same reasons, Judge Aycock did not err in denying defendant\u2019s Rule 60 motion made on 6 May 1993.\nDefendant also appeals from the denial of his motions under Rules 59(a)(1) and (8) and 59(e) seeking a new trial and an amendment of the judgment entered 30 April 1993. Because defendant\u2019s motion for new trial was filed on 6 May 1993, more than ten days after entry of the default judgment on 30 July 1991, Judge Aycock correctly denied that motion. N.C.G.S. \u00a7 1A-1, Rule 59(b) (1990); see Coats v. Coats, 79 N.C. App. 481, 339 S.E.2d 676 (1986) (court had no authority to alter or amend divorce judgment under Rule 59 pursuant to motion made more than 10 days after entry of judgment sought to be altered or amended). Furthermore, because Rule 59 is an inappropriate vehicle to challenge the denial of a Rule 60 motion, Judge Aycock did not abuse his discretion in denying defendant\u2019s motion to amend the 30 April 1993 denial of his Rule 60(b)(6) motion. N.C.G.S. \u00a7 1A-1, Rule 59 (1990); W. Brian Howell, Shuford, North Carolina Civil Practice & Procedure \u00a7 59, at 625 (4th ed. 1992) (Rule 59 provides relief from judgments in jury or nonjury trials resulting from errors occurring during trial).\nII\nJudge Aycock did not abuse his discretion in denying defendant\u2019s motion for blood testing pursuant to N.C. Gen. Stat. \u00a7 8-50.1(b). Because the default judgment conclusively established defendant\u2019s paternity, defendant having failed to appeal the default judgment or make a timely motion under Rule 59(a)(8), res judicata barred the granting of defendant\u2019s motion for blood testing. See Sampson County Child Support Enforcement Agency ex rel. McNeill v. Stevens, 101 N.C. App. 719, 400 S.E.2d 776 (1991) (original paternity judgment ruled res judicata in later contempt proceedings where a blood test was requested); State ex rel. Hill v. Manning, 110 N.C. App. 770, 431 S.E.2d 207 (1993) (error to allow defendant\u2019s motion to compel DNA testing to further establish paternity after paternity had been adjudicated because res judicata prohibited defendant from raising issue in subsequent hearings).\nFor these reasons, the trial court\u2019s decisions are\nAffirmed.\nJudge JOHN concurs.\nJudge WYNN dissents.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Wynn\ndissenting.\nDefendant filed a Rule 60(b) motion for relief from default judgment. The majority correctly holds that the relief defendant is seeking can only be obtained through an appeal of the judgment to this Court. Since defendant did not follow the correct procedure, this case is subject to dismissal. Under Rule 2 of the Rules of Appellate procedure, however, this Court has the power to suspend the rules in order to prevent manifest injustice to a party. I would exercise our Rule 2 authority and conclude that defendant should have been permitted to take a paternity test.\nThe trial court should have allowed for defendant\u2019s paternity test because \u201ca defendant\u2019s right to a blood test is a substantial right and . . . upon defendant\u2019s motion, the court must order the test when it is possible to do so.\u201d State v. Fowler, 277 N.C. 305, 177 S.E.2d 385, 387 (1970). In the subject case, defendant requested a blood test on three separate occasions, but, on each occasion, he was unable to pay the $225.00 fee. Since defendant\u2019s request was made before the default judgment was entered, the trial court should have ordered the blood test and, following a failure by defendant to take the court ordered test, the court should have then acted. See State ex rel. Hill v. Manning, 110 N.C. App. 770, 431 S.E.2d 207 (1993) (the defendant was allowed to have a blood test performed upon a request made after entry of default but prior to entry of judgment). The court should not have acted, however, based on defendant\u2019s failure take a blood test which defendant personally requested; especially since defendant\u2019s failure was due to his indigency.\nUnder the circumstances of this case, it is not fair to burden defendant with the financial responsibility of a child that he contends is not his when there is a genetic test that can answer this simple question. The implications of finding him to be the father of the subject child based on an entry of default is not only unfair to him \u2014 it is an indignity to the child. Modern science has advanced the accuracy of a blood test for paternity to nearly a point of certainty. Defendant adamantly contends that he is not the father of the subject child, and, because of his indigency, he has been denied the opportunity to have this matter settled by a test that should have been ordered by the trial court. Moreover, should he wilfully fail to obey the trial court\u2019s order for the paternity test, the trial court should exercise its contempt powers, rather than summarily entering a judgment that he is the father of the subject child.", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Pitt County Legal Department, by Associate County Attorney Pamela Weaver Best and Staff Attorney Amy K Cooney, for plaintiff-appellee.", "Jeffrey L. Miller for defendant-appellant." ], "corrections": "", "head_matter": "EDWARD L. GARRISON, Director, Pitt County Department of Social Services, ex rel. BELINDA ANN CHAVIS, Plaintiff v. LINZER RAY BARNES\nNo. 943DC276\n(Filed 6 December 1994)\n1. Trial \u00a7 559 (NCI4th)\u2014 defendant\u2019s inappropriate use of Rule 59 and 60 motions \u2014 no error in denying relief\nBecause defendant attempted to use a Rule 60(b)(6) motion as a substitute for appellate review, the trial court\u2019s order denying defendant\u2019s Rule 60(b)(6) motion must be affirmed; because defendant\u2019s motion for new trial was filed more than ten days after entry of the default judgment, the trial court properly denied that motion; and because Rule 59 is an inappropriate vehicle to challenge the denial of a Rule 60 motion, the trial court did not abuse its discretion in denying defendant\u2019s motion to amend the denial of his Rule 60(b)(6) motion.\nAm Jur 2d, New Trial \u00a7\u00a7 338 et seq.\n2. Illegitimate Children \u00a7 11 (NCI4th); Evidence and Witnesses \u00a7 1920 (NCI4th)\u2014 motion for Mood testing barred by res judicata\nRes judicata barred the granting of defendant\u2019s motion for blood testing because an earlier default judgment conclusively established defendant\u2019s paternity, and defendant failed to appeal the default judgment or make a timely motion under Rule 59(a)(8).\nAm Jur 2d, Bastards \u00a7 118; Evidence \u00a7 573; Judgments \u00a7\u00a7 606 et seq.\nAdmissibility and weight of blood-grouping tests in disputed paternity cases. 43 ALR4th 579.\nJudge Wynn dissenting.\nAppeal by defendant from orders entered 30 April 1993 and 26 January 1994 in Pitt County District Court by Judge E. Burt Aycock, Jr. Heard in the Court of Appeals 26 October 1994.\nPitt County Legal Department, by Associate County Attorney Pamela Weaver Best and Staff Attorney Amy K Cooney, for plaintiff-appellee.\nJeffrey L. Miller for defendant-appellant." }, "file_name": "0206-01", "first_page_order": 238, "last_page_order": 244 }