{ "id": 8413235, "name": "WALTER MILLER, Plaintiff v. TERENCE RAY LILLICH and CYNTHIA JANE LILLICH, Individually and as Guardian for R.L., a minor, Defendants", "name_abbreviation": "Miller v. Lillich", "decision_date": "2004-12-21", "docket_number": "No. COA04-185", "first_page": "643", "last_page": "648", "citations": [ { "type": "official", "cite": "167 N.C. App. 643" } ], "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": "590 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916897 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0328-01" ] }, { "cite": "552 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "364 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "year": 2001, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 48-3-601", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "pin_cites": [ { "parenthetical": "emphasis added" }, { "page": "(2)(b)(4)" }, { "page": "(2)", "parenthetical": "b" }, { "page": "(2)(b)(4)(I)" }, { "page": "(2)", "parenthetical": "b" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 449, "char_count": 9823, "ocr_confidence": 0.736, "pagerank": { "raw": 2.443137112403286e-07, "percentile": 0.8032781061753022 }, "sha256": "1bb5c89be6b1bd30e61f78af34a10f493a9ce4db546a32150e3836326bade1a1", "simhash": "1:814a0262eca81374", "word_count": 1581 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and McCULLOUGH concur." ], "parties": [ "WALTER MILLER, Plaintiff v. TERENCE RAY LILLICH and CYNTHIA JANE LILLICH, Individually and as Guardian for R.L., a minor, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nDefendants appeal from an order determining that plaintiff\u2019s consent was necessary before defendants could adopt their daughter\u2019s child. After careful review, we affirm the order of the district court requiring plaintiff\u2019s consent before adoption proceedings could go forth.\nThe evidence presented before the trial court tended to show that while defendants\u2019 daughter, R.L., was still a minor, she and Walter Miller (plaintiff) began having a consensual sexual relationship. After plaintiff and R.L. had been in a monogamous sexual-relationship for approximately six months, the two conceived a child in May 2001. Although plaintiff and R.L. were \u201cboth really scared,\u201d plaintiff later assured R.L. that \u201cit would be okay.\u201d\nDefendants, Terence and Cynthia Lillith, R.L.\u2019s parents, brought an action in district court to determine whether plaintiffs consent was necessary for their adoption of the child. The district court initially determined that it was, but later granted defendants\u2019 motion for a new trial on the basis of newly discovered evidence regarding plaintiffs wages and payments. At the new trial, Judge Stiehl determined that plaintiffs consent was necessary under N.C. Gen. Stat. \u00a7 48-3-601 and entered an order consistent with that determination. Defendants appeal from that order.\nBoth parties agree that (1) N.C. Gen. Stat. \u00a7 48-3-601 is the controlling statute; (2) this adoption is a direct placement; (3) the minor\u2019s consent is not required since the child is under the age of 12; and (4) the mother\u2019s consent is necessary. The only dispute regards the consent of the father, plaintiff. The controlling statute on determining whether the consent of a putative father is necessary to an adoption, N.C. Gen. Stat. \u00a7 48-3-601 (2003) states in pertinent part:\n[A] petition to adopt a minor may be granted only if consent to the adoption has been executed by:\n(!)\u2022\u2022\u2022\n(2) . . .\na. . . .\nb. Any man who may or may not be the biological father of the minor but who:\n1. . . .\n2. . . .\n3. . . .\n4. Before the earlier of the filing of the petition or the date of a hearing under G.S. 48-2-206, has acknowledged his paternity of the minor and\nI. Is obligated to support the minor under written agreement or by court order;\nII. Has provided, in accordance with his financial means, reasonable and consistent payments for the support of the biological mother during or after the term of pregnancy, or the support of the minor, or both, which may include the payment of medical expenses, living expenses, or other tangible means of support, and has regularly visited or communicated, or attempted to visit or communicate with the biological mother during or after the term of pregnancy, or with the minor, or with both; or\nIII. After the minor\u2019s birth but before the minor\u2019s placement for adoption or the mother\u2019s relinquishment, has married or attempted to marry the mother of the minor by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or\n5. ...\nId. (emphasis added)\nDefendants first argue that the three sub-parts of N.C. Gen. Stat. \u00a7 48-3-601(2)(b)(4) are to be read conjunctively and not disjunctively; specifically they argue that the first two sub-parts must be read together as if connected by the word \u201cand,\u201d leaving sub-part three as an alternative to one and two together. The trial court determined that plaintiff met the requirements of N.C. Gen. Stat. \u00a7 48-3-601(2) (b)(4) (II) and ordered his consent necessary. Defendants argue that while plaintiff may have met sub section (2)(b)(4)(II), he clearly did not meet sub-part (I) of the same, i.e., he is not \u201cobligated to support the minor under written agreement or by court order[.]\u201d N.C. Gen. Stat. \u00a7 48-3-601(2)(b)(4)(I) (2003). Defendants would read sub-parts (I) and (II) together, and since plaintiff was not bound by an order or agreement then his consent to the adoption was not required under the statute.\nWe cannot agree with this interpretation of the statute. This is admittedly a complexly written statute, but nonetheless, the sub-parts of subsection (2) (b)(4) by their plain language suggest that they should be read disjunctively, each being an alternative to the other. See, e.g., In re Adoption of Byrd, 364 N.C. 188, 552 S.E.2d 142 (2001); In re Adoption of Shuler, 162 N.C. App. 328, 590 S.E.2d 458 (2004). The absence of \u201cor\u201d between sub-parts (I) and (n) does not mean the two are read together. To the contrary, when listing more than two phrases, the coordinating conjunction between them all falls properly before the last phrase in the list; so that it is \u201c1 . . . ; 2 . . .; or 3 ... A man who has acknowledged paternity does not need to be both \u201cobligated to support the minor under written agreement or by court order\u201d and to make reasonable and consistent payments, just one or the other. This is the plain language of the statute.\nDefendants next argue that without having a written agreement or child support order the trial court could not determine whether plaintiff\u2019s payments were sporadic or consistent, nor could it determine whether they were frivolous or reasonable. This argument is without merit as well. It is not necessary to determine whether plaintiff \u201chas provided, in accordance with his financial means, reasonable and consistent payments\u201d of support, as required by N.C. Gen. Stat. \u00a7 48-3-601(2) (b)(4) (II) (2003), solely by looking at a child support order or agreement. Nonetheless, the trial court did attempt to calculate plaintiffs probable support requirements under our statutory guidelines as a baseline for determining whether the payments made were reasonable and consistent. Although such a measure is not required by the statute, it was within the trial court\u2019s discretion to make its determination of reasonableness based on the comparison.\nFinally, defendants argue that the trial court erred by determining that the actual support payments made by plaintiff were \u201creasonable and consistent.\u201d Yet, defendants do not assign error or take exception to any findings of fact in the trial court\u2019s order. Accordingly, the court\u2019s findings are deemed conclusive and binding on this Court. See Shuler, 162 N.C. App. at 331, 590 S.E.2d at 460. Considering that, the trial court made numerous findings that are sufficient to support its conclusions of law, particularly findings number 10 and 11.\n10. The Plaintiff provided financial support for R.L. during the term of her pregnancy, to include payment of doctor\u2019s bills for the pregnancy testing and the purchase of necessary items for the child\u2019s future use. He purchased those items for the child separately from his family, who provided their own gifts to the child at two showers hosted by them for the Defendant mother prior to the child\u2019s birth.\n11. Plaintiff has continued to provide support for both R.L. and the child after the child\u2019s birth through both the payment of cash in the amount of at least $100.00 per month since the child\u2019s birth, and the continuing provision of items such as diapers and medicine for the child. This financial support, in light of the Plaintiff\u2019s limited financial means, is reasonable and consistent and has been in excess of that which would be required by the child support guidelines. If Plaintiff were employed full time earning minimum wage, his child support obligation under the statutory guidelines would be $57.00 per month. R.L. acknowledged in this hearing that she had previously testified that Walter Miller had provided everything she had indicated the child needed, with the exception of some bibs.\nWe cannot find error in the trial court\u2019s conclusion that plaintiff\u2019s payments were reasonable and consistent, and as such his consent was necessary to the child\u2019s adoption by defendants.\nWe find no error in the trial court\u2019s determination and affirm its order requiring plaintiff\u2019s consent to adoption.\nAffirmed.\nJudges MARTIN and McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendants-appellants Terence and Cynthia Lillich.", "Hedahl & Radtke, by Debra J. Radtke, for plaintiff-appellee Walter Miller." ], "corrections": "", "head_matter": "WALTER MILLER, Plaintiff v. TERENCE RAY LILLICH and CYNTHIA JANE LILLICH, Individually and as Guardian for R.L., a minor, Defendants\nNo. COA04-185\n(Filed 21 December 2004)\n1. Adoption\u2014 consent \u2014 statute\u2014disjunctive\nThe three parts of N.C.G.S. \u00a7 48-3-601(2)(b)(4) (concerning consent to adoption) are to be read disjunctively, each being an alternative to the other. While the statute is complexly written, the coordinating conjunction between the phrases falls properly before the last in the list, and the absence of \u201cor\u201d between the first two sub-parts does not mean that the two are read together.\n2. Adoption\u2014 reasonableness of putative father\u2019s support\u2014 child support guidelines\nIt was within the trial court\u2019s discretion in an adoption case to calculate the putative father\u2019s probable support requirements under the statutory guidelines to use as a baseline for determining the reasonableness and consistency of the putative father\u2019s support payments. A child support order or written agreement is not the sole measure of reasonableness and consistency for this determination.\n3. Adoption\u2014 support provided by putative father \u2014 consent of putative father needed\nThere was no error in the trial court\u2019s conclusion that the consent of the putative father was needed for adoption of a child where defendants did not assign error to the court\u2019s findings regarding support provided by the father, and those findings supported the conclusion that his payments were reasonable and consistent.\nAppeal by defendants from an order entered 17 October 2003 by Judge Robert J. Stiehl, III in Cumberland County District Court. Heard in the Court of Appeals 19 October 2004.\nManning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendants-appellants Terence and Cynthia Lillich.\nHedahl & Radtke, by Debra J. Radtke, for plaintiff-appellee Walter Miller." }, "file_name": "0643-01", "first_page_order": 673, "last_page_order": 678 }