{
  "id": 4164499,
  "name": "IN RE: MICHAEL G. PAPATHANASSIOU",
  "name_abbreviation": "In re Papathanassiou",
  "decision_date": "2009-02-03",
  "docket_number": "No. COA08-95",
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    "judges": [
      "Chief Judge MARTIN and Judge McGEE concur."
    ],
    "parties": [
      "IN RE: MICHAEL G. PAPATHANASSIOU"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nThe paramount question presented by this appeal is whether the sole factual issue before the court in a legitimation proceeding pursuant to N.C. Gen. Stat. \u00a7\u00a7 49-10 and 49-12.1 is the determination of whether the petitioner is the biological father of the minor child. We hold that it is.\nBackground and Procedure\nOn 25 June 1995, Andrew Papathanassiou (\u201cRespondent\u201d) and Altona Dee Jetton Papathanassiou (\u201cMs. Jetton\u201d) were married. On 23 December 1997, Ms. Jetton gave birth to Michael Gray Papathanassiou (\u201cthe child\u201d). Respondent and Ms. Jetton were listed as the child\u2019s father and mother on the child\u2019s birth certificate. At the time the child was conceived and born, Respondent was unaware that he was not the biological father of the child. In the spring of 1998, Respondent obtained a DNA test which indicated that he was not the child\u2019s biological father. Nevertheless, Respondent continued to regard and conduct himself as the child\u2019s father in every other way. On 12 January 2000, Ms. Jetton gave birth to William Garret Papathanassiou, who is Respondent\u2019s biological child.\nOn or about 1 February 2002, Respondent and Ms. Jetton separated. On 4 June 2003, Ms. Jetton filed a complaint against Respondent in Mecklenburg County District Court seeking, inter alia, custody and child support for the two minor children \u201cborn during the parties\u2019 marriage[.]\u201d On 30 July 2002, Ms. Jetton filed an amended complaint, alleging that only \u201c[o]ne child was born of the marital relationship,\u201d namely William.\nOn 1 August 2003, a consent order was entered, finding as fact that Ms. Jetton and Respondent were \u201cthe biological parents of one child,\u201d William, and resolving the issues of child custody and child support with respect to William only. On 6 October 2003, Respondent and Ms. Jetton were divorced.\nOn 11 May 2005, Gordon B. Grigg (\u201cPetitioner\u201d) filed a Petition to Legitimate in a special proceeding before the Mecklenburg County Clerk of Superior Court. The petition sought to legitimate the child pursuant to N.C. Gen. Stat. \u00a7 49-10. On 9 June 2005, Respondent, although not yet a party to the proceeding, filed a motion to dismiss, alleging that the petition was fatally defective for failing to name him as a necessary party,' for insufficiency of service of process, and for failing to request or obtain appointment of a guardian ad litem for the child, as required by N.C. Gen. Stat. \u00a7 49-12.1(a).\nRespondent\u2019s motion was heard on 14 June 2005 by the Honorable Martha H. Curran, Mecklenburg County Clerk of Superior Court. The Clerk granted a continuance to allow for personal service on Respondent and appointed a guardian ad litem for the child.\nOn 2 August 2005, the Clerk convened a hearing on the Petition to Legitimate. On 18 August 2005, the Clerk entered an Order to Legitimate decreeing that \u201c[t]he minor child, Michael Gray Papathanassiou, is declared legitimate, Petitioner is declared the biological father[],\u201d and \u201c[t]he minor child\u2019s name is changed to Michael Gray Grigg[.]\u201d\nFrom this order, Respondent appealed to the Superior Court of Mecklenburg County for a hearing de novo pursuant to N.C. Gen. Stat. \u00a7 l-301.2(e). On 20 February 2006, Petitioner filed a Motion in Limine and Citation of Authority, requesting that the trial court dismiss Respondent\u2019s appeal on grounds that Respondent was not a necessary party to the action and requesting that Respondent be precluded from using any pleading, testimony, remarks, questions, or argument regarding the best interest of the child. On 26 October 2006, Petitioner filed \u00e1 Motion for Summary Judgment. On 31 October 2006, Petitioner filed an Amended Motion for Summary Judgment.\nOn 2 November 2006, Petitioner filed another Motion in Limine, requesting that the trial court exclude any evidence regarding the child\u2019s best interest or public policy concerns of legitimating the child, and seeking to limit the evidence solely to the issue of biological paternity. On 6 February 2007, Petitioner filed a Second Amended Motion for Summary Judgment.\nOn 13 February 2007, Respondent filed responses to Petitioner\u2019s motions in limine. A hearing on Petitioner\u2019s motion for summary judgment and motions in limine was held on 14 February 2007 before the Honorable Timothy S. Kincaid. On that day, the trial court entered an Order Granting Summary Judgment, declaring the child to be legitimate, declaring Petitioner to be the child\u2019s biological father, and allowing the child\u2019s last name to remain Grigg.\nFrom the Order to Legitimate and the Order Granting Summary Judgment, Respondent appeals.\nDiscussion\nRespondent argues that the trial court improperly granted summary judgment in favor of Petitioner. Specifically, Respondent asserts the trial court erroneously considered DNA evidence of Petitioner\u2019s biological parentage of the child as conclusive evidence that the child should be legitimated as the child of Petitioner, without consideration of the child\u2019s best interest. Petitioner further argues that summary judgment was inappropriate as there is a genuine issue of material fact regarding the child\u2019s best interest.\n\u201cNorth Carolina courts have long recognized that children bom during a marriage . . . are presumed to be the product of the marriage.\u201d Jones v. Patience, 121 N.C. App. 434, 439, 466 S.E.2d 720, 723, appeal dismissed and disc. review denied, 343 N.C. 307, 471 S.E.2d 72 (1996). \u201cThe presumption is universally recognized and considered one of the strongest known to the law.\u201d In re Legitimation of Locklear, 314 N.C. 412, 419, 334 S.E.2d 46, 51 (1985). However, \u201c[t]he presumption of legitimacy can be overcome by clear and convincing evidence.\u201d N.C. Gen. Stat. \u00a7 49-12.1(b) (2005).\nPursuant to N.C. Gen. Stat. \u00a7 49-12.1, \u201c[t]he putative father of a child born to a mother who is married to another man may file a special proceeding to legitimate the child.\u201d N.C. Gen. Stat. \u00a7 49-12.1(a) (2005). The putative father\nmay apply by a verified written petition, filed in a special proceeding in the superior court of the county in which the putative father resides or in the superior court of the county in which the child resides, praying that such child be declared legitimate.\nN.C. Gen. Stat. \u00a7 49-10 (2005). The mother, if living, the child, and the spouse of the mother of the child shall be necessary parties to the proceeding. N.C. Gen. Stat. \u00a7 49-10; N.C. Gen. Stat. \u00a7 49-12.1(a). \u201cA guardian ad litem shall be appointed to represent the child if the child is a minor.\u201d N.C. Gen. Stat. \u00a7 49-12.1(a).\nIf it appears to the court that the petitioner is the father of the child, the court may thereupon declare and pronounce the child legitimated; and the full names of the father, mother and the child shall be set out in the court order decreeing legitimation of the child.\nN.C. Gen. Stat. \u00a7 49-10.\n\u201c[0]ur General Assembly has continually enacted and modified legislation to establish legal ties binding illegitimate children to their biological fathers and to acknowledge the rights and privileges inherent in the relationship between father and child.\u201d Rosero v. Blake, 357 N.C. 193, 201, 581 S.E.2d 41, 46 (2003), cert. denied, 540 U.S. 1177, 158 L. Ed. 2d 78 (2004). Legitimation of a child under Chapter 49\nimpose[s] upon the father and mother all of the lawful parental privileges and rights, as well as all of the obligations which parents owe to their lawful issue, and to the same extent as if said child had been bom in wedlock, and to entitle such child by succession, inheritance or distribution, to take real and personal property by, through, and from his or her father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock.\nN.C. Gen. Stat. \u00a7 49-11 (2005). By specifying the manner in which an illegitimate child\u2019s paternity may be established, the legislature has attempted to grant to illegitimate children rights of inheritance on par with those enjoyed by legitimate children. Mitchell v. Freuler, 297 N.C. 206, 216, 254 S.E.2d 762, 768 (1979). Accordingly, the inquiry in Sections 49-10 and 49-12.1 is whether the petitioner is the biological father of the minor child such that the rights and responsibilities inherent in the relationship between father and child may be acknowledged.\nCiting N.C. Gen. Stat. \u00a7\u00a7 50-13.2, 7B-1110, and 48-1-101, Respondent asserts that \u201c[i]t is implicit in all of North Carolina\u2019s statutes regarding minor children that the court should consider the best interest of the child before making any decision regarding the child[,]\u201d and argues that the permissive language in N.C. Gen. Stat. \u00a7\u00a7 49-10 and 49-12.1 implies that the court must consider the best interest of the child before entering an order of legitimation.\nN.C. Gen. Stat. \u00a7 50-13.2 provides that \u201c[a]n order for [child] custody must include findings of fact which support the determination of. what is in the best interest of the child.\u201d N.C. Gen. Stat. \u00a7 5043.2(a) (2005). N.C. Gen. Stat. \u00a7 7B-1110 provides that \u201c[a]fter an adjudication that one or more grounds for terminating a parent\u2019s rights exist, the court shall determine whether terminating the parent\u2019s rights is in the juvenile\u2019s best interest.\u201d N.C. Gen. Stat. \u00a7 7B-1110(a) (2005). N.C. Gen. Stat. \u00a7 48-1-101 is a list of definitions applicable to Chapter 48 of the General Statutes which governs adoptions. Although the definitions section does not mention the best interest of the child, specific provisions in Chapter 48 do require that the court consider a child\u2019s best interest when considering adoptive placement for the child. See, e.g., N.C. Gen. Stat. \u00a7 48-2-501(a) (2005) (\u201cWhenever a petition for adoption of a minor is filed, the court shall order a report to the court made to assist the court to determine if the proposed adoption of the minor by the petitioner is in the minor\u2019s best interest.\u201d); N.C. Gen. Stat. \u00a7 48-2-603(a) (2005) (\u201cAt the hearing on, or disposition of, a petition to adopt a minor, the court shall grant the petition upon finding by a preponderance of the evidence that the adoption will serve the best interest of the adoptee . . . .\u201d); N.C. Gen. Stat. \u00a7 48-2-606(a)(7) (2005) (\u201cA decree of adoption must state .. . [t]hat the adoption is in the best interest of the adoptee.\u201d). Contrary to Respondent\u2019s assertion, the above-referenced statutes explicitly, not implicitly, require the court to consider the best interest of the child.\nIn In re Change of Name of Crawford to Crawford Trull, 134 N.C. App. 137, 517 S.E.2d 161 (1999), petitioner alleged that the court committed reversible error in failing to consider the minor child\u2019s best interest in determining whether to allow the child\u2019s mother to change the child\u2019s surname over the biological father\u2019s objections. This Court rejected petitioner\u2019s argument, explaining:\nOur General Assembly . . . has not required a \u201cbest interest[] of the child\u201d inquiry in the context of naming a child under G.S. \u00a7 130A-101(f)(4), nor in the changing of a child\u2019s name under G.S. \u00a7 101-2. While the General Assembly has specifically required such an inquiry in contexts such as termination of parental rights, child custody and placement, parental visitation rights, and even in the context of a change in surname on a birth certificate following legitimation, see N.C. Gen. Stat. \u00a7 130A-118, its failure to require a best interestf] inquiry in connection with G.S. \u00a7 101-2 and G.S. \u00a7 130A-101(f)(4) is clear evidence of its intent that no such inquiry is required in this context.\nId. at 142-43, 517 S.E.2d at 164.\nSimilar to the statutes at issue in Crawford, our General Assembly has not required a \u201cbest interest of the child\u201d inquiry in the context of a legitimation proceeding. While the General Assembly has specifically required such an inquiry under N.C. Gen. Stat. \u00a7\u00a7 50-13.2 and 7B-1110, and Chapter 48, its failure to mandate a best interest inquiry in connection with N.C. Gen. Stat. \u00a7\u00a7 49-10 and 49-12.1 is clear evidence of its intent that no such inquiry is required in this context. See Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991) (\u201cLegislative purpose is first ascertained from the plain words of the statute.\u201d):\nRespondent additionally argues that requiring the husband of the mother of the child be made a party to the legitimation proceeding implies that the court must consider the best interest of the child. Respondent contends that if \u201cthe biological parentage of the child [i]s the only issue to be determined in a legitimation proceeding, and upon proof of biological parentage, [Petitioner] [i]s entitled to summary judgment as a matter of law[,]\u201d then there is no purpose for the joinder of the mother\u2019s husband as a necessary party. We disagree.\nPursuant to Rule 19 of the North Carolina Rules of Civil Procedure, all those with an interest in an action or proceeding must be joined as necessary parties to the action. A necessary party is one \u201cwho ha[s] a claim or material interest in the subject matter of the controversy, [whose] interest will be directly affected by the outcome of the litigation.\u201d Lombroia v. Peek, 107 N.C. App. 745, 750, 421 S.E.2d 784, 787 (1992); N.C. Gen. Stat. \u00a7 1A-1, Rule 19(b) (2005).\nThe husband of the mother of a child born during the parties\u2019 marriage is presumed to be the father of that child and, thus, enjoys all the parental rights and privileges, as well as obligations, to that child. A determination that a petitioner in a legitimation action, and not the husband, is the biological father of the child terminates the husband\u2019s rights to the child, conferring them onto petitioner. N.C. Gen. Stat. \u00a7 49-11. Thus, unless the husband has previously been determined not to be the child\u2019s father, he is a necessary party to the proceeding. Lombroia, 107 N.C. App. at 751, 421 S.E.2d at 787. As \u201ca potentially adverse party in this special proceeding,\u201d Locklear, 314 N.C. at 422, 334 S.E.2d at 52, the husband is permitted to file pleadings and motions, see N.C. Gen. Stat. 1A-1, Rule 7 (2005), obtain discovery, see N.C. Gen. Stat. \u00a7 1A-1, Rule 26 (2005), and present evidence. See N.C. Gen. Stat. \u00a7 8C-1, Rule 101 et seq. (2005). Accordingly, Respondent could have introduced evidence of his paternity and/or rebutted or discredited evidence of paternity presented by Petitioner. Although Respondent in this case could accomplish neither, his presence was not \u201cobviously, utterly immaterial,\u201d as it afforded him an opportunity to defend the presumption that he was the child\u2019s father and discredit Petitioner\u2019s evidence to the contrary.\nRespondent further argues that the requirement that the court appoint a guardian ad litem for the minor child during a legitimation proceeding implies that, similar to a termination of parental rights proceeding, the court must employ a two-step process before entering an order of legitimation: first, the court must determine whether grounds exist that would allow for legitimation, and then the court must determine whether legitimation is in the best interest of the child.\nSection 49-10 specifies the procedures to be followed in a proceeding pursuant to Section 49-12.1, and provides that the child is a necessary party to the legitimation proceeding. Section 49-12.1 states specifically that if the child is a minor, a guardian ad litem must be appointed to represent the child. N.C. Gen. Stat. \u00a7 49-12.1(a). However, regardless of whether Section 49-12.1 required this, appointment of a guardian ad litem for the minor child is mandated by Rule 17 of the'North Carolina Rules of Civil Procedure.\nGuardians ad litem are appointed to stand in place of minor children in all civil actions and proceedings as minors are presumed by law not to have the requisite capacity to handle their own affairs. See In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). The role of the guardian ad litem is to defend on behalf of the minor child, N.C. Gen. Stat. \u00a7 1A-1, Rule 17(b)(2) (2005), and to \u201cprotect the interest of the [minor] defendant at every stage of the proceeding.\u201d Clark, 303 N.C. at 598, 281 S.E.2d at 52 (quotation marks and citation omitted). Thus, contrary to Respondent\u2019s assertion, the appointment of a guardian ad litem does not dictate the form and inquiry of the proceeding; rather, the duties of the guardian ad litem are dictated by the action or proceeding in which the guardian ad litem has been appointed. In the context of a legitimation proceeding, where the inquiry of the court is whether the petitioner is the biological father of the minor child, the guardian ad litem must defend on behalf of the child in a manner that assures that the child\u2019s interest in the determination of his or her biological father is protected.\nRespondent finally asserts that requiring the trial court to consider the best interest of the child is consistent with other statutes regarding the well-being of the child, such as N.C. Gen. Stat. \u00a7\u00a7 48-3-603 and 48-3-601 (2) (b). Respondent correctly states that pursuant to N.C. Gen. Stat. \u00a7 48-3-603, prior to legitimating the child, Petitioner\u2019s consent would not have been required for the child to have been placed for adoption. Additionally, Respondent correctly states that pursuant to N.C. Gen. Stat. \u00a7 48-3-601(2)(b), prior to Petitioner\u2019s legitimating the child, Respondent\u2019s consent would have been required for the child to have been placed for adoption. However, pursuant to N.C. Gen. Stat. \u00a7 48-3-603, Respondent\u2019s consent would not be required after Petitioner\u2019s petition to legitimate the child was granted. N.C. Gen. Stat. \u00a7 48-3-603(a)(2) (2005).\nHaving carefully considered Respondent\u2019s arguments, and not being unsympathetic to his position, we are constrained to hold that the only issue to be decided in a legitimation proceeding pursuant to N.C. Gen. Stat. \u00a7\u00a7 49-10 and 49-12.1 is whether the putative father who has filed a petition to legitimate is the biological father .of the child. Respondent contends that this \u201coversimplified interpretation of N.C. Gen. Stat. \u00a7\u00a7 49-10 and 49-12.1 [could lead to] many absurd results[.]\u201d However, the legitimation of a child is a separate and distinct issue from who shall have custody and control of the child. The concerns raised by Respondent can be, and properly are, addressed in other proceedings, such as custody, adoption, or termination of parental rights, where the best interest of the child is paramount.\nNormally, the factual issue of paternity, when premised on a presumption of legitimacy, should be presented to and resolved by a jury. Locklear, 314 N.C. at 421, 334 S.E.2d at 52. However, summary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [a] party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). \u201cA \u2018genuine issue\u2019 is one that can be maintained by substantial evidence.\u201d Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). On appeal of a trial court\u2019s grant of a motion for summary judgment, we consider whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. Evidence presented by the parties is viewed in the light most favorable to the non-movant. Id.\nIn this case, DNA tests indicated a 99.99 percent probability that Petitioner is the biological father of the child. Furthermore, Respondent offered no evidence to the contrary, and admitted that he is not the biological father of the child. Petitioner, having provided conclusive evidence that he is the child\u2019s biological father, established that there was no remaining issue of fact to be determined in the legitimation proceeding. Therefore, the trial court did not err in entering summary judgment in Petitioner\u2019s favor.\nAFFIRMED.\nChief Judge MARTIN and Judge McGEE concur.\n. \u201cThe Rules of Civil Procedure and the provisions of this Chapter on civil procedure are applicable to special proceedings, except as otherwise provided.\u201d N.C. Gen. Stat. \u00a7 1-393 (2005).\n. For example, Respondent poses a hypothetical scenario where a petitioner is a convicted murderer who has never contributed any support to the minor child but who presents genetic testing results that show a 99.99 percent probability that he is the child\u2019s biological father, and all of the parties to the proceeding acknowledge that he is the biological father of the child. Respondent argues that if the convicted murderer were entitled to summary judgment granting his petition to legitimate, \u201c[s]urely, that result is not what our legislature intended[.]\u201d\n. Although Respondent additionally argues that the Clerk erred in ordering legitimation upon Petitioner\u2019s Petition to Legitimate, for the reasons stated above, we conclude that the Clerk did not err in entering the 18 August 2005 Order to Legitimate.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "James, McElroy & Diehl, P.A., by Jonathan D. Feit and Sarah M. Brady, for Petitioner-Appellee.",
      "Todd Cline, P.A., by Todd W. Cline, for Respondent-Appellee.",
      "Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, and Sandlin & Davidian, PA, by Deborah Sandlin, for Respondent-Appellant.",
      "No brief filed for Guardian ad Litem for the minor child."
    ],
    "corrections": "",
    "head_matter": "IN RE: MICHAEL G. PAPATHANASSIOU\nNo. COA08-95\n(Filed 3 February 2009)\nPaternity\u2014 legitimation proceeding \u2014 summary judgment\nThe trial court did not err in a legitimation proceeding by granting summary judgment in favor of petitioner because: (1) our General Assembly has not required a best interest of the child inquiry in the context of a legitimation proceeding; (2) DNA tests indicated a 99.99 percent probability that petitioner is the biological father of the child; (3) respondent, the former husband of the mother of the child, offered no evidence to the contrary, and admitted that he is not the biological father of the child; (4) although the husband of the mother of a child born during the parties\u2019 marriage is presumed to be the father of that child, a determination that a petitioner in a legitimation action, and not the husband, is the biological father of the child terminates the husband\u2019s rights to the child; and (5) the only issue to be decided in a legitimation proceeding under N.C.G.S. \u00a7\u00a7 49-10 and 49-12.1 is whether the putative father who has filed a petition to legitimate is the biological father of the child.\nAppeal by Respondent Andrew Papathanassiou from orders entered 18 August 2005 by the Honorable Martha H. Curran, Clerk of Mecklenburg County Superior Court, and 14 February 2007 by the Honorable Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 September 2008.\nJames, McElroy & Diehl, P.A., by Jonathan D. Feit and Sarah M. Brady, for Petitioner-Appellee.\nTodd Cline, P.A., by Todd W. Cline, for Respondent-Appellee.\nCheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, and Sandlin & Davidian, PA, by Deborah Sandlin, for Respondent-Appellant.\nNo brief filed for Guardian ad Litem for the minor child."
  },
  "file_name": "0278-01",
  "first_page_order": 310,
  "last_page_order": 319
}
