{ "id": 8549999, "name": "KENNETH B. WRIGHT, BTH/GAL, NANCY WRIGHT v. WENDELL T. GANN and CHARLES EDWIN WRIGHT", "name_abbreviation": "Wright v. Gann", "decision_date": "1975-09-17", "docket_number": "No. 7517DC353", "first_page": "45", "last_page": "49", "citations": [ { "type": "official", "cite": "27 N.C. App. 45" } ], "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": "13 S.E. 2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "219 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622038 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/219/0217-01" ] }, { "cite": "188 S.E. 2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574448 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0159-01" ] }, { "cite": "174 S.E. 2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 N.C. App. 583", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553965 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0583-01" ] }, { "cite": "159 S.E. 2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574914 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0189-01" ] }, { "cite": "17 N.W. 2d 546", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1945, "opinion_index": 0 }, { "cite": "73 N.D. 582", "category": "reporters:state", "reporter": "N.D.", "case_ids": [ 2275372 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nd/73/0582-01" ] }, { "cite": "85 N.E. 2d 270", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "119 Ind. App. 232", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1680842 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/ind-app/119/0232-01" ] }, { "cite": "232 A. 2d 401", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1967, "opinion_index": 0 }, { "cite": "50 N.J. 93", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1939546 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nj/50/0093-01" ] }, { "cite": "291 N.Y.S. 2d 135", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1968, "opinion_index": 0 }, { "cite": "57 Misc. 2d 4", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1196497 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/misc2d/57/0004-01" ] }, { "cite": "143 S.E. 216", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "opinion_index": 0 }, { "cite": "195 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631104 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/nc/195/0628-01" ] }, { "cite": "141 S.E. 2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571578 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0144-01" ] } ], "analysis": { "cardinality": 423, "char_count": 9135, "ocr_confidence": 0.602, "pagerank": { "raw": 6.047763239486531e-07, "percentile": 0.9549097263971761 }, "sha256": "cb50baf9132026716e127b3f9acb5684cdd7e1174b907aaca9d1419b24164343", "simhash": "1:17ecca654e5de8ef", "word_count": 1520 }, "last_updated": "2023-07-14T22:44:36.927205+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Parker concur." ], "parties": [ "KENNETH B. WRIGHT, BTH/GAL, NANCY WRIGHT v. WENDELL T. GANN and CHARLES EDWIN WRIGHT" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant contends that plaintiff\u2019s action cannot be maintained under G.S. 49-14 because the statute applies only to children born to single women; He argues that the statute is not applicable because Mrs. Wright was married at the time of conception and birth of the plaintiff, and therefore plaintiff was not born \u201cout of wedlock\u201d within the meaning of the statute.\nIf the defendant\u2019s construction of the statute is adopted, an illegitimate child of a married woman would not be entitled to support because the child would be precluded from asserting his right to support against the father and the law imposes no duty to support the illegitimate child on the husband. This position is untenable.\nThe father of an illegitimate child has a legal duty to support his child. G.S. 49-2. Where a married woman has an illegitimate child, the father has the duty to support his child and not the woman\u2019s husband. State v. Wade, 264 N.C. 144, 141 S.E. 2d 34 (1965) ; State v. Ray, 195 N.C. 628, 143 S.E. 216 (1928).\nNorth Carolina does not impose upon a husband the burden of supporting another man\u2019s offspring. The legislature, by enacting G.S. 49-14, intended to establish a means of support for illegitimate children. Statutory construction should seek to accomplish that purpose and not frustrate legislative intent. We interpret the phrase \u201cout of wedlock\u201d in the statute as referring to the status of the child and not to the status of the mother.\nOther jurisdictions with similar statutes apply their statutes to married women. See Martin v. Lane, 57 Misc. 2d 4, 291 N.Y.S. 2d 135 (Duchess County Family Ct. 1968) ; B. v. O., 50 N.J. 93, 232 A. 2d 401 (1967) ; Pursley v. Hisch, 119 Ind. App. 232, 85 N.E. 2d 270 (1948); State v. Coliton, 73 N.D. 582, 17 N.W. 2d 546 (1945).\nG.S. 49-14 is applicable to all illegitimate children and therefore does not preclude an illegitimate child of a married woman from instituting suit for support.\nDefendant next contends that the trial court erred in allowing the testimony as to the results of the blood test. Defendant\u2019s contention is without merit. Children born in wedlock are presumed legitimate; however, the presumption is rebuttable. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E. 2d 562 (1968) ; State v. Hickman, 8 N.C. App. 583, 174 S.E. 2d 609 (1970). Evidence of the results of blood grouping tests are admissible to rebut this presumption. Wright v. Wright, 281 N.C. 159, 188 S.E. 2d 317 (1972) ; G.S. 8-50.1.\nTestimony by Nancy Wright that she obtained a divorce from Charles Wright on grounds of separation, and records of that divorce action, were introduced into evidence. Defendant assigns error to the admission of this evidence as being evidence of nonaccess by the wife. He correctly argues that any evidence of nonaccess must come from third parties.\nEvidence of nonaccess to the wife is admissible to rebut the presumption of legitimacy of children born during marriage if the evidence is from third parties. The husband and the wife may not testify to nonaccess. Ray v. Ray, 219 N.C. 217, 13 S.E. 2d 224 (1941) ; State v. Wade, supra; Eubanks v. Eubanks, supra.\nThe trial court should not have admitted any part of Mrs. Wright\u2019s evidence tending to show nonaccess, but we are unable to see any prejudice to defendant, Gann. The error was harmless beyond a reasonable doubt.\nPlaintiff did not attempt to prove Wright was not the father by proof of nonaccess, but rather by the blood tests. Results of the blood tests furnished strong evidence to rebut the presumption of legitimacy of a child born during coverture. Defendant\u2019s own testimony established that he was having sexual relations with Mrs. Wright. Moreover, the court specifically charged the jury that the judgment in the divorce action could not be viewed as evidence of nonaccess. We fail to see how the evidence complained of could have affected the outcome of the trial.\nFinally, defendant assigns error to the trial judge\u2019s instructions to the jury regarding the evidentiary value of the blood test. Defendant argues that the court, in its charge to the jury, expressed the view that the blood test evidence conclusively established that Charles Wright could not have been plaintiff\u2019s father. We do not agree.\nWhen the charge to the jury is considered contextually, it is evident that the trial court directed that the blood tests were to be considered with all the other evidence. The trial judge explained the presumption of legitimacy pertaining to all children born in wedlock. He then explained that the presumption was not conclusive and could be rebutted. Finally, the trial judge stated that it was necessary for the jury to find that the blood test proved beyond a reasonable doubt that Charles Wright was not the father of the plaintiff in order to rebut the presumption of legitimacy.\nDefendant has additional assignments of error which we have considered and find to be without merit.\nWe find no prejudicial error in the trial.\nNo error.\nChief Judge Brock and Judge Parker concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "\u25a0 Gwyn, Gwyn and Morgan, by Allen H. Gwyn, for plaintiff appellee.", "Bethea, Robinson, Moore and Sands, by Norwood E. Robinson,' and Price, Osborne and Johnson, by D. Floyd Osborne, Jr., for defendant appellant." ], "corrections": "", "head_matter": "KENNETH B. WRIGHT, BTH/GAL, NANCY WRIGHT v. WENDELL T. GANN and CHARLES EDWIN WRIGHT\nNo. 7517DC353\n(Filed 17 September 1975)\n1. Bastards \u00a7 10; Parent and Child \u00a7 7\u2014 illegitimate child \u2014 married woman \u2014 duty to support\nWhen a married woman has an illegitimate child, the father of the child, not the woman\u2019s husband, has the duty to support the child.\n2. Bastards \u00a7 10\u2014 action to establish paternity \u2014 child born to married woman\nIn the statute establishing a civil action to determine the paternity of an illegitimate child, G.S. 49-14, the phrase \u201cout of wedlock\u201d refers to the status of the child and not to the status of the mother; therefore, the statute is applicable to a child born to a married woman as well as to a child born to a single woman.\n3. Bastards \u00a7 10; Evidence \u00a7 51; Parent and Child \u00a7 1\u2014 paternity action \u2014 married woman \u2014 blood grouping tests\nIn an action to establish paternity, the results of blood grouping tests were admissible to rebut the presumption of legitimacy of a child born while the mother was married.\n4. Bastards \u00a7 10; Parent and Child \u00a7 1\u2014 paternity \u2014 evidence of nonaccess\nEvidence of nonaccess to the wife is admissible to rebut the presumption of legitimacy of children born during marriage if the evidence is from third parties, but the husband and wife may not testify to nonaccess.\n5. Bastards \u00a7 10; Parent and Child \u00a7 1 \u2014paternity action \u2014 divorce based on separation \u2014 wife\u2019s testimony \u2014 harmless error\nIn an action to establish the paternity of a child born while the mother was married, the trial court erred in permitting the mother to testify that she obtained a divorce from her husband on the ground of separation because this constituted evidence of nonaccess by the wife; however, such error was harmless beyond a reasonable doubt since plaintiff did not attempt to prove the husband was not the father by proof of nonaccess but by blood tests, defendant\u2019s own testimony revealed he had sexual relations with the mother, and the court charged the jury that the judgment in the divorce action could not be viewed as evidence of nonaccess.\n6. Bastards \u00a7 10\u2014 paternity action \u2014 blood tests \u2014 instructions\nIn an action to establish the paternity of a child born during marriage of the mother, the trial court did not express an opinion in its instructions that blood test evidence conclusively established that the husband of the child\u2019s mother could not have been the child\u2019s father.\nAppeal by defendant from Clark, Judge. Judgment entered 16 January 1975 in District Court, Rockingham County. Heard in the Court of Appeals 27 August 1975.\nAction was instituted by plaintiff through his next friend, and mother, Nancy Wright, under G.S. 49-14, to establish paternity and to obtain support. Plaintiff alleged that the defendant Gann was his father. Defendant denied paternity and alleged that the plaintiff was born while Nancy Wright was married to Charles Edwin Wright and moved that Wright be joined as defendant. His motion was granted.\nDr. H. C. Lennon appeared as a witness for plaintiff - and testified that he had administered blood grouping tests to plaintiff, to defendants and to plaintiff\u2019s mother Nancy Wright, The blood tests established that defendant Wright could, not have been plaintiff\u2019s father. The blood tests did not establish that defendant Gann could not be plaintiff\u2019s father. ' :\nPlaintiff presented additional evidence showing that the mother, Nancy Wright, had been separated from her husband, and that she had sexual relations with the defendant Gann during this period. The defendant admitted having sexual relations with Nancy Wright but denied having sexual relations during the period plaintiff was conceived.\nThe jury found the defendant Gann to be the plaintiff\u2019s father and the court entered judgment holding the defendant Wendell T. Gann liable for child support.\nThe defendant appealed to this Court.\n\u25a0 Gwyn, Gwyn and Morgan, by Allen H. Gwyn, for plaintiff appellee.\nBethea, Robinson, Moore and Sands, by Norwood E. Robinson,' and Price, Osborne and Johnson, by D. Floyd Osborne, Jr., for defendant appellant." }, "file_name": "0045-01", "first_page_order": 73, "last_page_order": 77 }