#### DURHAM COUNTY and ELLEN MARIE CAPPARELLA v. HAROLD STEVE RIGGSBEE

No. 8114DC704

(Filed 6 April 1982)

Bastards § 9— inability to relitigate paternity

The trial court lacked authority to attempt to relitigate an issue of paternity since the issue had been finally determined more than three years earlier.

APPEAL by plaintiffs from Galloway, Judge. Order entered 23 April 1981 in District Court, DURHAM County. Heard in the Court of Appeals 8 March 1982.

Durham County Attorney’s Office, by Assistant County Attorneys Thomas Russell Odom and S. C. Kitchen, for plaintiff appellants.

Clayton and Myrick, by Ronald G. Coulter, for defendant ap-pellee.

VAUGHN, Judge.

On 13 October 1976, defendant was ordered to pay plaintiff Capparella, defendant’s former wife, $40.00 each week for the support of a minor child which the court found to have been born to the marriage. The issue of paternity was raised and fully litigated in that proceeding. Defendant did not appeal and complied with the order through January 1978.

Plaintiff Capparella began receiving public assistance in the form of AFDC through the Durham County Department of Social Services and that resulted in the assignment of her right to obtain child support under the provisions of G.S. 110-137. In February 1981, plaintiff County filed a motion in the cause seeking wage garnishment pursuant to G.S. 110-136 to enforce the child support order.

*745Defendant then filed a “Motion for Discovery and Stay of Proceedings.” The motion was filed under General Statute Rule 35(a). He alleged that he had learned of “a different and reportedly more reliable method for testing a child’s paternity. . . .”

On 23 April 1981, Judge Galloway entered an order requiring the mother, father and their child to submit themselves to a tissue typing test, and ordered that the garnishment proceeding be stayed pending the results of the tests.

The judge’s lack of authority to attempt to relitigate an issue that had been finally determined more than four years earlier is so obvious that no discussion of the question need be made.

The order is void, and the same is hereby vacated.

Vacated.

Chief Judge MORRIS and Judge HEDRICK concur.