Opinion
No. COA12–1222.
2013-06-18
Gail R. GUNTER, Plaintiff, v. David B. GUNTER, Defendant.
Constance M. Ludwig for plaintiff-appellant. Darrell K. Brown, P. A., by Darrell K. Brown, for defendant-appellee.
Appeal by plaintiff from order entered 9 July 2, 012 by Judge Timothy I. Finan in Wayne County District Court. Heard in the Court of Appeals 25 March 2013. Constance M. Ludwig for plaintiff-appellant. Darrell K. Brown, P. A., by Darrell K. Brown, for defendant-appellee.
HUNTER, Robert C., Judge.
Plaintiff Gail R. Gunter appeals from the trial court's order granting defendant David B. Gunter's motion to dismiss plaintiff's claim for child support. Plaintiff contends the trial court erred in concluding that defendant could not be ordered to pay child support because defendant did not enter into a written agreement voluntarily assuming the obligation to support plaintiff's child. After careful review, we affirm the trial court's order.
Background
Plaintiff and defendant were married on 15 January 1995. The minor child, B.G., was born during the marriage in May 1995. On 20 February 2012, plaintiff filed a complaint seeking divorce from bed and board, equitable distribution, child custody, child support, post-separation support, and alimony.
Defendant moved to dismiss plaintiff's claims alleging, inter alia, that although B.G. was born during the parties' marriage he was not the biological father of B.G. and he had not adopted the child. Defendant acknowledged he was listed as B.G.'s father on the child's birth certificate but asserted that he had no choice in the matter as N.C. Gen.Stat. § 130A–101(e) required that his name be listed on the birth certificate.
In an order entered 9 July 2012, the trial court made findings of fact including: (1) that the parties stipulated that defendant is not the biological father of B.G. and (2) that there was no written agreement that provides that defendant had voluntarily assumed a duty to support B.G. The trial court concluded that defendant was not financially responsible for the support of B.G. and dismissed plaintiff's claim for child support. In the same order, the trial court dismissed plaintiff's claim for child custody as moot, denied defendant's motion for sanctions, and retained jurisdiction over defendant's motion for attorney's fees for a later ruling. Plaintiff appeals from the denial of her claim for child support.
Discussion
Plaintiff contends the trial court erred in concluding that, pursuant to N.C. Gen.Stat. § 50–13.4(b), defendant was not liable for the financial support of B.G. in the absence of a written agreement in which defendant voluntarily agreed to support the child. We disagree.
Initially, we note that although the trial court's order is interlocutory, this Court has recognized that an order affecting the right of a party to receive child support affects a substantial right and is immediately appealable. Appert v. Appert, 80 N.C.App. 27, 33, 341 S.E.2d 342, 345 (1986). Furthermore, although the trial court granted defendant's Rule 12(b)(6) motion to dismiss, because the trial court considered matters outside of the pleadings, we review the trial court's ruling as the grant of a motion for summary judgment. See Stanback v. Stanback, 297 N.C. 181, 205, 254 S.E.2d 611, 627 (1979) (“A Rule 12(b)(6) motion to dismiss for failure to state a claim is indeed converted to a Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court.”), disapproved of on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
We review de novo the trial court's ruling on a motion for summary judgment. In re Will of Jones, 362 N.C. 569, 573, 669 S .E.2d 572, 576 (2008). Summary judgment “is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law .’ “ Id. (quoting Forbis v. Neal, 361 N.C. 519, 523–24, 649 S.E.2d 382, 385 (2007)). “All facts asserted by the [nonmoving] party are taken as true ... and their inferences must be viewed in the light most favorable to that party[.]” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (internal citations omitted).
In an action for support of a minor child, N.C. Gen.Stat. § 50–13.4(b) (2011) provides that, absent circumstances that otherwise warrant, “the father and mother” shall be primarily liable for the support of the child and that any person “standing in loco parentis shall be secondarily liable for such support.” The statute further provides, however, that a trial court “ may not order support to be paid by a person who is not the child's parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person ... has voluntarily assumed the obligation of support in writing.” Id. (emphasis added).
Citing section 50–13.4(b), the trial court noted the parties' stipulation that defendant is not the biological father of B.G., that the parties provided no evidence of a written agreement by which defendant had voluntarily assumed the financial support of B.G ., and concluded that such a writing was the only basis by which defendant could be held liable for support of the child. The trial court cited several opinions by this Court in support of its ruling.
In Duffey v. Duffey, 113 N.C.App. 382, 388, 438 S.E.2d 445, 449 (1994), we concluded that a stepfather who had voluntarily assumed an obligation of support for his stepchildren during the marriage, and who had signed a written agreement to support his stepchildren after the termination of the marriage, could not be held liable for that support in the absence of a determination of the natural parent's inability to meet the needs of the children. “N.C.G.S. § 50–13.4(b) clearly states that even if an individual assumes the status of in loco parentis, he shall still be secondarily liable to the child's natural parents for the support of that child.” Id. at 387, 438 S.E.2d at 448. Accordingly, we remanded the issue to the trial court for a determination of whether the natural parents could support the children's needs. Id. at 388, 438 S.E.2d at 449.
Similarly, in Moyer v. Moyer, 122 N.C.App. 723, 726, 471 S.E .2d 676, 678,disc, review denied,344 N.C. 631, 447 S.E.2d 41 (1996), we held that a stepfather was not required to provide child support for his stepchild despite the facts that the stepfather was a person standing in loco parentis to his stepchild and that he had entered into a handwritten agreement to support the child on a temporary basis. The basis of our conclusion was two-fold. First, we noted that, pursuant to section 50–13.4(b) and our holding in Duffey, the stepfather standing in loco parentis to the child was at most secondarily liable for the support of his stepchild. Id. at 725,471 S.E.2d at 678. Furthermore, we concluded that because the stepfather's written agreement to support the stepchild was not executed with the formalities of a separation agreement, which were present in Duffey, the writing was insufficient to confer an obligation of support upon the stepfather. Id. at 726,471 S.E.2d at 678. Thus, we held that even if the child's biological parents were found to be unable to meet the needs of the child, the stepfather could not be ordered to pay child support. Id.
Plaintiff contends that although defendant is not the biological father of B.G., defendant is the presumed and legal father of the child by virtue of the facts that B.G. was born during the parties' marriage, that defendant knew he was not the biological father of B.G. when the child was born, and because defendant is listed as B.G .'s father on B.G.'s birth certificate. Consequently, she contends it is not necessary to have a written agreement by which defendant agreed to financially support B.G. We cannot agree.
Similar facts were presented in Duffey, 113 N.C.App. at 383, 438 S.E.2d at 446, but did not obviate the need for a writing to confer the obligation of child support upon the stepfather. In Duffey, one of the two stepchildren for whom support was sought was born during the parties' marriage and the stepfather was listed on that child's birth certificate as its father. Id. The stepfather would have known the stepchild was not his own as the child was conceived while he was away from the mother on military duty but was born upon his return. See id. Nevertheless, we found that a writing was required by section 50–13.4(b) to hold the stepfather who stood in loco parentis to the child to be secondarily liable for child support. Id. at 385, 438 S.E.2d at 447–48.
Plaintiff also contends that defendant should be held liable for the support of B.G. because of the long-recognized principle of the marital presumption—that a child born during a marriage is presumed to be a product of the marriage. See Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968). Plaintiff fails to acknowledge however, that the marital presumption “can be overcome by clear and convincing evidence.” N.C. Gen.Stat. § 49–12.1(b) (2011); see Wright v. Wright, 281 N.C. 159, 172, 188 S.E.2d 317, 325–26 (1972) (“Although we continue to recognize its primary importance in preserving the status of legitimacy of children born in wedlock, this presumption must give way before dependable evidence to the contrary.”). Here, there can be no presumption that defendant is the father of B.G. in light of the parties' stipulation that defendant is not the biological father of the child.
Plaintiff also argues that B.G.'s birth certificate judicially establishes defendant as B.G.'s father. We disagree.
Plaintiff's reliance on In re J.K.C., ––– N.C.App. ––––, 721 S.E.2d 264 (2012), in support of her argument is misplaced. In In re J.K.C., we concluded that in the context of a termination of parental rights proceeding, where the petitioner must prove the respondent has not established paternity of a child, “the practical effect of a birth certificate bearing the respondent's name as father of the child is the creation of a rebuttable presumption that the respondent has in fact established paternity of the child either judicially or by affidavit....” Id. at ––––, 721 S.E.2d at 274. Significantly, because the mother and the respondent in In re J.K.C. were never married, the birth certificates at issue had to be amended to add the respondent's name as the father of the children, which created “a rebuttable presumption that the respondent has taken the legal steps necessary to establish paternity [.]” Id. at ––––, 721 S.E.2d at 273–74. No such amendment to B.G.'s birth certificate is alleged here. Rather, because the parties were married at the time of B.G.'s birth, N.C. Gen.Stat. § 130A–101(e) required defendant's name to be listed on B .G.'s birth certificate as the child's father. N.C. Gen.Stat. § 130A–101(e) (2011) (providing that if the mother was married at the time of the child's birth her husband's name “shall be entered on the certificate as the father of the child” unless paternity by another man has been judicially determined or the mother, husband, and putative father submit affidavits of paternity averring that the husband is not the father of the child). In light of our holding in Duffey, the mere fact that defendant was listed as the father on B.G.'s birth certificate cannot obviate the need for the writing required by section 50–13.4(b).
In her brief on appeal, plaintiff alleges not only that defendant's name was listed on B.G.'s birth certificate but that defendant signed B.G.'s birth certificate as B.G.'s father. The record does not contain a copy of B.G.'s birth certificate or any reference to defendant's signature on the birth certificate. As our review is limited to the record on appeal, N.C. R.App. P. 9(a) (2012), we do not consider plaintiff's allegation.
Lastly, plaintiff contends that defendant should be estopped from denying his obligation to support B.G. after defendant: married plaintiff with the knowledge that she was pregnant with another man's child; stood in loco parentis to B.G. for 17 years; and did not contest his role as a parent of B.G. until plaintiff's support action was commenced. However, as there is no indication in the record that plaintiff raised the issue of estoppel before the trial court we do not address this argument. See Allred v. Tucci, 85 N.C.App. 138, 144, 354 S.E.2d 291, 295–96,disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987) (concluding the plaintiff was precluded from arguing on appeal that the defendant should be estopped from attacking the validity of a divorce judgment where the record did not establish that the plaintiff had raised the issue of estoppel before the trial court).
As we are bound by our decisions in Duffey and Moyer, we conclude that the trial court did not err in granting defendant's motion to dismiss plaintiff's claim for child support. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). The trial court's order is affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge STEPHENS concur.