Opinion
No. 7120DC64
Filed 28 April 1971
Divorce and Alimony 22; Evidence 51; Parent and Child 1 — blood-grouping test — child born before parties separated In the wife's action for alimony without divorce and custody and support of a minor child, the trial court erred in allowing the husband's motion under G.S. 8-50.1 for a blood-grouping test on the question of paternity of a child born almost three years before the parties separated, since the blood-grouping test results cannot be used to establish nonpaternity if there was access, and the results would be superfluous if nonaccess is established.
APPEAL by plaintiff from Webb, District Court Judge, 9 June 1970 Session, UNION County District Court.
Clark, Huffman and Griffin, by Robert L. Huffman for plaintiff appellant.
Thomas and Harrington by Larry E. Harrington for defendant appellee.
Judge BROCK dissenting.
Plaintiff instituted this action for alimony without divorce, maintenance for herself, and for custody and support for the minor child of the parties.
Numerous motions have been filed by both parties, but the crux of the plaintiff's appeal to this Court is the District Court Judge's order allowing defendant's motion under G.S. 8-50.1 for a blood-grouping test. The parties were married in 1948 and lived together as man and wife until their separation which occurred on 13 November 1969. The child whose paternity defendant denies was born on 5 December 1966 and was almost three years of age at the time of the separation.
G.S. 8-50.1 has been in its present form since 1965 and the second paragraph thereof reads as follows:
"In the trial of any civil action, the court before whom the matter may be brought, upon motion of either party, shall direct and order that the defendant, the plaintiff, the mother and the child shall submit to a blood grouping test; provided, that the court, in its discretion, may require the person requesting the blood grouping test to pay the cost thereof. The results of such blood grouping tests shall be admitted in evidence when offered by a duly licensed practicing physician or other duly qualified person."
Upon its face this statute seems broad in its application, and is undoubtedly the purported authority under which Judge Webb entered his order requiring plaintiff to present herself and the minor child at the Diagnostic Laboratories and submit to a blood-grouping test. However, in 1968 our Supreme Court held:
"When a child is born in wedlock, the law presumes it to legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife. [citations]. To render the child of a married woman illegitimate, unless impotency be established, proof of the nonaccess of her husband is required, and neither the wife nor the husband is a competent witness to prove such nonaccess. [citations]. `The evidence of nonaccess, if there be such, must come from third persons.' [citation]. If there was access, there is a conclusive presumption that the child was lawfully begotten in wedlock. [citations]." (Emphasis added). Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562, (1968).
Under the clear holding of Eubanks the results of a blood-grouping test cannot be used to establish nonpaternity if there was access; and if nonaccess is established the results of the blood-grouping test would be superfluous. Therefore, since the results of the blood-grouping test are incompetent or immaterial evidence, the order requiring the test was error.
Reversed.
Judge VAUGHN concurs.
Judge BROCK dissents.