Opinion
No. COA02-1298
Filed 05 August 2003 This case not for publication
Appeal by plaintiff from an order entered 2 April 2002 by Judge Nathan Hunt Gwyn, III, in Union County District Court. Heard in the Court of Appeals 4 June 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for plaintiff-appellant. Browne, Flebotte, Wilson Horne, PLLC, by Holly Lorraine Saunders, for defendant-appellee.
Union County No. 94 CVD 1525.
On 28 October 1994, Shayla Scott Blakeney ("Blakeney") executed an affirmation of paternity stating that defendant was the biological father of a minor child born to her on 2 August 1994.(R4) Defendant executed an acknowledgment of paternity on 15 November 1994.(R5) On the same date, Blakeney and defendant executed a voluntary support agreement under which defendant agreed to provide health insurance for the minor child. On 18 November 1994, the trial court entered an order of paternity pursuant to N.C. Gen. Stat. § 110-132(b) (2001) based upon defendant's acknowledgment of paternity and Blakeney's affirmation of paternity and approved the voluntary support agreement.(R2-3,6)
On 5 December 2001, defendant filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2001) requesting relief from the paternity order and the voluntary support agreement and removal of his name from the child's birth certificate.(R9) Defendant alleged that he, Blakeney and the minor child had participated in DNA blood testing on 30 March 2001 and that the test excluded defendant from being the biological father of the child.
At the hearing on his Rule 60(b) motion, defendant testified that he became aware of information that another individual with whom Blakeney had been sexually involved was the biological father of the minor child.(T13,27) Defendant also testified that Blakeney agreed to participate in DNA testing, which showed a zero percent (0%) probability that he was the child's biological father.(T35-36)
Plaintiff objected to the admission of the DNA test results prior to defendant's presentation of evidence on the basis of the lack of proper foundation.(T4-5) Plaintiff again objected to the admission of the DNA test results at the time of defendant's testimony.(T19) The trial court admitted the DNA test results over plaintiff's objection and granted defendant's Rule 60(b)(6) motion, relieving defendant from the voluntary support agreement and order of paternity dated 21 November 1994 and directing defendant's name be removed from the child's birth certificate.(R22)
I.
In the first assignment of error, plaintiff argues the trial court erred in failing to deny defendant's Rule 60(b) motion to set aside the underlying paternity order and voluntary support agreement naming defendant as the biological father of Blakeney's minor child because it was not timely brought in accordance with Rule 60(b).
Rule 60(b) provides:
[T]he court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . (6) Any other reason justifying relief from the operation of the judgment.
Under Rule 60(b)(1), (2) and (3), the motion must be made not more than one year after the judgment or order was entered. Motions made for other reasons pursuant to Rule 60(b) must be made "within a reasonable time."
The purpose of Rule 60(b) is to strike a balance between the conflicting principles of finality and relief from unjust judgments. Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662 (1991). To achieve this purpose, Rule 60(b) is construed liberally. Id. Rule 60(b) functions as the trial court's "grand reservoir of equitable power," Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7 (1985), and gives the court power to vacate judgments whenever appropriate to accomplish justice, Flinn v. Laughinghouse, 68 N.C. App. 476, 315 S.E.2d 72, appeal dismissed and cert. denied, 311 N.C. 755, 321 S.E.2d 132 (1984).
This Court is limited to reviewing the trial court's granting of a Rule 60(b) motion for abuse of discretion. The trial court's findings of fact are conclusive on appeal if supported by any competent evidence. Norton v. Sawyer, 30 N.C. App. 420, 227 S.E.2d 148 (1976). Where a motion does not contain factual allegations corresponding to the specific situations set out in Rule 60(b)(1)-(5), the motion may be brought under Rule 60(b)(6). Oxford Plastics, supra.
The facts at issue here do not fit under one of the specific situations set out in Rule 60(b)(1)-(5). A motion made under Rule 60(b)(2) must be based on "evidence of facts existing at the time of the [judgment]. . . ." Cole v. Cole, 90 N.C. App. 724, 728, 370 S.E.2d 272, 274 (1988) (citation omitted). Defendant's motion asserts the DNA test results excluding defendant as the father of the minor child as the grounds for relief from the paternity order and voluntary support agreement.(R9) Defendant did not have reason to seek a paternity test until he began hearing rumors of Blakeney's sexual relationships at the time of conception and the child's features began developing. To this end, the trial court made the following findings of fact:
4. That about April 2001[,] the child's physical features had developed in such a manner that the Defendant question whether the minor child was in fact his.
. . .
6. Prior to April 2001[,] the mother had not revealed to the Defendant that she had had sex with another man who could have been the father of the minor child. That after the DNA paternity testing[,] the mother, Shayla Scott Blakeney, confided in the Defendant that she had sex with another person about the time she conceived the minor child.
(R21-22) These findings are supported by competent evidence in the record, primarily defendant's testimony at the hearing, and are binding on this Court. As the findings demonstrate, the facts leading defendant to seek a paternity test were not in existence at the time he executed the paternity order. Thus, the information regarding the child's paternity was not newly discovered evidence and could not have supported a motion under Rule 60(b)(2).
Defendant made one allegation as to his reliance upon paternity information provided him by Blakeney, but there are no allegations regarding potential fraud as contemplated by Rule 60(b)(3). Even if there are adequate allegations as to Blakeney's misrepresentations, the trial court may grant a Rule 60(b) motion on other grounds also alleged in the motion. See Freeman v. Freeman, 573 S.E.2d 708 (2002) (holding that where the defendant's motion contained allegations regarding misrepresentation as well as improper service of process, the trial court properly granted the motion under Rule 60(b)(4) for void judgments on the service or process grounds even though the motion was not brought within a year).
This is not a case of inadvertent mistake by defendant as to the child's paternity under Rule 60(b)(1). Nor do the facts here fit the situations in Rule 60(b)(4) and (5) for void or discharged judgments.
Because there are facts in this case which do not correspond to the specific situations in Rule 60(b)(1)-(5), defendant properly brought his motion under Rule 60(b)(6). We hold the defendant made his Rule 60(b) motion within a reasonable time, and the trial court did not err in considering defendant's motion.
II.
Plaintiff further contends the trial court erred in admitting into evidence an alleged report of DNA testing because the document was inadmissible hearsay, no proper foundation was laid for its admission and it was not properly authenticated. Plaintiff specifically argues defendant failed to comply with N.C. Gen. Stat. § 8-50.1(b1) (2001) or the requirements established by this Court in Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784 (1992).
N.C. Gen. Stat. § 8-50.1(b1) provides a relaxed evidentiary standard for blood tests performed in accordance with the statute. If the blood test is not ordered by the trial court upon motion by a party, the standard in N.C. Gen. Stat. § 8-50.1(b1) will not apply and the party seeking to admit the test must present independent evidence of the chain of custody. Catawba Co. ex rel. Kenworthy v. Khatod, 125 N.C. App. 131, 479 S.E.2d 270 (1997). In this case, the trial court did not order Blakeney and defendant to submit to DNA testing; therefore, N.C. Gen. Stat. § 8-50.1(b1) does not apply and we look to decisions of our courts to determine whether the DNA test results were properly admitted.
Under Lombroia, to establish the relevancy of blood test results, a party must "`lay a foundation . . . by way of expert testimony explaining the way the test is conducted, attesting its scientific reliability, and vouching for its correct administration in [this] particular case.'" Lombroia, 107 N.C. App. at 749, 421 S.E.2d at ___ (citations omitted). "Further, `the substance analyzed must be accurately identified . . . [by proving] a chain of custody to insure that the substance came from the source claimed and that its condition was unchanged.'" Id. (citations omitted). If the party fails to offer witness testimony "sufficient to establish a likelihood that the blood tested was in fact drawn from [the party]," the test results evidence is improperly admitted. Id. (citation omitted).
In the instant case, defendant presented no expert witness testimony explaining the manner in which the blood test was conducted. Nor was there any witness testimony regarding the scientific reliability of the test or whether it was properly administered. Further, the defendant did not present evidence detailing the chain of custody of the blood samples to establish the likelihood that the blood was drawn from him. Since N.C. Gen. Stat. § 8-50.1(b1) is not applicable and defendant failed to comply with the Lombroia requirements, we hold the trial court erred in admitting the DNA test results evidence and grant a new trial on this basis.
III.
Finally, plaintiff argues the trial court abused its discretion in granting defendant's Rule 60(b) motion on the ground that the findings of fact and conclusions of law do not support its order. Plaintiff particularly argues that because the paternity test results were incompetent evidence, defendant failed to demonstrate a meritorious defense.
Our review of the ruling on defendant's Rule 60(b) motion is limited to whether the trial court abused its discretion. State, ex rel., Davis v. Adams,. A trial court will be reversed for abuse of discretion "only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason." Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980) (citation omitted); Sloan v. Sloan, 151 N.C. App. 399, 404, 566 S.E.2d 97, 101 (2002) (citation omitted). This Court is bound by the trial court's findings of fact which are supported by any competent evidence. Oxford Plastics, supra.
Under Rule 60(b)(1) and (b)(6), the movant must establish that he has a meritorious defense. Sides v. Reid, 35 N.C. App. 235, 241 S.E.2d 110 (1978). In deciding whether the movant has a meritorious defense, the trial court
"should determine whether the movant has, in good faith, presented by his allegations . . . a valid defense. . . . `Where a party, in good faith, shows facts which raise an issue sufficient to defeat his adversary, if it be found in his favor, it is for the jury to try the issue and not for the judge, who merely finds whether on their face the facts show a good defense in law. . . .'"
Oxford Plastics, 74 N.C. App. at 260, 328 S.E.2d at 10 ( quoting Bank v. Finance Co., 25 N.C. App. 211, 212 S.E.2d 552 (1975) (citations omitted) (emphasis in original)).
As recited in Part I, supra, the trial court in this case found as facts that around April 2001, the minor child's physical appearance led defendant to question whether he was the father and that Blakeney had confided in defendant that she had sexual relations with another man around the time the child was conceived.(R21-22) The trial court further found as follows:
5. That the Court received evidence of DNA blood testing which excluded Defendant as the biological father of Destinee Danyell Blakeney, with a 0% probability of paternity.
. . .
7. Upon learning the results of the DNA paternity testing[,] Shayla Scott Blakeney and the Defendant agreed to ask the Court for relief from the Voluntary Support Agreement and the Order of Paternity.
8. From about April 2001 until the present[,] Shayla Scott Blakeney has neither requested nor received any benefits from the Defendant for the minor child.
Competent evidence in the record supports the trial court's findings of fact, which, in turn, support its conclusion that defendant was entitled to relief from the support agreement and paternity order.
The trial court's order makes it clear that defendant presented facts which, if found in his favor, would raise an issue sufficient to defeat his adversary under the Oxford Plastics standard. Not only did the minor child's appearance change to such an extent that defendant questioned the paternity, but Blakeney admitted to defendant that she had sexual relations with another man and that defendant may not be the child's father. Further, Blakeney agreed to seek relief from the support agreement and order and has not requested any benefits from defendant since April 2001. Thus, even disregarding the DNA blood test results, which were improperly admitted as discussed above, defendant presented a meritorious defense. We hold the trial court did not err in granting defendant's motion for relief under Rule 60(b)(6).
Remanded for a New Trial.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).