Smith v. Bumgarner , 115 N.C. App. 149 ( 1994 )

443 S.E.2d 744 (1994)

Marie G. SMITH and Miranda Blaine Smith
v.
Michael R. BUMGARNER and Robin Bruce Smith.

No. 9325DC552.

Court of Appeals of North Carolina.

June 7, 1994.

Sherwood Carter, Hickory, for plaintiff-appellant.

Sigmon, Sigmon and Isenhower by W. Gene Sigmon, Newton, for defendant-appellee Bumgarner.

MARTIN, Judge.

In a civil action to establish paternity of an alleged illegitimate child pursuant to G.S. § 49-14 et seq., does the failure to properly join that child justify dismissal of the action? We conclude, for two reasons, that the order of the trial court dismissing this action must be reversed.

Initially, we observe that dismissal of this action due to the non-appointment of a guardian ad litem for Miranda Smith is clearly error. Even where there is a fatal defect of the parties, as defendant Bumgarner apparently convinced the trial court here, dismissal of the action is not warranted. Rather, "the court should refuse to deal with the merits of the case until the absent parties are brought into the action, and in the absence of a proper motion by a competent person, the defect should be corrected by ex mero motu ruling of the court." Booker v. Everhart, 294 N.C. 146, 158, 240 S.E.2d 360, 367 (1978). (Citations omitted.) Infants are particularly entitled to the protection of the courts; in order to protect Miranda's interests, the trial court should have, ex mero motu, appointed a new guardian ad litem for her.

We do not believe, however, that Miranda is a necessary party to this action. Chapter 49, Article 3 of the North Carolina General Statutes, entitled "Civil Actions Regarding Illegitimate Children", sets forth the statutory provisions applicable to this case. G.S. § 49-14(a) provides:

The paternity of a child born out of wedlock may be established by civil action at any time prior to such child's eighteenth birthday. A certified copy of a certificate of birth of the child shall be attached to the complaint. Such establishment of paternity shall not have the effect of legitimation. (Emphasis added.)

G.S. § 49-16 provides:

Proceedings under this Article may be brought by:

(1) The mother, the father, the child, or the personal representative of the mother or the child.

A child born to a married woman but begotten by one other than her husband is a child "born out of wedlock." In re Legitimation of Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985) (interpreting G.S. § 49-10); Wright v. Gann, 27 N.C.App. 45, 217 S.E.2d 761, cert. denied, 288 N.C. 513, 219 S.E.2d 348 (1975) (interpreting G.S. § 49-14). The legislative purpose of an action under G.S. § 49-14 is to provide the basis or means of establishing the identity of the biological father so that the child's right to support may be enforced and the child will not become a public charge. Becton v. George, 90 N.C.App. 607, 369 S.E.2d 366 (1988). In actions for custody and support of a minor child in North Carolina, the minor child is not a necessary party. Moreover, G.S. § 49-16 allows either the mother, the father, or the child (or the representative of either the mother or child) to bring the action. A statute's words should be given their natural and ordinary meaning, Hyler v. GTE Products Co., 333 N.C. 258, 425 S.E.2d 698 (1993), and need not be interpreted when they speak for themselves. Abeyounis v. Town of Wrightsville Beach, 102 N.C.App. 341, 401 S.E.2d 847 (1991). A court must presume that the legislature, in enacting law, acted with full knowledge of prior and existing law. Whittington v. N.C. Dept. of Human Resources, 100 N.C.App. 603, 398 S.E.2d 40 (1990). Where a statute contains two clauses which prescribe its applicability and clauses are connected by the disjunctive "or", application of the statute is not limited to cases falling within both clauses but applies to cases falling within either. Davis v. Granite Corporation, 259 N.C. 672, 131 S.E.2d 335 (1963).

Those persons who may bring a proceeding pursuant to G.S. § 49-14, et seq., are specifically enumerated in G.S. § 49-16, separated by commas and the disjunctive "or." The provision is not ambiguous and its natural and ordinary meaning indicates that either of the listed persons may bring an action pursuant to G.S. § 49-14. Conversely, a child is expressly required as a necessary party to a legitimation proceeding pursuant to G.S. § 49-10. In re Legitimation of Locklear, supra. If the legislature had intended to require the child to be joined as a necessary party in an action under G.S. § 49-14, then it would have specifically stated such, as it did in G.S. § 49-10. G.S. § 49-14 expressly states that an establishment of paternity under that section does not have the effect of legitimation. Accordingly, we conclude that the minor Miranda Blaine Smith was not a "necessary party" to this action, and that dismissal of plaintiff's complaint pursuant to G.S. § 1A-1, Rule 12(b)(7) was error.

Reversed and Remanded.

EAGLES and McCRODDEN, JJ., concur.