Myers v. Myers , 39 N.C. App. 201 ( 1978 )

249 S.E.2d 853 (1978) 39 N.C. App. 201

Minnie Armstrong MYERS
v.
Donald Odell MYERS.

No. 7821DC63.

Court of Appeals of North Carolina.

December 19, 1978.

Randolph & Randolph by Doris G. Randolph, Winston Salem, for plaintiff-appellee.

Morrow, Fraser & Reavis by Larry G. Reavis, Winston Salem, for defendant-appellant.

ERWIN, Judge.

At the hearing of this cause before Judge Harrill, the following evidence was offered by defendant and later excluded by Judge Harrill:

"Defendant testified that Anthony Brian Myers was born on the 16th day of July, 1965; that plaintiff and defendant were not married to each other at the time; that they thereafter married on the 7th day of March, 1971. Defendant further testified that he signed the affidavit contained in ``Request for New Certificate of Birth' in the legitimation proceeding of Anthony Brian Myers, that this procedure was followed and request for new certificate of birth filed at his own instance.

. . . . .

Anthony Brian Myers is not the defendant's son and that in fact the defendant was married to someone other than the plaintiff during the year Anthony Brian Myers was born. The defendant has not told anyone that he is the father of Anthony Brian Myers. The defendant signed the request for a new certificate of birth before a Notary Public; however, he did not swear to the affidavit. The defendant mailed the request for the new certificate of birth directly to the Bureau of Vital Statistics; North Carolina Department of Human Resources; Raleigh, North Carolina [sic]. (Paragraph allowed over plaintiff's objection—later excluded.)

JUDGE'S RULING AND STATEMENT. That after hearing all of the evidence, I have decided to exclude all testimony and to hereby exclude all testimony offered by the plaintiff or the defendant that would tend or tends to controvert or go behind the closed file relating to the new birth certificate and application of same, file volume number 65, page 54606, closed file in the Vital Records Division, North Carolina Department of Human Resources."

The court entered the following findings of fact as related to this appeal:

"[A second child, ANTHONY BRIAN MYERS, was born on the 16th day of July, 1965, a period of time between the two marriages of the parties. Thereafter, plaintiff and defendant filed affidavit with the Register of Deeds of Surry County on the 2nd day of June, 1976, and request for new birth certificate for Anthony Brian Myers on DHS Form 1037, Vital Records, North Carolina Department of Human Resources, acknowledging that defendant was the natural father of the child and that he had subsequently married the mother. This affidavit and request was filed under the provisions of North Carolina General Statutes 49-12.]

EXCEPTION NO. 1"

Upon this finding of fact, the court concluded as a matter of law that:

"[Pursuant to File No. Volume 65, Page 54606 closed file in the Vital Records Division, North Carolina Department of Human Resources, sealed legitimation file, Anthony Brian Myers is the legitimated child of the parties hereto. The minor child, Anthony Brian Myers, was legitimated by defendant on the 2nd day of June, 1976, as provided by North Carolina General Statutes 49-12 and 49-13, and defendant is thereby estopped from collateral attack upon said proceeding and from denial of paternity of said child in this proceeding.]

EXCEPTION NO. 2"

Defendant contends that the trial court erred in three respects: (1) that his evidence was improperly excluded and should have been considered, (2) that the finding of fact is in error because his evidence was excluded, and (3) the conclusion of law was in error, and had the court considered his evidence, the above finding of fact and conclusion of law would have been found favorable to him. We do not agree.

G.S. 49-12 reads:

"Legitimation by subsequent marriage. —When the mother of any child born out of wedlock and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall, in all respects after such intermarriage be deemed and held to be legitimate and the child shall be entitled, by succession, inheritance or distribution, to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock."

G.S. 49-13 reads:

"New birth certificate on legitimation. —A certified copy of the order of legitimation when issued under the provisions of G.S. 49-10 shall be sent by the clerk of the superior court under his official seal to the State Registrar of Vital Statistics who shall then make the new birth certificate bearing the full name of the father, and change the surname of the child so that it will be the same as the surname of the father.

When a child is legitimated under the provisions of G.S. 49-12, the State Registrar of Vital Statistics shall make a new birth certificate bearing the full name of the father upon presentation of a certified copy of the certificate of marriage of the father and mother and change the surname of the child so that it will be the same as the surname of the father."

"In part these two sections of our statutes regulate the family circle and define the rights and responsibilities of members of that circle. They must therefore be construed in pari materia." Carter v. Carter, 232 N.C. 614, 616, 61 S.E.2d 711, 713 (1950).

In the case sub judice, the record is clear that the minor child was born out of wedlock; that the father of the child and his mother were thereafter married; and that the father and mother filed the necessary affidavits wherein the father acknowledged that he was the natural father of the child. The plaintiff and defendant filed a request for new certificate of birth proper in form with the necessary information as required by G.S. 49-13. The original birth certificate and the marriage certificate showing the date of remarriage as 7 March 1971 were filed with the State Registrar of Vital Statistics. A new certificate was issued. G.S. 49-12 and 49-13 were fully complied with, and we so hold.

The next question presented is whether the defendant father of the child in question is estopped from collaterally attacking the proceeding set out above and from denial of paternity of the said child in this civil action. We agree with the trial court and answer the question, "yes." There is not any evidence in the record to show that the defendant did not know what he was doing or that he did not know the consequences of his acts when he filed his affidavit stating he was the "natural father" of the child. Defendant does not allege or offer any evidence of fraud or any other misconduct on the part of plaintiff or any other person. It appears to us that the defendant would have known the true facts of the event in question on 2 June 1976 as well as he did on 11 August 1977. Defendant does not offer any reason for giving the affidavit on 2 June 1976 nor does he offer any reason for changing his position to repudiate the affidavit.

The judgment is

Affirmed.

PARKER and ROBERT M. MARTIN, JJ., concur.