Surles v. Surles , 113 N.C. App. 32 ( 1993 )

Judge WYNN

concurring.

Upon review of the trial court’s order awarding custody to the defendant mother Elaine S. Surles, I conclude that the trial court erred as a matter of law by finding that intervenor David Blackman is the biological father of Sara Brook Surles. It is the law of North Carolina that in order to overcome the presumption of legitimacy of a child born during lawful wedlock, there must be a jury trial resolving the issue of paternity. In re Legitimation of Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985). By including in its findings of fact the statement that Blackman is the biological parent of the child, the court essentially rendered a determination of paternity without a jury, in violation of Locklear.

Having so concluded, I would nonetheless find such error harmless. The trial court made sufficient findings of fact as to the other circumstances surrounding the custody decision, including the suitability of both the plaintiff and the defendant, to justify its award of custody to the defendant.