Dorton v. Dorton

318 S.E.2d 344 (1984)

Ronald W. DORTON
v.
Barbara S. DORTON.

No. 8319DC853.

Court of Appeals of North Carolina.

August 7, 1984.

Irvin, Irvin & Pickett by R. Wayne Pickett, Concord, for plaintiff-appellee.

Williams, Boger, Grady, Davis & Tuttle by John R. Boger, Jr., Concord, for defendant-appellant.

PHILLIPS, Judge.

The court had no authority to issue the order appealed from and it is hereby reversed and set aside. G.S. 8-50.1 authorizes judges to order blood grouping tests only in cases "in which the question of parentage arises." The parentage of the two children involved in this case is no longer an open question. It was long since set at rest in more ways than one. In the first place, by his own verified complaint filed thirteen years ago, plaintiff alleged that the two children were born of his marriage to the defendant. This allegation having been neither withdrawn, amended, nor otherwise altered, it is conclusive of the facts alleged and he is bound thereby. Universal C.I.T. Credit Corp. v. Saunders, 235 N.C. 369, 70 S.E.2d 176 (1952). In the second place, since defendant admitted plaintiff's parentage allegation, it is fundamental that no issue with respect thereto can arise and evidence relating thereto is irrelevant, because it can serve no proper purpose in the litigation. Wilson v. Chandler, 235 N.C. 373, 70 S.E.2d 179 (1952). In the third place, that the plaintiff is the father of these two children was judicially determined by the order entered on 27 July 1971 and this part of the order having been neither attacked nor modified, it is res judicata as to the contention raised by plaintiff's motion. Williams v. Holland, 39 N.C.App. 141, 249 S.E.2d 821 (1978). In the fourth place, by acceding to the terms of the several orders based on plaintiff's paternity and otherwise acknowledging both directly and indirectly for many years that he is the father of these children, plaintiff is now estopped to contend otherwise. Withrow v. Webb, 53 N.C. App. 67, 280 S.E.2d 22 (1981). Finally, permitting plaintiff at this late date to disturb the stability of these children and cast a cloud on their legitimacy upon this record would be contrary to public policy.

The order appealed from is reversed.

Reversed.

HEDRICK and ARNOLD, JJ., concur.