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Joyner v. Lucas

Filed: August 7, 1979.

MARY JENICE JOYNER
v.
JOHN HARDING LUCAS, JR.



Appeal by plaintiff from Gantt, Judge. Order entered 21 March 1978 in District Court, Durham County. Heard in the Court of Appeals 21 May 1979.

Morris, Chief Judge. Judges Hedrick and Webb concur.

Morris

The trial court entered its order dismissing plaintiff's action pursuant to defendant's motion to dismiss under G.S. 1A-1, Rule 12(b). Nevertheless, because matters outside the pleadings were considered by the court in reaching its decision, the ruling should

be treated as an order granting summary judgment. G.S. 1A-1, Rule 12(b). See Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979); Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971); see generally Annot., 2 A.L.R. Fed. 1027, 1028, n. 2. Therefore, in our consideration of this matter, we must remain cognizant of the fundamental proposition that a motion for summary judgment properly is granted only when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c).

Although the parties present other questions on appeal, the ultimate question for resolution concerns whether plaintiff is foreclosed from having the issue of her child's paternity, and that child's entitlement to support and maintenance, determined by a jury. Plaintiff's primary obstacle is the time limitation for instituting civil actions for paternity under G.S. 49-14, which, when this action was initiated, provided:

"Civil action to establish paternity. -- (a) The paternity of a child born out of wedlock may be established by civil action. Such establishment of paternity shall not have the effect of legitimation.

(b) Proof of paternity pursuant to this section shall be beyond a reasonable doubt.

(c) Such action shall be commenced within one of the following periods:

(1) Three years next after the birth of the child; or

(2) Three years next after the date of the last payment by the putative father for the support of the child, whether such last payment was made within three years of the birth of such child or thereafter.

Provided, that no such action shall be commenced nor judgment entered after the death of the putative father."

Identical civil actions were instituted 17 June 1976 and 10 February 1977, although each was dismissed without prejudice because of plaintiff's failure properly to serve the defendant John Harding Lucas, Jr. The present action was dismissed for ...


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