Flinn v. Laughinghouse

HILL, Judge. Defendant first assigns as error the trial court’s denial of his motion to dismiss plaintiffs independent action, alleging the trial court had no jurisdiction over the subject matter of this controversy. Defendant contends the clerk of superior court has exclusive original jurisdiction in adoption proceedings unless an appeal has been taken from the decision of the clerk. Rule 60 of the Rules of Civil Procedure establishes steps to provide relief from a judgment or order of court. The rule states specifically: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.” G.S. 1A-1, Rule 60(b). Rule 60(c) incidentally establishes the same power in judges with respect to judgments rendered by the clerk. Rule 60(b) defines areas from which relief can be obtained, including fraud and “[a]ny other reason justifying relief from the operation of the judgment.” G.S. 1A-1, Rule 60(b)(6). The broad language of Rule 60(b)(6) gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice. Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E. 2d 446 (1971); Norton v. Sawyer, 30 N.C. App. 420, 227 S.E. 2d 148, cert. denied, 291 N.C. 176, 229 S.E. 2d 689 (1976). Since plaintiff was not notified or made a party to the adoption nullification proceeding initiated by the defendant, the plaintiff was empowered fully to bring an independent action to vacate the clerk’s order. See Strickland v. Hughes, 273 N.C. 481, 160 S.E. 2d 313 (1968); Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617 [479] (1956). We conclude plaintiffs action falls within the parameters of G.S. 1A-1, Rule 60. Defendant next argues the trial judge erred in granting summary judgment for the plaintiff and entering an order vacating the clerk’s order in the adoption proceeding, and in denying defendant’s motion for summary judgment. Defendant contends she had standing to attack her adoption because (1) she was not represented by counsel or a guardian ad litem at her adoption proceeding; (2) she did not consent to her adoption; and (3) her alleged natural father, Frank Jones, was not made a party to defendant’s adoption proceeding. An examination of the record reveals the original adoption proceeding to be in proper form. Furthermore, G.S. 48-28 governs who has standing to question the validity of adoption proceedings and it provides as follows: Questioning validity of adoption proceeding. —(a) After the final order of adoption is signed, no party to an adoption proceeding nor anyone claiming under such a party may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound thereby, save for such appeal as may be allowed by law. No adoption may be questioned by reason of any procedural or other defect by anyone not injured by such defect, nor may any adoption proceeding be attacked either directly or collaterally by any person other than a biological parent or guardian of the person of the child. The failure on the part of the clerk of the superior court, the county director of social services, or the executive head of a licensed child-placing agency to perform any of the duties or acts within the time required by the provisions of this section shall not affect the validity of any adoption proceeding. (b) The final order of adoption shall have the force and effect of, and shall be entitled to, all the presumptions attached to a judgment rendered by a court of general jurisdiction. (Emphasis added.) This statute clearly prohibits any direct or collateral attack in adoption proceedings except by a biological parent or guardian of the child. See Hicks v. Russell, 256 N.C. 34, 123 S.E. 2d 214 [480] (1961). It makes no provision for attack by the child. Nothing in the statute requires that she be represented by counsel or that a guardian ad litem be appointed. Nor does the statute require her consent. G.S. 48-6(b) does not require her natural father to give his consent or to be made a party. This statute provides: In all cases where a court of competent jurisdiction has rendered a judgment of divorce on the grounds of separation between the natural mother of a child and her husband, the consent of the husband shall not be required for the adoption of a child of the wife, begotten during the period of separation determined by the court in the divorce action as the basis of its judgment, and the husband need not be made a party to the adoption proceeding. The South Carolina divorce between defendant’s mother and Frank Jones was based on a separation of the parties from and after October 1953. Defendant was born in June 1955. It is apparent the child was “begotten during the period of separation determined by the court in the divorce action as the basis of its judgment.” G.S. 48-6(b). Defendant has no standing under North Carolina law to attack her adoption. The decision of the trial judge entering summary judgment in favor of plaintiff and vacating the clerk’s order is Affirmed. Judges WEBB and WHICHARD concur.