Uniform Reciprocal Enforcement of Support; District Attorney

Subject:

Requested By: Honorable Kermit B. Caldwell Assistant District Attorney 25th Judicial District

Question: May a Uniform Reciprocal Enforcement of Support Action be tried at a criminal term of the District Court over the objection of the defendant’s attorney?

Conclusion: Yes.

Chapter 52A is the North Carolina General Statutory codification of the Uniform Reciprocal Enforcement of Support Act (URESA). G.S. 52A-3(1) defines court as "any court of record in this State having jurisdiction to determine liability of persons for the support of dependents in any criminal proceeding." G.S. 52A-9 provides that "Jurisdiction of all proceedings hereunder shall be vested in any court of record in this State having jurisdiction to determine liability of persons for the support of dependents in any criminal proceeding." (Emphasis added)

In Cline v. Cline, 6 N.C. App. 523, 170 S.E. 2d 645 (1969), the court held that URESA proceedings are civil in nature although set statutorily in the criminal term of District Court and further that the District Court has exclusive original jurisdiction of actions to determine liability of persons for support of dependents in any criminal proceeding, including URESA actions. Additionally, it is noted that the prosecuting attorney who handles URESA actions is the District Attorney who enforces criminal laws relating to support, G.S. 52A-3(8) and G.S. 52A-10.1. Therefore, it is clear that the North Carolina Legislature has deemed that URESA actions, even though civil in nature, should be handled in District Court by the District Attorney’s Office.

North Carolina General Statute 7A-49.2(a) provides "At criminal sessions of court, motions in civil actions may be heard upon due notice, and trials in civil actions may be heard by consent of parties. . . . The court may also enter consent orders and consent judgments, and try uncontested civil actions." In Branch v. Branch, 282 N.C. 133, 191 S.E. 2d 671 (1972), the court concluded that a contested divorce action could not be heard in a criminal session absent the consent of the defendant and that any judgment entered therein was rendered a nullity sans this consent. Thus Branch, supra, has language interpreting G.S. 7A-49.2(a) which could be construed to indicate that URESA actions should not be heard at criminal sessions of District Court without a defendant’s consent.

This Office is of the opinion that the decision rendered in Branch correctly interpreted G.S. 7A49.2(a) as it applied to the factual context of that case. However, Branch does not stand for a prohibition against having URESA actions, although civil in nature, heard in a criminal session of District Court without the defendant’s consent. G.S. 7A-49.2(b) provides "For sessions of court designated for the trial of civil cases only, no grand juries shall be drawn and no criminal process shall be made returnable to any civil session." As stated previously, Cline, supra, interpreting Chapter 52A concluded that "The District Court in North Carolina has exclusive original jurisdiction of misdemeanors . . . including actions "to determine liability of persons for the support of dependents in any criminal proceeding."" See G.S. 7A-272. Since G.S. 7A-49.2(b) bars any proceedings in a civil session that involve criminal process, it becomes apparent that the definition of jurisdiction espoused in G.S. 52A-9 is limited to District Courts having either criminal or mixed sessions and that URESA actions should not be heard at sessions denominated as civil only.

This conclusion is further supported by rules of statutory construction which would indicate that the URESA statutes enacted subsequent to G.S. 7A-49.2 and being more specific would control. The most recently enacted statute is presumed to encompass legislative intent. See 12 N.C. Index 3d § 5, et seq. (pp. 65-74). Based upon these grounds, it is apparent that URESA actions are to be heard at District Court criminal sessions even if a defendant withholds his consent to the proceedings. To conclude otherwise would permit a recalcitrant defendant who objects to his case being heard in criminal session to effectively thwart any enforcement of URESA, as by statute URESA actions may not be heard at session of court designated as strictly civil. It is, therefore, the opinion of this Office that the legislature, by enacting Chapter 52A as worded, has established that a URESA action shall be heard at criminal or mixed sessions of District Court with or without the defendant’s consent. Based upon the foregoing considerations, that portion of the Attorney General’s Opinion issued on 23 December 1975 dealing with the aforementioned issue is withdrawn. (45 N.C.A.G. 181).

Rufus L. Edmisten Attorney General

Henry H. Burgwyn Assistant Attorney General