Judgments; Confessions; Custody of Minor Children; Entry by Clerk

Subject:

Judgments; Confessions; Custody of Minor Children; Entry by Clerk

Requested By:

The Honorable Martha J. Adams Clerk of Superior Court Alexander County

Question:

Is the Clerk of Superior Court authorized to enter judgment by confession which determines custody of minor children?

Conclusion:

No.

G.S.

1A-1, Rule 68.1, provides in pertinent part that a judgment by confession may be for money due, money that may become due, alimony, or for support of minor children. A statute authorizing confession of judgment is in derogation of the common law and is to be strictly construed. See Gibbs

v.

Weston & Co., 221 N.C. 7, 18 S.E. 2d 698 (1942).

This rule authorizes a confession of judgment by filing with the Clerk a verified statement signed by the defendant, which must contain the names of each of the parties, the county of the residence of each party, a concise explanation as to why defendant is or may become liable to the plaintiff and an authorization for entry of judgment for the amount stated. Rivers v. Rivers, 29 N.C. App. 172, 226

S.E. 2d 527, (1976). (Emphasis supplied).

Although G.S. 50-13.5 specifies that the words "custody and support" shall be deemed to include custody or support or both as used in that statute, it is inapplicable here since the procedure covers actions for custody and support and not a confession of judgment which is entered without action.

Strict construction requires that confession of judgment be only for:

(1)

money due or to become due,

(2)

alimony, or

(3)

for support of minor children.

Since this rule fails to provide for custody of minor children, the Clerk is without authority to enter judgment by confession establishing such custody.

Rufus L. Edmisten Attorney General

Parks H. Icenhour Assistant Attorney General