concluding that party did not waive personal jurisdiction objection based on improper service in moving for relief from order pursuant to Rule 60(b) because party did not make any general appearances prior to entry of order being challenged
How later courts described this case
- concluding that party did not waive personal jurisdiction objection based on improper service in moving for relief from order pursuant to Rule 60(b) because party did not make any general appearances prior to entry of order being challenged
- finding that the general-appearance cases cited by the petitioner were “inapplicable because [the] respondent never made a general appearance before entry of the final (codified at N.C.G.S. §§ 1-75.1 to -75.12; 1A-1, Rules 1–44, 45–65, 68–68.1, 70, 84
- discussion of cases on waiver by general appearance
Written by the judges who cited it.
The opinion
GEER, Judge
concurring.
I concur fully with the majority opinion, but write separately because I also believe that respondent is barred from challenging the 25 October 1979 adoption order. Respondent contends, the trial court assumed, and petitioner does not dispute that the statute in existence in 1979 controls: “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.” N.C. Gen. Stat. § 48-28 (a) (repealed effective 1 July 1996).
In 1996, the General Assembly amended North Carolina’s adoption laws, including N.C. Gen. Stat. § 48-28 (a). The session law pro *586 vided that “[t]his act becomes effective July 1, 1996. Any petition for adoption filed prior to and still pending on the effective date of this act shall be completed in accordance with the law in effect immediately prior to the effective date of this act.” 1995 N.C. Sess. Laws 457 § 12 (emphasis added). While the petition for adoption at issue in this case was filed prior to the effective date of the amendments, it was not still pending as of the effective date. As a result, I believe the controlling law is the statute that went into effect on 1 July 1996: N.C. Gen. Stat. § 48-2-607 (2003).
Under N.C. Gen. Stat. § 48-2-607 , a party to the adoption proceedings who does not appeal the order “shall be fully bound by the order.” N.C. Gen. Stat. § 48-2-607 (a). With respect to people who were not parties to the adoption proceedings, the statute provides: “No adoption may be attacked either directly or collaterally because of any procedural or other defect by anyone who was not a party to the adoption.” Id. Parents or guardians are, however, given a limited additional right to challenge an adoption decree. N.C. Gen. Stat. § 48-2-607 (c) provides in pertinent part:
(c) A parent or guardian whose consent or relinquishment was obtained by fraud or duress may, within six months of the time the fraud or duress is or ought reasonably to have been discovered, move to have the decree of adoption set aside and the consent declared void. A parent or guardian whose consent was necessary under this Chapter but was not obtained may, within six months of the time the omission is or ought reasonably to have been discovered, move to have the decree of adoption set aside.
N.C. Gen. Stat. § 48-2-607 (c).
In short, because the adoption order was entered in 1979, respondent could no longer move to set aside that order. This case demonstrates why there is a need for finality in adoptions. An order of adoption should not be subject to unraveling a quarter of a century after it was entered.