Harwell v. Harwell , 106 N.C. App. 389 ( 1992 )

HEDRICK, Chief Judge.

Although Judge Harbinson found that the question of the paternity of the minor child born during the marriage of the parties herein “is in controversy,” there is nothing within the record on appeal disclosing such an issue. The pleadings clearly show that plaintiff admits that he is the biological father of Kiya, who was born in wedlock, that defendant does not deny that plaintiff is the natural father, and that defendant denies all allegations concerning her commission of adultery. The trial judge had absolutely no authority to enter the order from which plaintiff appeals as it addresses an issue which has not been raised by either party involved in this lawsuit. The order will be vacated and the cause will be remanded to the trial court.

We will further point out to these parties that Rule 11 of the North Carolina Rules of Civil Procedure states that:

. . . The signature of an attorney or party [upon a motion filed with the court] constitutes a certificate by him that he has read the . . . motion . . .; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law . . ., and that it is not interposed for any improper purpose . . . . If a . . . motion ... is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction ....

G.S. 1A-1, Rule 11. This Court does not have authority to impose sanctions pursuant to this rule. Likewise, as Judge Harbinson actually granted the motion filed by defendant, we believe that it would not be proper for her to hear or decide any motion which may be made pursuant to Rule 11 following the remand of this cause.

The costs of this appeal are taxed to defendant.

Vacated and Remanded.

Judges JOHNSON and Wynn concur in the result only.