Link to original WordPerfect file
Petitioner-Appellant, v. PAMELA KREBS, Respondent-Appellee
1. Wrongful Death--death of child--parental entitlement to settlement proceeds--
determination of abandonment of child--exceptions to rule
In a case determining entitlement to the proceeds of a wrongful death settlement in the
estate of the parties' daughter, the trial court erred in granting summary judgment in favor of
respondent-mother on the issue of whether she abandoned her daughter before her daughter's
fatal accident because a jury could conclude that respondent relinquished her parental claims and
abandoned decedent, which would bar respondent from the proceeds of the wrongful death
settlement under N.C.G.S. § 31A-2 unless respondent meets an exception under the statute such
as: (1) resuming care of the child at least one year prior to the death of the child, and continuing
the care until her death; or (2) being deprived of the custody of the child under an order of a
court of competent jurisdiction and substantially complying with all orders of the court requiring
contribution for the child's support.
2. Wrongful Death--death of child--parental entitlement to settlement proceeds--
abandonment of child--no exceptions met
In a case determining entitlement to the proceeds of a wrongful death settlement in the
estate of the parties' daughter, if on remand for trial the court determines that respondent-mother
abandoned her child, she will not be entitled to share in her child's wrongful death benefits
because: (1) she was not deprived of the custody of her child under an order of a court of
competent jurisdiction; and: (2) she does not meet the requirements for an exception under
N.C.G.S. § 31A-2(2).
Edmundson & Burnette, L.L.P., by R. Gene Edmundson and J.
Thomas Burnette, for petitioner-appellant.
Haywood, Denny & Miller, L.L.P., by Robert Levin and Thomas H.
Moore, for respondent-appellee.
McGEE, Judge.
Petitioner Ross E. Hixson, Jr. appeals from an order of
summary judgment entered in favor of respondent Pamela Krebs
determining that respondent is entitled to one-half of the proceedsfrom a wrongful death settlement in the estate of the parties'
daughter, Gina Renee Hixson. The record tends to show the
following: Petitioner and respondent were formerly married to one
another. Gina Renee Hixson and Wendy Elaine Hixson were born of
the parties' marriage. Petitioner and respondent signed a
separation agreement, which was incorporated into their divorce
judgment in 1976, agreeing that petitioner would have custody of
the parties' two minor daughters, and respondent would have
visitation. Gina Hixson was eighteen years old when she was killed
in an automobile accident in 1991. Petitioner qualified as
administrator of his daughter's estate and instituted a wrongful
death action on behalf of his daughter's estate.
Petitioner recovered $95,000 in the wrongful death action. In
his official capacity as administrator of his daughter's estate,
petitioner filed a declaratory action in August 1997 seeking a
declaration of rights to the proceeds recovered in the wrongful
death action. Respondent answered and subsequently filed a motion
for summary judgment. By order entered 1 December 1997, summary
judgment was granted for respondent. Petitioner appealed the
summary judgment to our Court. The appeal was dismissed by this
Court in an unpublished opinion on 18 August 1998 because
petitioner filed suit only in his capacity as executor of the
estate of Gina Renee Hixson, and the estate was not an aggrieved
party entitled to appeal the summary judgment in the declaratory
judgment action to determine division of the wrongful death
proceeds.
Petitioner filed an identical complaint on 12 August 1998,except the second complaint was on behalf of petitioner
individually as well as in his official capacity as administrator
of his daughter's estate. Respondent filed an answer on 8
September 1998 and moved for summary judgment on 22 October and 5
November 1998. Petitioner also filed a motion for summary judgment
on 5 November 1998. The trial court granted summary judgment in
favor of respondent on 15 December 1998, and petitioner filed
notice of appeal to our Court on 8 January 1999. Petitioner failed
to include a table of authorities in his brief in violation of
N.C.R. App. P. Rules 26(g) and 28(b)(1). Nonetheless, we will
consider the arguments of the petitioner under the provisions of
N.C.R. App. P. Rule 2 "to prevent manifest injustice" to
petitioner.
[1]Petitioner argues on appeal that the trial court erred in
granting summary judgment for respondent because respondent has not
proven the absence of a question of material fact regarding whether
she abandoned her daughter before the fatal accident. Gina Hixson
died without a will, and our state's Intestate Succession Act
provides that:
If the intestate is not survived by a child,
children or any lineal descendent of a
deceased child or children, but is survived by
both parents, they shall take in equal shares,
or if either parent is dead, the surviving
parent shall take the entire share.
N.C. Gen. Stat. § 29-15(3) (1984); see Newlin v. Gill, State
Treasurer, 293 N.C. 348, 349, 237 S.E.2d 819, 820 (1977). However,
a parent who abandons her or his child may not share in the
intestate estate. Chapter 31A of the North Carolina General
Statutes, entitled "Acts Barring Property Rights," provides: Any parent who has wilfully abandoned thecare and maintenance of his or her child shall
lose all right to intestate succession in any
part of the child's estate and all right to
administer the estate of the child, except --
(1) Where the abandoning parent resumed
its care and maintenance at least one year
prior to the death of the child and continuedthe same until its death; or
(2) Where a parent has been deprived of
the custody of his or her child under an order
of a court of competent jurisdiction and the
parent has substantially complied with all
orders of the court requiring contribution to
the support of the child.
N.C. Gen. Stat. § 31A-2 (1984). The statute also precludes the
abandoning parent from sharing in wrongful death proceeds.
Williford v. Williford, 26 N.C. App. 61, 63, 214 S.E.2d 787, 788,
aff'd, 288 N.C. 506, 219 S.E.2d 220 (1975). Thus, if respondent
"wilfully abandoned the care and maintenance" of her deceased
daughter, she may not share in the $95,000 wrongful death award.
N.C.G.S. § 31A-2. However, by the second exception to the rule, if
respondent was "deprived of the custody [of the decedent] under an
order of a court of competent jurisdiction," N.C.G.S. 31A-2(2), and
respondent "substantially complied with all orders of the court
requiring contribution to the support of the child," id., then she
may "share in the wrongful death proceeds notwithstanding an
abandonment of the daughter by [her]." Lessard v. Lessard, 77 N.C.
App. 97, 102, 334 S.E.2d 475, 478 (1985), aff'd, 316 N.C. 546, 342
S.E.2d 522 (1986).
Respondent argues that "[t]he issue of how the wrongful death
proceeds are to be split in this case has been previously
determined by this Court and this Court's prior decision is binding
upon the estate." We disagree. Our previous opinion in this case
recited the facts and then held that "[a]t the outset, we note that
petitioner's appeal must be dismissed." We concluded neither the
estate, nor petitioner in his capacity as executor of the estate,were aggrieved parties entitled to appeal. Hence, our Court did
not reach the question whether respondent was entitled to share in
the wrongful death award.
In Lessard, however, our Court did address the same issue that
is now before us: should summary judgment be granted when there is
evidence that a parent abandoned a child, but that parent may
qualify under the second exception to the rule precluding
abandoning parents from sharing in the child's estate. Our Court
determined in Lessard that whether or not a father abandoned his
daughter could not be appropriately resolved by summary judgment
where the mother presented evidence that the father "made few, if
any, attempts to manifest any love or concern for, or interest in,
the child, and refused to perform 'a natural obligation of parental
care' by declining to permit the child to live in his home."
Lessard, 77 N.C. App. at 101, 334 S.E.2d at 477-78. We next
determined that under N.C.G.S. § 31A-2(2) the father's substantial
compliance with a judgment requiring his financial support of the
child also was a question for the jury. Lessard, 77 N.C. App. at
101-02, 334 S.E.2d at 478. As in Lessard, we first address the
issue of abandonment and then consider the exception in N.C.G.S. §
31A-2(2).
Petitioner filed affidavits in support of his motion for
summary judgment signed by him and the parties' daughter, Wendy
Hixson. Respondent argues that the trial court should not have
considered "[t]he affidavits [which] . . . contain improper hearsay
assertions and improper legal conclusions[.]" However, the recordshows that the affidavits provided by petitioner contain facts from
personal knowledge, independent of any legal conclusions, see N.C.
Gen. Stat. § 1A-1, Rule 56(e), and therefore we reject respondent's
contention.
Petitioner stated in his affidavit that: respondent's visits
with their children were infrequent and short in duration after the
divorce in 1976. Respondent agreed to give custody of their
children to petitioner if he paid her bills and made a down payment
on a car for her. Respondent did not visit the children more
frequently or for longer periods after the visitation schedule was
modified in 1977 but did mail birthday and Christmas gifts
consisting of a doll or stuffed animal to their daughters.
Respondent moved to another state in 1982, and when petitioner
asked the Department of Social Services for assistance in
collecting child support, he was told that obtaining child support
would be very difficult. Respondent's visits were sporadic until
1988, when Gina refused to communicate or visit with respondent any
further. From 1988 until her death in 1991, Gina had no
relationship with respondent. Petitioner requested child support
from respondent for the benefit of their minor daughters over the
years but did not receive any child support from respondent for
their daughters. Petitioner also paid the entirety of Gina's
college expenses shortly before she died. Petitioner worked two
jobs from 1970 to 1992 to provide adequate care and financial
support for the children. Respondent did not contribute to the
$10,000 in burial expenses that petitioner paid following theirdaughter's death.
Wendy stated in her affidavit filed in support of petitioner's
summary judgment motion that: when she was a minor, she saw
respondent infrequently and that she continues to see respondent
infrequently; as children, she and Gina visited the respondent on
some holidays and sometimes in the summers. She further stated
that when Gina reached ten years of age, she refused to see
respondent but would see her occasionally. She stated that for the
two years prior to her death, Gina totally refused to visit with
respondent when respondent was in town, except infrequently, and
then for only thirty minutes. Wendy does not recall respondent's
ever giving her or her sister more than five dollars at any time.
During the last two years of her sister's life, Gina did not want
to and did not have a relationship with respondent.
Our Supreme Court has defined abandonment as:
[A]ny wilful or intentional conduct on the
part of the parent which evinces a settled
purpose to forego all parental duties and
relinquish all parental claims to the child.
[Citations omitted.] Wilful intent is an
integral part of abandonment and this is a
question of fact to be determined from the
evidence.
. . . .
Abandonment has also been defined as
wilful neglect and refusal to perform the
natural and legal obligations of parental care
and support. It has been held that if a parent
withholds his presence, his love, his care,
the opportunity to display filial affection,
and wilfully neglects to lend support and
maintenance, such parent relinquishes all
parental claims and abandons the child.
[Citation omitted.]
Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)
(quoted in Lessard, 77 N.C. App. at 101, 334 S.E.2d at 477). As in
Lessard, respondent in this case may have abandoned the decedent
according to the definitions cited in Pratt. Respondent may have
"wilful[ly]" and "intentional[ly]" behaved in such a way as to
"evince[] a settled purpose to forego all parental duties and
relinquish all parental claims to the child" when she made
infrequent and short visits with her daughters and refused to
support them financially. Pratt, 257 N.C. at 501, 126 S.E.2d at
608. It could be found that she "refus[ed] to perform the natural
and legal obligations of parental care and support," as she may
have "withh[eld] [her] presence, [her] love, [her] care, the
opportunity to display filial affection, and willfully neglect[ed]
to lend support and maintenance." Thus, a jury could conclude that
respondent "relinquish[ed] all parental claims and abandon[ed] the
[decedent]." Id. Summary judgment was granted in error on the
issue of whether respondent abandoned Gina Hixson.
[2]Nevertheless, if respondent was "deprived of the custody"
of Gina Hixson "under an order of a court of competent
jurisdiction" and "substantially complied with all orders of the
court requiring contribution to the support of the child," N.C.G.S.
§ 31A-2(2) provides she may share in the wrongful death benefits
even if she abandoned her child. The separation agreement dated 3
February 1975 between petitioner and respondent provides in
relevant part that:
NOW, THEREFORE, said parties for and in
consideration of the acts and things herein
respectively by them agreed to be done and
performed, do mutually agree, each with the
other as follows:
. . . .
It is agreed that the said Ross Hixson, Jr.
shall have the exclusive supervision, custody,
care and control of the said Wendy Elaine
Hixson and Gina Renee Hixson, and the said
Pamela Kay Hixson shall visit with the said
children so long as it does not interfere with
their health, eating and sleeping habits.
. . . .
It is agreed that the said Ross Hixson, Jr.
shall be responsible for and pay all
outstanding bills as of the date of this
separation agreement.
We first consider whether, pursuant to their separation
agreement, respondent was "deprived of the custody of [] her child
under an order of a court of competent jurisdiction[.]" N.C.G.S.
31A-2(2). The 8 April 1976 divorce judgment provides:
THIS CAUSE having come on to be heard
before the Undersigned Judge Presiding on the
8 day of April, 1976, and it appearing to the
Court that both parties to this action have
reached a mutual agreement and desire the same
to be embodied in this Court's Judgment, the
Court now makes the following Findings of
Fact:
. . . .
That there were two children born of this
marriage[.] These children are now, under the
terms of the Separation Agreement hereinafter
referred to, in the custody of [Ross Hixson].
That [Ross Hixson] remains a fit and
proper person to have custody of these
children subject only to such visitation
privileges as [Pamela Hixson] and [Ross
Hixson] may agree upon from time to time.
That [Pamela Hixson] and [Ross Hixson]
entered into a Separation Agreement dated
February 3, 1975, a copy of which is attached
to the Complaint in this action, and which
terms both [Pamela Hixson] and [Ross Hixson]
agree remain just and equitable in this
matter.
. . . .
All controversies raised by the Complaint and
Answer filed in this action have been settled
by the parties.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
. . . .
That the terms of the Separation
Agreement dated February 3, 1975, are
incorporated herein by reference thereto.
The divorce judgment, in its findings of fact and conclusions
of law, relied upon the provisions of the prior separation
agreement and clearly did not "deprive" respondent of the custody
of Gina Hixson. "[T]he legislature is presumed to have used the
words of a statute to convey their natural and ordinary meaning."
Wood v. Stevens & Co., 297 N.C. 636, 643, 256 S.E.2d 692, 697
(1979) (citations omitted); see also Regional Acceptance Corp. v.
Powers, 327 N.C. 274, 278, 394 S.E.2d 147, 149 (1990) ("Where words
of a statute are not defined, the courts presume that the
legislature intended to give them their ordinary meaning determined
according to the context in which those words are ordinarily
used."). To "deprive" is "to take something away from." The
American Heritage College Dictionary 374 (3d ed. 1997); see also
Black's Law Dictionary 304 (6th ed. 1991) ("deprivation" is "a
taking away or confiscation[.]"). Respondent agreed thatpetitioner would have custody of their children in the parties'
separation agreement signed more than a year prior to the entry of
the divorce judgment. Thus, respondent was not "deprived of the
custody of [] her child under an order of a court of competent
jurisdiction," and respondent does not meet the requirements for an
exception under N.C.G.S. § 31A-2(2).
We therefore reverse the entry of summary judgment and remand
for trial.
Reversed and remanded.
Judges HORTON and EDMUNDS concur.
*** Converted from WordPerfect ***