1. Child Support, Custody, and Visitation--visitation by grandparent--deceased
mother--intact family--standing of grandparent
The trial court did not err by granting defendant-father's Rule 12(b)(6) motion to dismiss
an action by a grandmother seeking visitation with her grandchildren after her daughter was killed
in an automobile accident. The children and defendant must be considered as living in an “intact
family,” and plaintiff thus has no standing to seek visitation with her grandchildren under N.C.G.S.
§ 50-13.1(a).
2. Child Support, Custody, and Visitation--visitation by grandparent--parent deceased
after custody order--subject matter jurisdiction
The trial court properly concluded that it lacked subject matter jurisdiction over a claim
for visitation by a under N.C.G.S. § 50-13.5(j) where it was undisputed that defendant-father was
awarded legal custody of the children in a 1995 court order in a proceeding contested by
plaintiff's daughter, now deceased, who was defendant's former wife and the mother of the
children. The trial court's jurisdiction over the issues of visitation and custody terminated upon
the death of plaintiff's daughter in 1997.
Olson, Smith, Jordan and Cox, P.A., by James S. Erwin,
III, for plaintiff-appellant.
H. Paul Averette, for defendant-appellee.
JOHN, Judge.
Plaintiff appeals the trial court's order allowing defendant's
motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6)
(1999)(Rule 12(b)(6)). We affirm.
The uncontested pertinent facts and procedural history includethe following: Defendant and plaintiff's daughter ar
e the
biological parents of minor children Travis and Joshua Breedlove
(jointly, the children), born 14 September 1989 and 21 May 1991
respectively. On 12 January 1995, defendant was awarded custody of
the children by court order following his separation and subsequent
divorce from plaintiff's daughter. The children have lived with
defendant since that date. In June of 1997, plaintiff's daughter
was killed in an automobile accident.
On 14 October 1998, plaintiff instituted the instant action
seeking visitation with the children as their grandmother. On 30
October 1998, defendant moved to dismiss plaintiff's complaint
pursuant to Rule 12(b)(6), alleging she had failed to state a claim
upon which relief might be granted. Following a hearing, the trial
court allowed defendant's motion by order filed 29 December 1998
(the Order).
The Order contained the following pertinent findings of fact:
2. The Defendant is the biological father of
[the] two minor children . . .; the Plaintiff
is the maternal grandmother . . .; the
biological mother of the minor children, who
was divorced from the Defendant in 1997, died
in an automobile accident in 1997.
. . . .
4. From and since 1995, the minor children
have lived with the Defendant. . . .
5. There is no other action pending relative
to custody or otherwise between the parties at
this time.
Based upon its factual findings, the trial court rendered the
following conclusion of law: [P]ursuant to the Rule of Law enunciated in
the case of McIntyre v. McIntyre . . . the
Plaintiff, the grandmother herein, has no
right to sue for visitation when no custody
proceeding is ongoing and the minor children's
family is intact. [Additionally,] pursuant to
the Rule of Law enunciated in Fisher v. Gaydon
. . . the minor children and the Defendant are
an “intact family unit[,]” [a]nd . . . that
[the court] lacks subject matter jurisdiction.
. . .
Plaintiff appeals.
[1]Plaintiff contends the trial court
err[ed] in granting the defendant's motion to
dismiss because McIntyre v. McIntyre does not
require it and to the extent Fisher v. Gaydon
does, it should be overruled.
In addition, plaintiff relies on N.C.G.S. § 50-13.1(a)(1999) and
N.C.G.S. § 50-13.5(j)(1999).
In McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995),
our Supreme Court acknowledged that G.S. § 50-13.1(a) allows a
grandparent to “institute an action or proceeding for the custody”
of their grandchild, G.S. § 50-13.1(a), but held such statute
does not grant [grandparents] the right to sue
for visitation when no custody proceeding is
ongoing and the minor children's family is
intact,
McIntyre, 341 N.C. at 635, 461 S.E.2d at 750. Plaintiff maintains
that McIntyre, read in context, defined an “intact family” as “two
natural parents residing together with their children.” In lightof recent decisions of this Court, we cannot agree. See In the
Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989) (where one panel of Court of Appeals “has decided the
same issue, albeit in a different case, a subsequent panel of the
same court is bound by that precedent, unless it has been
overturned by a higher court”).
In Montgomery v. Montgomery, 136 N.C. App. 435 , 524 S.E.2d
360 (2000), this Court discussed the “intact family” requirement.
In Montgomery, paternal grandparents sought visitation with their
granddaughter, alleging she was not living in an “intact family.”
The plaintiffs' son, the child's biological father, had been killed
in a highway collision. Id. at __, 524 S.E.2d at __. At the time
of his death, he and his wife were living separate and apart and
the child resided with her mother. Id. This Court upheld
dismissal of the grandparents' action upon holding the child lived
in an “intact family” as required by McIntyre and defined in Fisher
v. Gaydon, 124 N.C. App. 442, 444-45, 477 S.E.2d 251, 252-53
(1996), disc. review denied, 345 N.C. 640, 483 S.E.2d 706 (1997).
Id. at __, 524 S.E.2d at __.
In Fisher, this Court established that an “'intact family'
within the meaning of McIntyre” may exist where “a single parent
[is] living with his or her child,” Fisher, 124 N.C. App. at 445,477 S.E.2d at 253, and is not limited to the circumstance wher
e a
child and both natural parents are living together, id.; see
Penland v. Harris, 135 N.C. App. 359, __, 520 S.E.2d 105, 107
(1999) (“the term 'intact family' should certainly include a
married natural parent, step-parent and child living in a single
residence”).
Under the foregoing precedent, the children and defendant in
the case sub judice must be considered as living in an “intact
family,” and plaintiff thus has no standing to seek visitation with
her grandchildren under G.S. § 50-13.1(a). See McIntyre, 341 N.C.
at 634, 461 S.E.2d at 749 (grandparents accorded no standing under
G.S. § 50-13.1(a) to seek visitation where the “natural parents
have legal custody of their children and are living with them as an
intact family”), and Fisher, 124 N.C. App. at 445, 477 S.E.2d at
253 (“[t]he traditional two-parent model . . . is not the
determinative factor qualifying a group of persons as a family . .
. ; a single parent living with his or her child is an 'intact
family' within the meaning of McIntyre”).
[2]Plaintiff also contends she is afforded standing to seek
visitation by G.S. § 50-13.5(j), and that Fisher should be
overruled. As to the latter contention, we have noted above the
decision of our Supreme Court limiting to that Court the authorityto overrule decisions of a panel of this Court. See In the Matter
of Appeal from Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.
As to plaintiff's assertion referencing G.S. § 50-13.5(j), she has
cited no authority in support of her reliance thereon, see N.C.R.
App. P. 28(b)(5) (assignments of error “in support of which no . .
. authority [is] cited, will be taken as abandoned”), and her
argument in any event fails under McIntyre.
G.S. § 50-13.5(j) provides:
In any action in which the custody of a minor
child has been determined, upon a motion in
the cause and a showing of changed
circumstances pursuant to G.S. § 50-13.7, the
grandparents . . . are entitled to . . .
visitation rights as the court . . . deems
appropriate.
Interpreting this statutory provision, the McIntyre Court
noted that although G.S. § 50-13.5(j) permits grandparents to seek
visitation subsequent to an initial custody determination,
the trial court retains jurisdiction of the
issue of custody [only] until the death of one
of the parties or the emancipation of the
youngest child. (emphasis added).
McIntyre, 341 N.C. at 633, 461 S.E.2d at 748 (citations omitted);
see also Shoaf v. Shoaf, 282 N.C. 287, 290, 192 S.E.2d 299, 302
(1972)(quoting Weddington v. Weddington, 243 N.C. 702, 704, 92
S.E.2d 71, 73 (1956))(“[a]fter separation, followed by action fordivorce . . . authority to provide for the custody of children
vests in the court in which the divorce proceeding is pending . .
. 'so long as the action is pending and it is pending for this
purpose until the death of one of the parties, or the youngest
child of the marriage reaches the age of maturity'”).
It is undisputed herein that defendant was awarded legal
custody of the children by a 1995 court order in a proceeding
contested by plaintiff's daughter, the now-deceased former wife of
defendant and the mother of the children. It is further
uncontested that plaintiff's daughter died in 1997. Under the
statutory interpretation of our Supreme Court in McIntyre,
therefore, the trial court's jurisdiction over the issues of
visitation and custody regarding the children herein terminated
upon the death of plaintiff's daughter. See McIntyre, 341 N.C. at
633, 461 S.E.2d at 748 (court retains jurisdiction over issue of
custody and visitation “until the death of one of the parties”).
In sum, the trial court properly concluded it lacked subject
matter jurisdiction over plaintiff's visitation claim, and the
court did not err in allowing defendant's motion to dismiss said
claim for failure to state a claim upon which relief might be
granted. See G.S. § 1A-1, Rule 12(b)(6).
Affirmed. Judges MCGEE and HUNTER concur.
*** Converted from WordPerfect ***