Appeal by defendant from orders entered 25 February 2003 by
Judge Albert A. Corbett, Jr. in Harnett County District Court.
Heard in the Court of Appeals 19 April 2004.
Jones and Jones, P.L.L.C., by Cecil B. Jones, for defendant-
appellant.
Hayes, Williams, Turner & Daughtry, P.A., by Parrish Hayes
Daughtry, for intervenor-appellees.
HUNTER, Judge.
Chenay Sanders Sloan (“defendant”) appeals separate orders (1)
allowing Kathy and Anthony C. Sloan, Sr. (“intervenors”) to
intervene and be made formal parties to a child custody action, (2)
finding defendant in criminal contempt for violating a previously
entered permanent child custody order, and (3) modifying that
previous custody order to allow intervenors greater visitation with
their grandchild on the grounds of a substantial change in
circumstances. Defendant also appeals the trial court's order
denying her motion to dismiss intervenors' motions pursuant to Rule
12(b)(6) and/or because the trial court lacked subject matter
jurisdiction. For the reasons stated herein, we affirm.
On 18 January 2001, Anthony Curtis Sloan, Jr. (“plaintiff”)
filed a complaint against defendant seeking temporary and permanent
custody of their daughter (“C.S.”) after defendant abandoned their
marriage and moved to the State of Washington with the minor child.
After defendant answered plaintiff's complaint and counterclaimed
for temporary and permanent custody of C.S, a hearing to determine
temporary custody was held on 17 July 2001. By order entered 20
August 2001, the trial court held, inter alia:
3. That the Temporary Custody of the
minor child is hereby awarded as set forth in
the following schedule:
a. The Plaintiff and the paternal
family of the minor child shall have Temporary
Custody of the minor child during the period
beginning with the entry of this Order until
6:00 p.m. Pacific Standard Time, September 2,
2001. The Plaintiff shall arrange for the
minor child to be transported to the State of
Washington and delivered to the Defendant no
later that 6:00 p.m. Pacific Standard Time,
September 2, 2001. During this period, the
Plaintiff shall not be left alone with the
minor child at any time.
b. The Defendant and the maternal
family of the minor child shall have Temporary
Custody of the minor child during the period
beginning at 6:00 p.m. Pacific Standard Time,
September 2, 2001 until 9:00 a.m. Eastern
Standard Time, October 9, 2001. . . .
. . . .
6. That the Plaintiff and the Defendant
shall each arrange for a home study to be
conducted of their respective homes, as well
as the home of the minor child's paternal
grandparents, no later than October 9,
2001. . . .
(Emphasis added.) Prior to that order, the trial court had found
that intervenors lived in close proximity to plaintiff and, having
already established a loving relationship with C.S. as her natural
paternal grandparents, would be assisting plaintiff in caring for
the minor child.
A hearing for permanent custody was held on 25 October 2001.
By order entered 10 January 2002, defendant was awarded permanent
custody of C.S., but the court concluded, inter alia, “[t]hat the
Plaintiff and/or his parents shall be entitled to contact the minor
child [by telephone] two times each week for thirty (30) minutes
[sic] intervals . . . .” (Emphasis added.) However, all
communication with intervenors ceased when plaintiff was
unexpectedly killed on 26 September 2002.
Thereafter, intervenors filed a “Motion to Intervene, Motion
to Show Cause, and Motion to Modify Pervious Order” on 15 October
2002. By their motions, intervenors sought to formally be made
parties to the child custody action, have defendant show cause as
to why she should not be held in contempt for failing to allow them
telephonic visitation with C.S. as per the previous custody order,and obtain greater visitation rights. In response, defendant
sought dismissal of intervenors' motions (1) pursuant to Rule
12(b)(6) of the North Carolina Rules of Civil Procedure and/or (2)
on the basis that the trial court lacked subject matter
jurisdiction pursuant to Sections 50-13.3 and 50-13.5(j) of the
North Carolina General Statutes.
The motions were heard on 5 November 2002. As a result, the
trial court denied defendant's motions after concluding intervenors
had actually been made de facto parties to the child custody action
when they were awarded temporary custody and telephonic visitation
in the previous orders before plaintiff's death. Intervenors were
thus allowed to intervene in the action, and defendant was found in
criminal contempt for denying them telephonic visitation with C.S.
on six different occasions. The trial court also modified
intervenors visitation with C.S. on the grounds of substantial
change in circumstances. Defendant appeals.
I.
[1] By defendant's first assignment of error she argues the
trial court erred in denying her motion to dismiss intervenors'
motions regarding visitation with C.S. We disagree.
The word “custody” is generally “deemed to include custody or
visitation or both.” N.C. Gen. Stat. § 50-13.1(a) (2003). Under
limited circumstances, grandparents have standing to sue for
visitation of their grandchild.
Montgomery v. Montgomery, 136 N.C.
App. 435, 436, 524 S.E.2d 360, 362 (2000). As articulated by this
Court in
Montgomery, those limited circumstances are as follows:
First, N.C.G.S. § 50-13.2(b1) states that
“an
order for custody of a minor child mayprovide visitation rights for any grandparent
of the child as the court in its discretion
deems appropriate”.
Second, N.C.G.S. § 50-13.2A, entitles a
grandparent to seek visitation when the child
is “
adopted by a stepparent or a relative of
the child where a substantial relationship
exists between the grandparent and the child.”
Third, N.C.G.S. § 50-13.5(j) entitles a
grandparent to seek visitation “[i]n 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”.
Finally, N.C.G.S. § 50-13.1(a) entitles a
grandparent to “institute an action or
proceeding for custody” of their grandchild.
However, . . . grandparents are not entitled
to seek visitation under N.C.G.S. § 50-13.1(a)
when there is no ongoing custody proceeding
and the grandchild's family is intact.
Id. at 436-37, 524 S.E.2d at 362 (citations omitted).
In the case
sub judice, defendant contends the trial court
erred in dismissing her motions because (1) intervenors lacked
standing to seek visitation under Section 50-13.1(a) since there
was no ongoing custody proceeding and the grandchild's family was
intact, and (2) the trial court no longer retained jurisdiction on
the issue of custody following the death of plaintiff based on our
Supreme Court's interpretation of Section 50-13.5(j).
See McIntyre
v. McIntyre, 341 N.C. 629, 633, 461 S.E.2d 745, 748 (1995) (holding
the trial court retains jurisdiction over issues of custody and
visitation “until the death of one of the parties”);
Fisher v.
Gaydon, 124 N.C. App. 442, 445, 477 S.E.2d 251, 253 (1996) (holding
that a single parent living with his or her child is an “'intact
family'”). However, while it is clear that statutory authority and
case law would support defendant's contention if the issue ofgrandparent visitation and/or custody had been raised for the first
time when intervenors filed their motions, such was not the case
here because the trial court had already awarded temporary custody
and visitation to them in previous orders.
In the temporary custody order, the trial court awarded
“Plaintiff and the paternal family of the minor child,” temporary
custody of C.S., as well as ordered a home study of intervenors'
home after finding that plaintiff's parents would be assisting him
in the care and maintenance of the child. Thereafter, a permanent
custody order was entered awarding defendant permanent custody of
C.S., but granting “Plaintiff and/or his parents” telephonic
visitation with the child twice a week. Although not originally
parties to the custody action, as the
paternal family and
parents
of plaintiff, intervenors were initially awarded temporary custody
and subsequently awarded permanent visitation rights by those
orders, which were entered during the underlying custody dispute
and before plaintiff's death. The trial court was well within its
discretion to issue those orders pursuant to Section 50-13.2(b1)
(2003), and defendant never appealed either order resulting in each
becoming a standing order of the court.
Moreover, after a trial court has awarded custody to a person
who was not a party to the action or proceeding, this Court has
held that
it would be proper and advisable for that
person to be made a party to the action or
proceeding to the end that such party would be
subject to orders of the court. . . . [T]his
may be done even after judgment and by the
appellate court when the case is appealed.
In re Branch, 16 N.C. App. 413, 415, 192 S.E.2d 43, 45 (1972)
(holding that a trial court was authorized to award custody to the
father on the basis of change of conditions even though the father
had not filed a pleading asking for custody of his children). By
filing a motion to intervene in the matter, intervenors were simply
requesting to be formally recognized as parties to a child custody
action in which they had already been awarded visitation rights.
Therefore, the trial court did not err in granting their motion to
intervene even after the order determining permanent custody of
C.S. was entered.
Nevertheless, defendant contends that even if intervention by
intervenors was proper, her motion to dismiss should have been
granted because intervenors failed to show that the previous
custody order required modification on the basis that she acted in
a manner inconsistent with the best interests of the child.
Specifically, defendant asserts that the trial court erred in
modifying the previous custody order solely on the basis that she
ceased intervenors' telephone contact with C.S. Yet, as stated
earlier, the previous custody order had already determined that
defendant be awarded permanent custody of C.S. and intervenors be
awarded telephonic visitation. In instances where a custody order
has already been entered as to the parties, that order “may be
modified or vacated at any time, upon motion in the cause and a
showing of changed circumstances by either party . . . .” N.C.
Gen. Stat. § 50-13.7(a) (2003).
The trial court made numerous findings of fact justifying
substantially modifying C.S.'s visitation with intervenors on thebasis of substantial change in circumstances. Those findings were
summarized a follows:
a. The Defendant has recklessly disregarded
the minor child's best interest by
violating the Court's previous Orders by
not allowing telephone visitation with
the Intervenors as Court ordered.
b. That the Defendant's actions have placed
the minor child at a substantial risk of
a negative impact both presently and in
the future.
c. That the Intervenors were previously
granted and assured phone
contact/visitation with the minor child;
however, since the Plaintiff's untimely
death this visitation has been denied and
it is most likely that any physical
visitation will likewise be denied unless
Court ordered.
d. That the Intervenors have had a
continuous and extensive loving
relationship with the minor child since
the entry of the previous custody Order.
e. That the Intervenors have been active in
the minor child's life to the extent that
they have taken advantage of every
available opportunity to visit with and
care for the minor child since the entry
of the previous custody Order.
Despite defendant's assertion to the contrary, the findings clearly
show that the trial court's basis for modifying the previous
custody order was based on more than just defendant ceasing
intervenors' telephone contact with C.S. Defendant does not take
issue with these findings, making them binding on appeal. Thus,
the trial court did not err in denying defendant's motion to
dismiss and subsequently modifying the previous custody order to
award intervenors additional visitation privileges on the grounds
of a substantial change in circumstances because “[t]he bestinterests of the children are and have always been the polar star
in determining custody actions as well as visitation rights.”
Hedrick v. Hedrick, 90 N.C. App. 151, 156, 368 S.E.2d 14, 17
(1988).
II.
[2] Finally, defendant argues the trial court erred in finding
the defendant guilty of criminal contempt. We disagree.
“An order providing for the custody of a minor child is
enforceable by proceedings for civil contempt, and its disobedience
may be punished by proceedings for criminal contempt . . . .” N.C.
Gen. Stat. § 50-13.3(a) (2003). “It is well settled that in
contempt proceedings the trial court's findings of fact are
conclusive on appeal when supported by any competent evidence and
are reviewable only for the purpose of passing on their sufficiency
to warrant the judgment.”
Glesner v. Dembrosky, 73 N.C. App. 594,
597, 327 S.E.2d 60, 62 (1985).
In the instant case, defendant does not argue that there was
insufficient competent evidence to warrant her being found guilty
of criminal contempt, only that the trial court lacked subject
matter jurisdiction to do so because intervenors lacked standing to
file motions in an action to which they were not parties and could
not be parties due to plaintiff's death. However, once again,
intervenors did not lack standing to move for a show cause hearing
as to why defendant should not be held in civil or criminal
contempt for violating the order awarding telephonic visitation
with C.S. prior to plaintiff's death. The trial court found that
defendant “willfully, unlawfully and without legal excuse failed toabide” by that order. “The integrity of the court system and its
judgments demands that parties may not cease compliance with
judgments at whatever times they may see fit.”
Id. at 598, 327
S.E.2d at 63. Accordingly, the trial court did not err in denying
defendant's motion to dismiss intervenors' motion to show cause,
and ultimately concluding defendant was guilty of criminal
contempt.
Affirmed.
Chief Judge MARTIN and Judge THORNBURG concur.
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