Workers' Compensation_deceased child_no willful abandonment by parent
A parent (the father) did not willfully abandon his child after his divorce, and was eligible
to receive workers' compensation death benefits, where there were regular visits, gifts, cards,
telephone contacts, and physical and verbal affection, and the father made all of his child support
payments in a timely manner, even when there was a period of disagreement in which the child
did not visit the father. N.C.G.S. § 97-40.
Archibald Law Office, by C. Murphy Archibald, for plaintiff-
mother-appellant.
Shawna Davis Collins, for plaintiff-father-appellee.
Jones, Hewson & Wollard, by R.G. Spratt, III, for defendant-
appellees.
WYNN, Judge.
Under section 97-40 of the North Carolina General Statutes, a
parent who willfully abandons the care and maintenance of his or
her child is not eligible to receive workers' compensation death
benefits. In this case, the mother of a deceased son covered under
the Workers' Compensation Act, contends that the full Commission
erroneously found that the father did not willfully abandon his
son. Because there was competent evidence to support the full
Commission's findings of fact that the father regularly visited andcommunicated with his son, sent him cards and gifts, and made all
his child support payments in a timely manner, we affirm the full
Commission's conclusion that the father did not abandon his son.
On 1 September 2000, Richard Dell Kelly died as a result of
the injuries he sustained from an accident in a vehicle owned by
his employer Defendant Price Brothers, Inc. Richard died intestate
leaving his mother (Ruth D. Rhodes) and father (Carson L. Kelly) as
his sole surviving lineal heirs.
Defendants acknowledged that Richard's death was compensable
under the Workers' Compensation Act but have not paid the death
benefits due to a dispute between the parents as to who is entitled
to receive the benefits. At a hearing before Deputy Commissioner
Adrian Phillips, Ms. Rhodes asserted that Mr. Kelly was “not
entitled to any death benefits because his behavior after the
parents' divorce constitutes abandonment of the deceased employee.”
Deputy Commissioner Phillips concluded that the death benefits
should be distributed equally between Ms. Rhodes and Mr. Kelly.
Following the full Commission's affirmance of the opinion and award
of Deputy Commissioner Phillips, Ms. Rhodes appealed to this Court.
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On appeal, Ms. Rhodes argues that the full Commission erred in
(1) denying her motion to add additional evidence to the record and
(2) concluding that Mr. Kelly did not willfully and wrongfully
abandon the care and maintenance of Richard. First, Ms. Rhodes contends that the full Commission erred in
denying her motion to add additional evidence, i.e. a 1986
Separation Agreement and record of child support payments. The
question of whether to take additional evidence is addressed to the
sound discretion of the full Commission, and its decision is not
reviewable on appeal in the absence of a manifest abuse of that
discretion. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 66,
546 S.E.2d 133, 141 (2001). The full Commission did not manifestly
abuse its discretion in denying Ms. Rhodes's motion to add
additional evidence.
Ms. Rhodes also argues that the full Commission erred in
concluding that Carson Kelly did not willfully and wrongfully
abandon the care and maintenance of Richard. We disagree.
This Court's standard for reviewing an appeal from the full
Commission is limited to determining “whether any competent
evidence supports the Commission's findings of fact and whether the
findings of fact support the Commission's conclusions of law.”
Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549,
553 (2000). The full Commission's findings of fact “are conclusive
on appeal when supported by competent evidence,” even if there is
evidence to support a contrary finding, Morrison v. Burlington
Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set
aside on appeal only “when there is a complete lack of competent
evidence to support them[.]” Young v. Hickory Bus. Furniture, 353
N.C. 227, 230, 538 S.E.2d 912, 914 (2000). Section 97-40 of the North Carolina General Statutes prohibits
distribution of death benefit compensation to:
a parent who has willfully abandoned the care
and maintenance of his or her child and who
has not resumed its care and maintenance at
least one year prior to the first occurring of
the majority or death of the child and
continued its care and maintenance until its
death or majority.
N.C. Gen. Stat. § 97-40 (2004). “[T]he analysis of whether a
parent has 'willfully abandoned the care and maintenance' of a
child requires the consideration of numerous factors: the parent's
display of love, care, and affection for the child and the parent's
financial support and maintenance of the child.” Davis v. Trus
Joist MacMillan, 148 N.C. App. 248, 253, 558 S.E.2d 210, 214, disc.
review denied, 355 N.C. 490, 563 S.E.2d 564 (2002).
In her brief, Ms. Rhodes argued that the following assignments
of error were unsupported by any competent evidence:
5. Plaintiff Carson Lydell Kelly visited with
Richard Dell Kelly on a regular basis between
the time of the separation of the parties
until Richard Dell Kelly reached the age of
majority, with the exception of one time
period when Richard Dell Kelly was
approximately fifteen years of age.
6. When Richard Dell Kelly was approximately
fifteen years of age, he and his step-mother,
Shelia Kelly, had a disagreement that lasted
for approximately six to nine months. During
this time period, Richard Dell Kelly did not
go to his father's home to visit; however,
Carson Lydell Kelly kept in contact with his
son on a weekly basis by way of e-mails.
***
8. Plaintiff Carson Lydell Kelly sent cards
and gifts on a regular basis for holidays and
the birthdays of plaintiffs' minor children,as well as visited with the minor children
during the holidays.
Our review of the record on appeal shows there is competent
evidence to support the full Commission's findings of fact.
Morrison, 304 N.C. at 6, 282 S.E.2d at 463. Findings of fact five
and six are supported by Mr. Kelly's testimony that he and Richard
went on a camping trip together when Richard was seventeen. Shelia
Kelly, Mr. Kelly's wife, testified that when Richard was fifteen
years old, they had a disagreement and Richard refused to visit his
father until he was sixteen years old. She stated that following
that argument Richard resumed visitation with his father. Tammy
Kelly, Richard's aunt, testified that during the period Richard did
not visit his father, Richard and Mr. Kelly communicated through
instant message and email once a week. Supporting finding of fact
eight, Shelia Kelly testified that if Richard did not spend a
holiday or birthday with his father, Mr. Kelly sent cards and gifts
to him. Mr. Kelly also testified that he sent a birthday card
every year. We hold that these facts support the full Commission's
findings of fact.
Moreover, the full Commission's findings of fact that Mr.
Kelly visited with Richard on a regular basis, sent him cards and
gifts for holidays and birthdays, maintained telephone contact on
a regular basis, and physically and verbally displayed affection
towards Richard, support the full Commission's conclusion that Mr.
Kelly did not abandon the care of his son. See Davis, 148 N.C.
App. at 253, 558 S.E.2d at 214. Additionally, the full
Commission's finding that Mr. Kelly made all of his child supportpayments in a timely manner and maintained a health insurance
policy on Richard, support the conclusion that Mr. Kelly did not
abandon the maintenance of his son. Id.
Accordingly, we uphold the full Commission's Opinion and Award
which concluded that Mr. Kelly did not willfully and wantonly
abandon the care and maintenance of Richard.
Affirmed.
Judges MCGEE and GEER concur.
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