An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-99

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

SAUNDRA ADAMS and JEFFREY L.
MOONIE,
            Plaintiffs,

    v .                             Mecklenburg County
                                    No. 99 CVD 18621
RAE LAMAR WIGGINS (a/k/a RAE
LAMAR CARRUTH),
            Defendant.

    Appeal by movant Theodry Carruth from order entered 2 August 2004 by Judge Rebecca T. Tin in Mecklenburg County District Court. Heard in the Court of Appeals 21 September 2005.

    Billie R. Ellerbe and W. Frank Porter, for plaintiff appellees.

    No brief filed for defendant.

    Law Office of Tamela T. Wallace, P.A., by Tamela T. Wallace, for movant-appellant.


    McCULLOUGH, Judge.

    Movant Theodry Carruth appeals from the denial of her motion to intervene and the dismissal of her motion requesting additional visitation privileges with her paternal grandchild. We affirm the denial of the motion to intervene, vacate the dismissal of the motion for visitation because it is premised upon an erroneous ground, and remand this case to the district court for entry of a corrected order.

Facts
    The present case concerns custody and visitation rights to the minor child Chancellor Adams. Chancellor's mother is the late Cherica Adams. His biological father is defendant Rae Lamar Wiggins, who is also known as Rae Carruth (hereinafter “Mr. Carruth”). Chancellor's maternal grandparents are plaintiff Saundra Adams (hereinafter “Ms. Adams”) and plaintiff Jeffrey Moonie (hereinafter “Mr. Moonie”). Movant Theodry Carruth (hereinafter “Ms. Carruth”) is Mr. Carruth's mother and Chancellor's paternal grandmother. Chancellor, Ms. Adams, Mr. Moonie, and Mr. Carruth are residents of North Carolina. Ms. Carruth resides in California.
    Chancellor was born on 16 November 1999 via an emergency Caesarian section. His mother died soon thereafter from injuries inflicted by an attacker with whom Mr. Carruth had conspired to commit murder. Chancellor suffers from cerebral palsy and is a special needs child as a result of the attack on his pregnant mother. Mr. Carruth was subsequently convicted in North Carolina superior court of conspiracy to commit murder and using a firearm with intent to destroy an unborn child (Chancellor), and he was sentenced to serve a minimum of 196 months in prison.
    Within one month of Chancellor's birth, Ms. Adams filed a suit for child custody. She was immediately granted emergency custody and, thereafter, temporary primary legal and physical custody of Chancellor. In October 2002 Ms. Adams, Mr. Moonie, and Mr. Carruth agreed to entry of a consent order which awarded Ms. Adamspermanent legal and physical custody of Chancellor and permitted Mr. Moonie to visit with the child “whenever he and [Ms. Adams] . . . agree[d].
    In May of 2004, Ms. Carruth filed a motion to intervene and a motion to modify the October 2002 order establishing custody of, and visitation with, Chancellor. The motion to intervene alleged that Ms. Carruth was entitled to intervention of right because of rights granted to her under sections 50-13.2 and 50-13.5(j) of the North Carolina General Statutes. In the alternative, Ms. Carruth sought to be permitted intervention in the trial court's discretion.
    Ms. Carruth's motion to intervene alleged that
    [her] repeated requests to spend time with [Chancellor] have been met with opposition and resistance by [Ms. Adams]. Neither [Ms. Carruth] nor her family, have had the opportunity to develop a relationship with the minor child. [Ms. Carruth] believes that the minor child would benefit from meaningful interactions between she and her family.

In the motion to modify visitation, Carruth alleged that the circumstances surrounding Chancellor's custody and visitation had changed as follows:
            a.    Since the entry of the [October 2002] Order, [Mr. Carruth] appealed his [criminal] case to the North Carolina Court of Appeals and the North Carolina Supreme Court. The Court of Appeals denied the Defendant's appeal and the North Carolina [Supreme] Court . . . has refused to grant certiorari.

            b.    [S]ince the entry of the [October 2002] Order [Ms. Carruth] has made repeated requests to visit with the minor child both orally and in writing. [Ms. Adams] has not afforded [Ms. Carruth] an opportunity to spend time with the minor child anddevelop a meaningful relationship with the minor child.

    c.    [Ms. Carruth] has expressed a desire to spend time and bond with the minor child. She has a direct and significant interest in the well being of her grandson.

            d.    [Ms. Carruth's] repeated requests to spend time with the minor child have been met with opposition and resistance by [Ms. Adams]. Neither [Ms. Carruth] nor her family, have had the opportunity to develop a relationship with the minor child and believe that the minor child would benefit from meaningful interactions between she and her family.

            e.    [Ms. Carruth] and her family have made efforts to reach out to [Ms. Adams] by sending clothing and items for the minor child.

            f.    During one visit with the minor child [Ms. Adams] brought the minor child to the home of a friend of [Ms. Carruth]. [Ms. Adams] attempted to hamper the visit by attempting to engage [Ms. Carruth] in an argument. Furthermore, [Ms. Adams] demanded that [Ms. Carruth] not take any pictures of the minor child. After [Ms. Adams] left the residence, [Ms. Carruth] was able to have a positive and enjoyable visit with the minor child.

            g.    On or about September, 2003, [Ms. Carruth] came to Charlotte to visit with the minor child. [Ms. Adams] brought Chanellor [sic] to visit with [Ms. Carruth] in her hotel room. [Ms. Adams] and [Ms. Carruth] came to an agreement that they would attempt to set aside their differences for Chancellor. [Ms. Carruth] was encouraged that they could work together for the minor child.

            h.    Despite their efforts to establish a relationship with the minor child, in October, 2003, [Ms. Adams] appeared as a guest on the “Oprah Winfrey [S]how[”] and stated, “she had not heard” from the [Wiggins/Carruth] side of the family.

            i.    In December, 2003, [Ms. Carruth] met [Ms. Adams] at a restaurant and attempted to have dinner with the minor child. [Ms. Adams] refused to leave the table and allow [Ms. Carruth] to spend time alone with the child.
            j.    Since the entry of the [October 2002] Order, upon information and belief, [Mr. Moonie] has moved away from Charlotte and has not spent a significant amount of time with the minor child.

            k.    [Mr. Carruth] has made attempts to establish a relationship with [Ms. Adams] and the minor child.

            l.    [Ms. Adams] has responded to [Mr. Carruth's] efforts in kind by sending him letters and a few pictures.

            m.    Through letters [Ms. Adams] has acknowledged that she believes that it is important for [Mr. Carruth] and his family to be involved with Chancellor. She has sent him pictures and other keepsakes regarding the minor child.

            n.    [Ms. Adams] told [Mr. Carruth] that she believes that he should be apart [sic] of Chancellor's life. She has even stated that she would bring the child to see him at the Nash County Correctional Facility. However, she stated that before she would be agreeable to bring Chancellor to see him, she wanted him to confess to her to having played some role in the death of her daughter.

            o.    Despite her outward assertions, [Ms. Adams] has taken the position through her actions, that she has not fostered a relationship with [Mr. Carruth] via his family and has thereby acted inconsistently with her rights and responsibilities as a biological parent [sic].

            p.    . . .[Ms. Carruth] is in a better financial position to make monthly trips to the state of North Carolina for the purpose of visiting with the minor child and facilitating a relationship between the minor child and [Mr. Carruth].

            q.    Without the Court's intervention, [Ms. Carruth] is fearful that she will be denied of the opportunity to bond with the minor child.

Ms. Carruth's motion to modify visitation referred to these events as a “substantial change in circumstances.”
    Thereafter, Ms. Adams and Mr. Moonie filed separate motions to dismiss Ms. Carruth's motion to intervene pursuant to Rule 12(b)(6)of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief could be granted. There were two essential grounds for the motions to dismiss. Primarily, it was argued that Ms. Adams and Chancellor were an “intact family,” as that term has been defined by our courts and that Ms. Carruth's district court filings failed to make a requisite averment to the contrary. As an alternative, it was argued that Ms. Carruth could not intervene in the action to seek visitation because she had not alleged a substantial change in circumstances affecting Chancellor as she was required to do by the statute upon which she was relying for visitation privileges.
    After hearing arguments, the district court entered an order denying Ms. Carruth's motion to intervene. The primary basis for this ruling was Ms. Carruth's failure to plead that Chancellor was not in an intact family. However, the order also noted that Ms. Carruth had failed to plead a substantial change of circumstances affecting Chancellor's welfare and had thereby failed to allege a claim under the statute upon which any right to intervene rested. In addition to denying the motion to intervene, the district court's order dismissed the motion to modify custody. Ms. Carruth now appeals from the denial of the motion to intervene and the dismissal of the motion to modify visitation.
I.
    In her first argument on appeal, Ms. Carruth contends that the trial court erred by denying her motion to intervene. As an alternative, Ms. Carruth alleges an abuse of discretion in thedenial of intervention. We discern neither error nor an abuse of discretion.
    As an initial matter, we note that Ms. Carruth's motion to intervene relied upon subsections (a)(2) and (b)(2) of Rule 24 of the North Carolina Rules of Civil Procedure.   (See footnote 1)  Our consideration is thus limited to determining whether intervention was mandated by either or both of these subsections. See N.C. R. App. P. 10(b)(1) (2003) (noting that an issue must be presented to the trial court to be preserved for appeal); Henderson v. LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142, 147 (noting that our appellate courts will not pass upon a legal theory not argued before the trial court), disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991).
Intervention of Right
    Rule 24(a)(2) of the North Carolina Rules of Civil Procedure, which affords intervention of right to a covered party, provides that a timely applicant
        shall be permitted to intervene in an action . . . [w]hen the applicant claims an interest relating to the . . . transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) (2003). This Court's standard of review for the denial of intervention as of right is de novo. Harvey Fertilizer & Gas Co. v. Pitt County, 153 N.C. App. 81, 86, 568 S.E.2d 923, 926 (2002).
    In her filing with the district court, Ms. Carruth asserted that Rule 24(a)(2) conferred upon her “an unconditional right to intervene in that [she], as the paternal grandmother of the minor child [had] an interest relating to the minor child pursuant to [sections] 50-13.5 and 50-13.2 [of the North Carolina General Statutes].” Accordingly, any entitlement to intervene hinged upon whatever rights she had by virtue of these statutes.
    Section 50-13.2 of the General Statutes allows grandparents to receive visitation privileges as part of an ongoing custody dispute. N.C. Gen. Stat. § 50-13.2(b1) (2003). Given that Ms. Adams' custody of Chancellor was established, Ms. Carruth clearly had no right to visitation under section 50-13.2, and no corresponding right to intervene in pursuit of such visitation.
    Therefore, Ms. Carruth's alleged right to intervene is tied to section 50-13.5(j) of the General Statutes, which provides that
        [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, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparentof a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.

N.C. Gen. Stat. § 50-13.5(j) (2003). Ms. Carruth's reliance on this section as a vehicle for intervention required, at minimum, that she have a viable visitation claim under it. Accordingly, if she failed to state a claim for visitation, she also failed to establish intervenor-of-right status.
    To state a claim for visitation under section 50-13.5(j), a grandparent must allege a change in circumstances, which is sufficient under section 50-13.7 of the General Statutes to justify disturbing a previously entered custody order. N.C. Gen. Stat. § 50-13.5(j); see Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (noting that a claim cannot withstand a motion to dismiss if, inter alia, “the [filing] on its face reveals the absence of facts sufficient to make a good claim . . . or . . . the [filing] discloses some fact that necessarily defeats the . . . claim.”). Under section 50-13.7 of the General Statutes, “a trial court may order a modification of an existing child custody order . . . if the party moving for modification shows that a '“substantial change of circumstances affecting the welfare of the child”' warrants a change in custody.” Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d 250, 253 (2003). “[A]n adverse effect upon a child as the result of a change in circumstances . . . will support a modification of a prior custody order. [Likewise], a showing of a change in circumstances that is, or is likely to be,beneficial to the child may also warrant a change in custody.” Pulliam v. Smith, 348 N.C. 616, 620, 501 S.E.2d 898, 900 (1998).
    Further, at least in cases in which the parental right to determine the association of her child is implicated, a grandparent seeking visitation under section 50-13.5(j) must allege the absence of an “intact family.” Eakett v. Eakett, 157 N.C. App. 550, 554, 579 S.E.2d 486, 489 (2003). The lack of an intact family means that “the child's family is already undergoing some strain on the family relationship, such as an adoption or an ongoing custody battle.” Id. The archetype of an intact family is the situation in which “natural parents have legal custody of their children and are living with them.” McIntyre v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995). However, an intact family may also exist where “a single parent [is] living with his or her child,” 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); or where a natural parent has remarried and “[the] natural parent, step-parent and child [are] living in a single residence,” Penland v. Harris, 135 N.C. App. 359, 361, 520 S.E.2d 105, 107 (1999). Neither our Supreme Court nor this Court has addressed whether the intact family concept encompasses a situation in which a biological grandparent has custody of, and is living with, her unadopted grandchild.
    In the instant case, the district court proceedings and the district court's order mainly addressed whether Ms. Carruth was entitled to intervene by virtue of section 50-13.5(j) where she hadnot alleged the absence of an intact family. The district court determined that Ms. Carruth could not proceed under section 50- 13.5(j) without such an allegation and that, therefore, this statute afforded her no right of intervention. However, the trial court also determined, in the alternative, that Ms. Carruth's reliance on section 50-13.5(j) as a vehicle for intervention was misplaced because she had “fail[ed] to allege a substantial change in circumstances warranting a modification of visitation.” We conclude that this latter determination was correct. This conclusion makes it unnecessary for us to address the “intact family” issue.
    Taking the motion to intervene and motion to modify visitation in the light most favorable to Ms. Carruth, these documents indicated that Ms. Adams was not as cooperative as Ms. Carruth would have preferred in allowing visitation with Chancellor, but that Ms. Adams did work with Ms. Carruth to facilitate visitation. There was no allegation that Ms. Carruth and Chancellor shared a meaningful relationship such that further visitation was appropriate, and it was clear from Ms. Carruth's filings that she had not sought to visit Chancellor often. Moreover, the motion to modify was critical of Ms. Adams' position that Mr. Carruth should be honest about his role in causing Chancellor's injuries and the death of Chancellor's mother, which is especially disconcerting given that the motion to modify also indicated that one of Ms. Carruth's motives in seeking the modification was to “facilitat[e] a relationship between [Chancellor] and [Mr. Carruth].” AlthoughMs. Carruth's motion to modify referred to the events specified therein as “a substantial change in circumstances,” the substance of her pleading indicated that no substantial change in circumstances had occurred.
    By failing to plead a substantial change of circumstances, Ms. Carruth failed to plead a claim for visitation under section 50- 13.5(j). Accordingly, she necessarily failed to demonstrate that this statute vested her with the right to intervene pursuant to Rule 24(a)(2) of the North Carolina Rules of Civil Procedure. As such, the trial court properly denied her motion to intervene as a matter of right.
Permissive Intervention
    Rule 24(b)(2), which affords permissive intervention to a covered party, provides that a timely applicant “may be permitted to intervene in an action” “[w]hen an applicant's claim or defense and the main action have a question of law or fact in common.” N.C. Gen. Stat. § 1A-1, Rule 24(b)(2) (2003). This Court reviews the denial of permissive intervention for whether the trial court's decision constitutes an abuse of discretion. Harvey Fertilizer & Gas Co., 153 N.C. App. at 86, 568 S.E.2d at 926. In the instant case, we are unpersuaded that the district court abused its discretion by refusing to permit Ms. Carruth to intervene under Rule 24(b)(2).
    The corresponding assignments of error are overruled.
II.
    In her second argument on appeal, Ms. Carruth challenges the trial court's consideration and dismissal of her motion to modify visitation. Before ruling on the motion to intervene, the trial court placed Ms. Carruth under oath and asked her whether she believed that Mr. Carruth was involved in the attack on Chancellor's mother, to which Ms. Carruth replied that she did not. Further, the trial court apparently dismissed Ms. Carruth's motion to modify custody for failure to state a claim upon which relief could be granted.
    In considering Ms. Carruth's motion to intervene, it was appropriate for the trial court to consider whether the motion to modify stated a claim for relief under section 50-13.5(j) inasmuch as a failure in this regard necessarily denied her intervenor-of- right status. Ante, slip op. at 11-12. However, given that the motion to intervene was denied, Ms. Carruth was not a party to the custody and visitation proceedings concerning Chancellor. As such, the trial court should not have considered evidence pertinent to the motion to modify or ruled upon whether the motion to modify set forth a claim for visitation. Rather, the trial court should have dismissed the motion to modify as moot. See State ex rel. Easley v. Philip Morris, Inc., 144 N.C. App. 329, 334-35, 548 S.E.2d 781, 784 (determining that a substantive motion was moot “because intervenors [were] not parties to the underlying case”), disc. review denied, 354 N.C. 228, 554 S.E.2d 831 (2001); In re Transportation of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 558-59 (1991) (“A court . . . can adjudicate a controversyonly when a party presents the controversy to it, and then, only if it is presented in the form of a proper pleading. . . . [T]here must be some appropriate application invoking the judicial power of the court with respect to the matter in question.”).
    Accordingly, the trial court erred by hearing evidence on the motion to modify and by dismissing the motion to modify for failure to state a claim. The dismissal of Ms. Carruth's motion to modify is vacated, and this matter is remanded for entry of a corrected order which dismisses the motion to modify as moot in light of the denial of the motion to intervene.
    For the foregoing reasons, the trial court's order is
    Affirmed in part, vacated in part, and remanded for entry of a corrected order.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).


Footnote: 1
     Especially given that Ms. Carruth relied upon one or more statutes for her alleged right of intervention, it is curious that she did not proceed under Rule 24(a)(1) which grants intervenor-of-right status where a statute so requires and Rule 24(b)(1) which permits intervention where a statute grants a conditional right to participate in an action. N.C. Gen. Stat.  § 1A-1, Rule 24(a)(1), (b)(1) (2003).

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