An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006
ETHEL MARIE BEST, ADMINISTRATIX
OF THE ESTATE OF KENDRICK RASHON
No. 04 CVS 416
KENNETH RAY MOODY,
Appeal by defendant from order entered 2 March 2005 by Judge
Thomas D. Haigwood in Wilson County Superior Court. Heard in the
Court of Appeals 9 February 2006.
Taylor Law Office, by W. Earl Taylor, Jr., for plaintiff-
Farris and Farris, P.A., by Joseph N. Quinn, Jr., for
Kenneth Ray Moody (defendant) appeals from the trial court's
order finding that he forfeited all rights to intestate succession
of any part of the estate of Kendrick Rashon Best (decedent). We
Plaintiff-mother and defendant-father are the unmarried
natural parents of decedent. Decedent was born to the parties on
21 September 1985. Decedent died as a result of injuries from an
automobile accident on 3 February 2002, unmarried and without
children. Plaintiff was appointed as the administratrix ofdecedent's estate. Plaintiff filed a civil action on behalf of
decedent's estate for decedent's wrongful death.
On 10 March 2004, plaintiff filed a complaint for declaratory
judgment in Wilson County Superior Court to determine if defendant
is a person entitled to recover a portion of the proceeds from the
wrongful death action. The trial court found as follows:
9. Kendrick Rashon Best never lived in the
household of the defendant.
10. The defendant did not know the date of
birth of Kendrick Rashon Best.
11. The defendant did not know that Kendrick
Rashon Best was a junior in high school at the
time he was killed.
12. The defendant did not know any of the
teachers of Kendrick Rashon Best at the time
of his death.
13. The defendant had received Social
Security Disability since 1988 and had
attempted to work on an off and on basis.
14. The Social Security Administration
determined that payments to Ethel Marie Best
for Kendrick Rashon Best on behalf of the
defendant should have been stopped in July,
1999 and that Ms. Best was required to pay
back $6,073.00 of monies received for Kendrick
15. Since July, 1999, the defendant provided
no substantial financial support for Kendrick
16. Since 1988, the defendant, other than
Social Security Disability Benefits, provided
no substantial support for Kendrick Rashon
17. The defendant did not pay any monies
towards the funeral of Kendrick Rashon Best.
18. There was never a court order awarding or
denying custody or visitation of Kendrick
Rashon Best to the defendant.
19. Prior to receiving Social Security
Disability, the defendant was $3,387.00 behind
in court ordered child support.
20. The defendant willfully neglected and
refused to perform the natural and legal
obligations of parental care and support.
21. The defendant willfully withheld his
presence, his care, and failed to exercise
opportunities to display parental affection
for Kendrick Rashon Best.
22. The defendant willfully failed to lend
support and maintenance to Kendrick Rashon
23. The defendant willfully failed to
establish a father-son relationship with
Kendrick Rashon Best and willfully failed to
take advantages of opportunities to exercise
meaningful visitation with Kendrick Rashon
Best and become a presence in his life.
The trial court concluded as a matter of law that defendant
willfully abandoned the care and maintenance of Kendrick Rashon
Best prior to his death pursuant to N.C.G.S. 31A-2. The court
ordered that defendant shall lose all rights to intestate
succession of any part of the Estate of Kendrick Rashon Best
including any right to participate in the wrongful death recovery
on behalf of the Estate of Kendrick Rashon Best. Defendant
The issue on appeal is whether the trial court erred in
concluding defendant willfully abandoned the care and maintenanceof decedent prior to his death and thereby ordering defendant shall
lose all rights to the estate of decedent.
III. Standard of Review for Non-Jury Trial
In an appeal from a judgment entered in a
non-jury trial, our standard of review is
whether competent evidence exists to support
the trial court's findings of fact, and
whether the findings support the conclusions
of law. The trial judge acts as both judge
and jury and considers and weighs all the
competent evidence before him. The trial
court's findings of fact are binding on appeal
as long as competent evidence supports them,
despite the existence of evidence to the
contrary. When competent evidence supports
the trial court's findings of fact and the
findings of fact support its conclusions of
law, the judgment should be affirmed in the
absence of an error of law.
Resort Realty of the Outer Banks, Inc. v. Brandt, 163 N.C. App.
114, 117, 593 S.E.2d 404, 407-408 (2004) (internal citations and
quotation marks omitted) (emphasis in original).
IV. Willful Abandonment
Defendant asserts the trial court erred in ordering defendant
to forfeit all rights to the estate of decedent and argues no
evidence shows defendant willfully abandoned decedent pursuant to
N.C. Gen. Stat. § 31A-2 (2003). We disagree.
N.C. Gen. Stat. § 31A-2 (2003) provides:
Any parent who has wilfully abandoned the care
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 continued the
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.
The proceeds of a settlement for wrongful death of a child are
subject to the provisions of G.S. 31A-2 even though such proceeds
are not assets of the estate of the deceased child. Lessard v.
Lessard, 77 N.C. App. 97, 100, 334 S.E.2d 475, 477 (1985), aff'd,
316 N.C. 546, 342 S.E.2d 522 (1986) (citing Williford v. Williford,
288 N.C. 506, 219 S.E.2d 220 (1975)).
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
. . .
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.
Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)
Competent evidence in the record shows the trial court's
findings of fact are supported by competent evidence even though
other competent evidence in the record would support contrary
findings. Resort Realty of the Outer Banks, Inc., 163 N.C. App. at
117, 593 S.E.2d at 407-408 (2004). Our Supreme Court considered the issue of wilful abandonment
in In re Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005). The trial
court in In re Lunsford concluded the defendant was precluded from
inheriting from the decedent under N.C. Gen. Stat. § 31A-2 on the
ground that he had wilfully abandoned the decedent during her
minority. Id. at 384, 610 S.E.2d at 368. The trial court made the
12. From the date of separation of [the
petitioner] and [the respondent], [the
respondent] visited with [the decedent]
sporadically on his own initiative.
13. Sometimes, . . . [the respondent's]
mother, who had an established relationship
with [the decedent], occasionally picked up
her granddaughter for a visit, and . . . [the
respondent] would occasionally spend time with
his daughter then.
14. As [the decedent] grew older, either [the
decedent] or [the respondent] would initiate
phone calls, visits, or other relational
15. These limited visits between [the
decedent] and [the respondent] usually
coincided with lulls in [the respondent's]
alcoholism and/or an increase in the emotional
stability of his private life.
16. Just before [the decedent's] untimely
death, [the respondent] attended [her] high
school graduation and both had initiated plans
for furthering their father-daughter
17. Throughout [the decedent's] minority,[the
respondent] occasionally offered to pay [the
petitioner] for some of the care and
maintenance of [the decedent]. However, [the
petitioner] refused all such offers.
18. At one point, after one such request, [the
petitioner] did suggest [the respondent] buy
[the decedent] some clothes [the decedent]wanted, to which [the respondent] readily
Id. at 385, 610 S.E.2d at 368-69. Our Supreme Court held the trial
court's findings of fact supported its conclusion that the
respondent wilfully abandoned the care and maintenance of the
decedent under N.C. Gen. Stat. § 31A-2. Id. at 387-88, 610 S.E.2d
at 370. The Court stated:
Even assuming that [the decedent] refused to
accept [the respondent's] occasional offers of
financial assistance, the trial court could
reasonably have concluded that [the
respondent's] sporadic contacts with his
daughter over a seventeen-year period failed
to reflect the degree of presence, love,
care, and opportunity to display filial
affection that defines non-abandoning
Id. at 388, 610 S.E.2d at 370.
The fact that the respondent and the decedent had some
relationship in Lunsford did not preclude our Supreme Court from
upholding the trial court's conclusion that the respondent had
wilfully abandoned the decedent. Id. at 391, 610 S.E.2d at 372.
[A]bandonment requires neither continuous absence nor an utter
lack of concern on the part of the abandoning parent. . . . [A]
child's physical and emotional needs are constant, and a parent's
duties to care for and maintain a child cannot be discharged on an
ad hoc, intermittent basis. Id. at 390-91, 610 S.E.2d at 372
Our Supreme Court's decision in In re Lunsford controls the
result in this case. Even though competent evidence in the record
shows defendant and decedent maintained contact and somerelationship, the trial court is not precluded from concluding
defendant wilfully abandoned his son. Id. at 391, 610 S.E.2d at
372. The trial court's findings of fact are supported by competent
evidence in the record, despite other competent evidence being
presented that would support a contrary conclusion. Resort Realty
of the Outer Banks, 163 N.C. App. at 117, 593 S.E.2d at 407-408
(2004). We are bound by the trial court's findings of fact. Id.
In light of our Supreme Court's decision in In re Lunsford, the
trial court's findings of fact support its conclusion that
defendant wilfully abandoned decedent and is not entitled to share
in decedent's estate. This assignment of error is overruled.
Even though respondent presented competent evidence to support
a conclusion to the contrary, the trial court's findings of fact
are supported by competent evidence in the record. The trial
court's findings of fact support its conclusions of law. The trial
court's order is affirmed.
Judges HUDSON and GEER concur.
Report per Rule 30(e).
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