Converted WP file 051359-1

Appeal by Robert Bzduch, grandfather, from order entered 8 July 2005 by Judge Alonzo B. Coleman, Jr. in Chatham County District Court. Heard in the Court of Appeals 16 May 2006.

    Moody, Williams & Roper, LLP, by C. Todd Roper, for plaintiff- appellee.

    Franklin Law Center, PLLC, by Susan R. Franklin, for grandfather-appellant.

    No brief filed on behalf of defendant.

GEER, Judge.

Robert Bzduch, the grandfather of the minor children in this case, appeals from the denial of his motion to intervene seeking visitation rights. "Grandparents' right to visitation is dependent on there either being an ongoing case where custody is an issue between the parents or a finding that the parent or parents are unfit." McDuffie v. Mitchell, 155 N.C. App. 587, 590, 573 S.E.2d 606, 608 (2002), disc. review denied, 357 N.C. 165, 580 S.E.2d 368 (2003). In this appeal, a grandfather argues that the trial court erroneously denied his motion to intervene seeking visitation rights with his minor grandchildren. Because there is an ongoingcase in which custody is an issue, we reverse the trial court's order.

Facts

The initial parties to this action, plaintiff Kerry Kim Smith (the children's father) and defendant Lori Bzduch Smith (the children's mother), were married in 1990 and had two children. They later divorced and entered into a consent order in 1997 setting forth their agreement regarding custody of their minor children. The order provided that the parents would exercise joint decision-making with plaintiff having physical custody. At that time, defendant was disabled and was applying for Social Security disability benefits. She was granted visitation of one weekend a month at the home of defendant's mother.
On 4 May 2005, defendant filed a motion to modify the consent order. Defendant stated that changed circumstances, including an improvement in her medical condition and income level and the restoration of her driving privileges, warranted an increase of her visitation to every other weekend during the school year, an alternating schedule of visitation for holidays and the children's birthdays, and six weeks of summer visitation at her father's summer home. On the same day, defendant's father, Robert Bzduch ("the grandfather"), moved to intervene to obtain visitation rights with his grandchildren. Following the denial of that motion, the grandfather brought this appeal.

Discussion

    Preliminarily, we note the trial court's order denying the grandfather's motion to intervene is interlocutory as it has not determined the entire controversy among the parties. United Servs. Auto. Ass'n v. Simpson, 126 N.C. App. 393, 395, 485 S.E.2d 337, 339, disc. review denied, 347 N.C. 141, 492 S.E.2d 37 (1997). Although interlocutory orders are generally not immediately appealable, a party is entitled to immediate review when the order adversely affects a substantial right that the appellant may lose if an appeal is not permitted prior to final judgment. Id. Because there is conflicting authority as to whether the denial of a motion to intervene affects a substantial right, we choose to exercise our discretion to grant the grandfather's petition for writ of certiorari and reach the merits of this appeal.   (See footnote 1) Compare id. (holding that the appeal of an order denying a motion to intervene under Rules 24(a) and (b) affected substantial rights and was therefore immediately appealable) and Alford v. Davis, 131 N.C. App. 214, 216, 505 S.E.2d 917, 919 (1998) (same), with Howell v. Howell, 89 N.C. App. 115, 118, 365 S.E.2d 181, 183 (1988) (holding that a "refusal to grant permissive intervention [under Rule 24(b)] is an interlocutory order" that does not affect a substantial right).    As this Court recognized in Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003), four statutes address a grandparent's right to seek visitation:
            Four North Carolina statutes empower grandparents to request visitation rights in different circumstances. G.S. § 50-13.1(a) grants grandparents the broad privilege to institute an action for custody or visitation, as allowed in G.S. §§ 50-13.2(b1), 50-13.2A, and 50-13.5(j). G.S. § 50-13.2(b1) allows grandparents to receive visitation privileges as part of an ongoing custody dispute. G.S. § 50-13.2A permits a biological grandparent to request visitation with the grandchild if the grandchild is adopted by a stepparent or relative of the child, provided the child and grandparent have a substantial relationship.

Eakett, 157 N.C. App. at 552, 579 S.E.2d at 488. Our Supreme Court in McIntyre v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995), explained that while N.C. Gen. Stat. § 50-13.1(a) (2005) is a broad provision regarding who has standing to move for custody, "it appears that the legislature intended to grant grandparents a right to visitation only in those situations specified in these three statutes": N.C. Gen. Stat. §§ 50-13.2(b1), 50-13.5(j), and 50-13.2A (2005). The McIntyre Court then held that "N.C.G.S. § 50- 13.1(a) does not grant plaintiffs the right to sue for visitation when no custody proceeding is ongoing and the minor children's family is intact." 341 N.C. at 635, 461 S.E.2d at 750.
    In applying McIntyre, this Court has explained further:
It follows that under the broad grant of section 50-13.1(a), grandparents have standing to seek visitation with their grandchildren when those children are not living in a McIntyre "intact family." Additionally, there are three specific statutes that grant grandparents standing to seek visitation withtheir grandchildren. N.C.G.S. § 50-13.2(b1) (1995) (when "custody of minor child" at issue); . . . N.C.G.S. § 50-13.5 (1995) (after custody of minor child has been determined); N.C.G.S. § 50-13.2A (1995) (when child adopted by "stepparent or a relative of child").

Fisher v. Gaydon, 124 N.C. App. 442, 444, 477 S.E.2d 251, 253 (1996), disc. review denied, 345 N.C. 640, 483 S.E.2d 706 (1997). Since the grandchildren in this case are living in a McIntyre intact family, Fisher requires us to address whether the grandfather has standing to seek visitation under one of the three specified statutes. See also id. at 445-46, 477 S.E.2d at 253 (after concluding that the grandchildren were residing in an intact family, addressing whether the grandparents had standing under N.C. Gen. Stat. § 50-13.2(b1)).
    The pertinent statute in this case is N.C. Gen. Stat. § 50- 13.2(b1), which provides: "An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate." As this Court explained in Fisher, N.C. Gen. Stat. § 50-13.2(b1) applies only when custody of the minor children is an ongoing issue. 124 N.C. App. at 446, 477 S.E.2d at 253. This requirement is met "only when the custody of a child is 'in issue' or 'being litigated.'" Id.
    Defendant has filed a motion to modify the custody order, based on a change in circumstances, to provide her greater visitation rights. It is well-established that, at least as between parents, "visitation" is part of custody. See N.C. Gen. Stat. § 50-13.1(a) ("Unless a contrary intent is clear, the word 'custody' shall be deemed to include custody or visitation orboth."); Clark v. Clark, 294 N.C. 554, 575-76, 243 S.E.2d 129, 142 (1978) ("Visitation privileges are but a lesser degree of custody."); Charett v. Charett, 42 N.C. App. 189, 193, 256 S.E.2d 238, 241 ("Custody and visitation are two facets of the same issue."), disc. review denied, 298 N.C. 294, 259 S.E.2d 299 (1979). Thus, as a result of defendant's motion to modify, custody is now in issue and being litigated, as required by Fisher.
    Plaintiff, however, argues that there was no ongoing custody dispute because the court had "established custody of the minor children on August 20, 1997, when the parties entered into a permanent consent order granting the plaintiff primary physical custody of the minor children." (Emphasis added.) While the 20 August 1997 consent order is a "permanent order" in that it granted more than temporary custody, it is important to note that "neither agreements nor adjudications for the custody or support of a minor child are ever final." Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E.2d 240, 243 (1964). Although an order may be considered "permanent," N.C. Gen. Stat. § 50-13.7(a) (2005) provides that "an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." Therefore, although a custody order may be "permanent" in name, it is never permanent in substance.
    Indeed, the trial court in this case did not call the order "permanent" and, when drafting the order, the court "retain[ed] jurisdiction over the parties and subject matter of this actionconcerning compliance of this order and any change of this order based upon a substantial change of circumstances." Thus, the trial court itself foresaw the possibility of continued child custody litigation.
    N.C. Gen. Stat. § 50-13.7(a) authorizes a court to modify a custody order "upon a motion in the cause and a showing of changed circumstances." It is well settled that "[t]he best interests 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, appeal dismissed and disc. review denied, 323 N.C. 173, 373 S.E.2d 108 (1988). "'In making the best interest decision, the trial court is vested with broad discretion and can be reversed only upon a showing of abuse of discretion.'" Jordan v. Jordan, 162 N.C. App. 112, 118, 592 S.E.2d 1, 4 (2004) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 79, 418 S.E.2d 675, 680 (1992), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998)).
    Thus, defendant's motion for a change of visitation required that the trial court determine whether there had been a change of circumstances and, if so, decide whether the best interests of the child warranted a change in visitation rights. Clark, 294 N.C. at 576, 243 S.E.2d at 142. Defendant's motion, as a result, placed the custody of the children _ in the form of visitation _ "in issue" and custody was thereafter "being litigated" as required by Fisher, 124 N.C. App. at 446, 477 S.E.2d at 253. See also McIntyre, 341 N.C. at 633, 461 S.E.2d at 748 (while addressinggrandparents' right to file a motion in the cause for visitation, court noted that "[a]fter an initial custody determination, the trial court retains jurisdiction of the issue of custody until the death of one of the parties or the emancipation of the youngest child").
    Plaintiff also points to N.C. Gen. Stat. § 50-13.5(j), which specifies:
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 of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate.

Plaintiff argues that a grandparent may only file a motion in the cause under § 50-13.5(j), as the grandfather did in this case, if the children do not live in an intact family.
    N.C. Gen. Stat. § 50-13.5(j), however, only sets forth procedures for a grandparent to seek custody once there has already been a custody determination. See Hill v. Newman, 131 N.C. App. 793, 797, 509 S.E.2d 226, 229 (1998) ("In enacting this special statute, [§ 50-13.5(j),] the legislature sought to protect the rights of grandparents by enabling them to make a motion in the cause for custody or visitation after the custody of the minor child had already been determined."); Sharp v. Sharp, 124 N.C. App. 357, 363, 477 S.E.2d 258, 262 (1996) ("This procedural provision [§ 50-13.5(j)] simply makes clear that grandparents have the right to file suit for custody or visitation during an ongoing proceeding.").    Nothing in the plain language of the statute or our prior decisions precludes a grandparent from filing a § 50-13.5(j) motion based on an existing custody dispute between the parents. In Eakett, this Court did reject an interpretation that would allow "any custody order entered by a trial court [to] be re-opened upon a grandparent's motion asserting that he or she was not authorized enough visitation with his or her grandchildren." 157 N.C. App. at 554, 579 S.E.2d at 489. The Court explained that a contrary construction would "provide a mechanism by which a grandparent could disrupt a stable family where no disruption previously existed." Id. In Eakett, however, there was no ongoing custody dispute _ there had been no challenge by the father to the original award of custody to the mother and no further legal proceedings relating to custody for three years, until the paternal grandparents filed their motion to intervene. Eakett does not, therefore, preclude the filing of a motion under N.C. Gen. Stat. § 50-13.5(j) when the grandparent can meet the requirements of the separate statute, N.C. Gen. Stat. § 50-13.2(b1).
    We hold, accordingly, that N.C. Gen. Stat. § 50-13.5(j) authorized the grandfather to file a motion to intervene so long as he showed a basis for granting visitation and a change of circumstances. Since, as a result of defendant's motion, there is an ongoing custody dispute, the grandfather was entitled to seek visitation under N.C. Gen. Stat. § 50-13.2(b1). We, therefore, reverse.
    Reversed.
    Judges WYNN and STEPHENS concur.
    Report per Rule 30(e).

Footnote: 1