{ "id": 11078849, "name": "MARTHA KAY PRICE, Plaintiff v. JAMES ERIC BREEDLOVE, Defendant", "name_abbreviation": "Price v. Breedlove", "decision_date": "2000-05-16", "docket_number": "No. COA99-535", "first_page": "149", "last_page": "153", "citations": [ { "type": "official", "cite": "138 N.C. App. 149" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "92 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "243 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626955 ], "year": 1956, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0702-01" ] }, { "cite": "192 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "302", "parenthetical": "quoting Weddington v. Weddington, 243 N.C. 702, 704, 92 S.E.2d 71, 73 (1956)" } ], "opinion_index": 0 }, { "cite": "282 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564353 ], "year": 1972, "pin_cites": [ { "page": "290", "parenthetical": "quoting Weddington v. Weddington, 243 N.C. 702, 704, 92 S.E.2d 71, 73 (1956)" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0287-01" ] }, { "cite": "520 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "107", "parenthetical": "\"the term 'intact family' should certainly include a married natural parent, step-parent and child living in a single residence\"" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240842 ], "year": 1999, "pin_cites": [ { "parenthetical": "\"the term 'intact family' should certainly include a married natural parent, step-parent and child living in a single residence\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0359-01" ] }, { "cite": "483 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53930, 54000, 53944, 53850, 54107 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0640-04", "/nc/345/0640-03", "/nc/345/0640-05", "/nc/345/0640-02", "/nc/345/0640-01" ] }, { "cite": "477 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "252-53" }, { "page": "253" }, { "page": "253", "parenthetical": "\"[t]he traditional two-parent model ... is not the determinative factor qualifying a group of persons as a family . . . ; a single parent living with his or her child is an 'intact family' within the meaning of McIntyre\"" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 442", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889759 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "444-45" }, { "page": "445" }, { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0442-01" ] }, { "cite": "524 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "opinion_index": 0 }, { "cite": "136 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240166 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/136/0435-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "where one panel of Court of Appeals \"has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court\"" }, { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "where one panel of Court of Appeals \"has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court\"" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "461 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "750" }, { "page": "749" }, { "page": "748", "parenthetical": "citations omitted" }, { "page": "748", "parenthetical": "court retains jurisdiction over issue of custody and visitation \"until the death of one of the parties\"" } ], "opinion_index": 0 }, { "cite": "341 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793178 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "635" }, { "page": "634" }, { "page": "633" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0629-01" ] } ], "analysis": { "cardinality": 481, "char_count": 9986, "ocr_confidence": 0.747, "pagerank": { "raw": 2.3363404220992174e-07, "percentile": 0.7916737616749084 }, "sha256": "071448103e3460a7d15e3f90829cf502e71c3419152d52108dc2dd75e88b634b", "simhash": "1:1a417f4364278cf7", "word_count": 1620 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "MARTHA KAY PRICE, Plaintiff v. JAMES ERIC BREEDLOVE, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals the trial court\u2019s order allowing defendant\u2019s motion to dismiss pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) (1999) (Rule 12(b)(6))! We affirm.\nThe uncontested pertinent facts and procedural history include the following: Defendant and plaintiffs daughter are the biological parents of minor children Travis and Joshua Breedlove (jointly, the children), born 14 September 1989 and 21 May 1991 respectively. On 12 January 1995, defendant was awarded custody of the children by court order following his separation and subsequent divorce from plaintiff\u2019s daughter. The children have lived with defendant since that date. In June of 1997, plaintiffs daughter was killed in an automobile accident.\nOn 14 October 1998, plaintiff instituted the instant action seeking visitation with the children as their grandmother. On 30 October 1998, defendant moved to dismiss plaintiffs complaint pursuant to Rule 12(b)(6), alleging she had failed to state a claim upon which relief might be granted. Following a hearing, the trial court allowed defendant\u2019s motion by order filed 29 December 1998 (the Order).\nThe Order contained the following pertinent findings of fact:\n2. The Defendant is the biological father of [the] two minor children . . .; the Plaintiff is the maternal grandmother . . .; the biological mother of the minor children, who was divorced from the Defendant in 1997, died in an automobile accident in 1997.\n4. From and since 1995, the minor children have lived with the Defendant. . . .\n5. There is no other action pending relative to custody or otherwise between the parties at this time.\nBased upon its factual findings, the trial court rendered the following conclusion of law:\n[P]ursuant to the Rule of Law enunciated in the case of McIntyre v. McIntyre .. . the Plaintiff, the grandmother herein, has no right to sue for visitation when no custody proceeding is ongoing and the minor children\u2019s family is intact. [Additionally,] pursuant to the Rule of Law enunciated in Fisher v. Gaydon . . . the minor children and the Defendant are an \u201cintact family unit[,]\u201d [a]nd . . . that [the court] lacks subject matter jurisdiction. . . .\nPlaintiff appeals.\nPlaintiff contends the trial court\nerr[ed] in granting the defendant\u2019s motion to dismiss because McIntyre v. McIntyre does not require it and to the extent Fisher v. Gaydon does, it should be overruled.\nIn addition, plaintiff relies on N.C.G.S. \u00a7 50-13.1(a) (1999) and N.C.G.S. \u00a7 50-13.5(j) (1999).\nIn McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995), our Supreme Court acknowledged that G.S. \u00a7 50-13.1(a) allows a grandparent to \u201cinstitute an action or proceeding for the custody\u201d of their grandchild, G.S. \u00a7 50-13.1(a), but held such statute\ndoes not grant [grandparents] the right to sue for visitation when no custody proceeding is ongoing and the minor children\u2019s family is intact,\nMcIntyre, 341 N.C. at 635, 461 S.E.2d at 750. Plaintiff maintains that McIntyre, read in context, defined an \u201cintact family\u201d as \u201ctwo natural parents residing together with their children.\u201d In light of recent decisions of this Court, we cannot agree. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (where one panel of Court of Appeals \u201chas decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court\u201d).\nIn Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000), this Court discussed the \u201cintact family\u201d requirement. In Montgomery, paternal grandparents sought visitation with their granddaughter, alleging she was not living in an \u201cintact family.\u201d The plaintiffs\u2019 son, the child\u2019s biological father, had been killed in a highway collision. Id. at -, 524 S.E.2d at -. At the time of his death, he and his wife were living separate and apart and the child resided with her mother. Id. This Court upheld dismissal of the grandparents\u2019 action upon holding the child lived in an \u201cintact family\u201d as required by McIntyre and defined in 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). Id. at -, 524 S.E.2d at -.\nIn Fisher, this Court established that an \u201c \u2018intact family\u2019 within the meaning of McIntyre\u201d may exist where \u201ca single parent [is] living with his or her child,\u201d Fisher, 124 N.C. App. at 445, 477 S.E.2d at 253, and is not limited to the circumstance where a child and both natural parents are living together, id.; see Penland v. Harris, 135 N.C. App. 359, -, 520 S.E.2d 105, 107 (1999) (\u201cthe term \u2018intact family\u2019 should certainly include a married natural parent, step-parent and child living in a single residence\u201d).\nUnder the foregoing precedent, the children and defendant in the case sub judice must be considered as living in an \u201cintact family,\u201d and plaintiff thus has no standing to seek visitation with her grandchildren under G.S. \u00a7 50-13.1(a). See McIntyre, 341 N.C. at 634, 461 S.E.2d at 749 (grandparents accorded no standing under G.S. \u00a7 5043.1(a) to seek visitation where the \u201cnatural parents have legal custody of their children and are living with them as an intact family\u201d), and Fisher, 124 N.C. App. at 445, 477 S.E.2d at 253 (\u201c[t]he traditional two-parent model ... is not the determinative factor qualifying a group of persons as a family . . . ; a single parent living with his or her child is an \u2018intact family\u2019 within the meaning of McIntyre\").\nPlaintiff also contends she is afforded standing to seek visitation by G.S. \u00a7 50-13.50), and that Fisher should be overruled. As to the latter contention, we have noted above the decision of our Supreme Court limiting to that Court the authority to overrule decisions of a panel of this Court. See In the Matter of Appeal from Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. As to plaintiff\u2019s assertion referencing G.S. \u00a7 50-13.5(j), she has cited no authority in support of her reliance thereon, see N.C.R. App. P. 28(b)(5) (assignments of error \u201cin support of which no . . . authority [is] cited, will be taken as abandoned\u201d), and her argument in any event fails under McIntyre.\nG.S. \u00a7 50-13.50) provides:\nIn 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. \u00a7 50-13.7, the grandparents .. . are entitled to ... visitation rights as the court.. . deems appropriate.\nInterpreting this statutory provision, the McIntyre Court noted that although G.S. \u00a7 50-13.50) permits grandparents to seek visitation subsequent to an initial custody determination,\nthe trial court retains jurisdiction of the issue of custody [only] until the death of one of the parties or the emancipation of the youngest child, (emphasis added).\nMcIntyre, 341 N.C. at 633, 461 S.E.2d at 748 (citations omitted); see also Shoaf v. Shoaf, 282 N.C. 287, 290, 192 S.E.2d 299, 302 (1972) (quoting Weddington v. Weddington, 243 N.C. 702, 704, 92 S.E.2d 71, 73 (1956)) (\u201c[a]fter separation, followed by action for divorce . . . authority to provide for the custody of children vests in the court in which the divorce proceeding is pending ... \u2018so long as the action is pending and it is pending for this purpose until the death of one of the parties, or the youngest child of the marriage reaches the age of maturity\u2019 \u201d).\nIt is undisputed herein that defendant was awarded legal custody of the children by a 1995 court order in a proceeding contested by plaintiffs daughter, the now-deceased former wife of defendant and the mother of the children. It is further uncontested that plaintiffs daughter died in 1997. Under the statutory interpretation of our Supreme Court in McIntyre, therefore, the trial court\u2019s jurisdiction over the issues of visitation and custody regarding the children herein terminated upon the death of plaintiff\u2019s daughter. See McIntyre, 341 N.C. at 633, 461 S.E.2d at 748 (court retains jurisdiction over issue of custody and visitation \u201cuntil the death of one of the parties\u201d).\nIn sum, the trial court properly concluded it lacked subject matter jurisdiction over plaintiff\u2019s visitation claim, and the court did not err in allowing defendant\u2019s motion to dismiss said claim for failure to state a claim upon which relief might be granted. See G.S. \u00a7 1A-1, Rule 12(b)(6).\nAffirmed.\nJudges McGEE and HUNTER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Olson, Smith, Jordan and Cox, P.A., by James S. Erwin, III, for plaintiff-appellant.", "H. Paul Averette, for defendant-appellee." ], "corrections": "", "head_matter": "MARTHA KAY PRICE, Plaintiff v. JAMES ERIC BREEDLOVE, Defendant\nNo. COA99-535\n(Filed 16 May 2000)\n1. Child Support, Custody, and Visitation\u2014 visitation by grandparent \u2014 deceased mother \u2014 intact family \u2014 standing of grandparent\nThe trial court did not err by granting defendant-father\u2019s Rule 12(b)(6) motion to dismiss an action by a grandmother seeking visitation with her grandchildren after her daughter was killed in an automobile accident. The children and defendant must be considered as living in an \u201cintact family,\u201d and plaintiff thus has no standing to seek visitation with her grandchildren under N.C.G.S. \u00a7 50-13.1(a).\n2. Child Support, Custody, and Visitation\u2014 visitation by grandparent \u2014 parent deceased after custody order \u2014 subject matter jurisdiction\nThe trial court properly concluded that it lacked subject matter jurisdiction over a claim for visitation by a grandmother under N.C.G.S. \u00a7 50-13.5(j) where it was undisputed that defendant-father was awarded legal custody of the children in a 1995 court order in a proceeding contested by plaintiffs daughter, now deceased, who was defendant\u2019s former wife and the mother of the children. The trial court\u2019s jurisdiction over the issues of visitation and custody terminated upon the death of plaintiff\u2019s daughter in 1997.\nAppeal by plaintiff from order filed 29 December 1998 by Judge David K. Fox in Transylvania County District Court. Heard in the Court of Appeals 27 January 2000.\nOlson, Smith, Jordan and Cox, P.A., by James S. Erwin, III, for plaintiff-appellant.\nH. Paul Averette, for defendant-appellee." }, "file_name": "0149-01", "first_page_order": 179, "last_page_order": 183 }