{ "id": 9251224, "name": "CARIE FRANCIS McDUFFIE, Plaintiff v. MAURICE MITCHELL, Defendant", "name_abbreviation": "McDuffie v. Mitchell", "decision_date": "2002-12-31", "docket_number": "No. COA01-1492", "first_page": "587", "last_page": "592", "citations": [ { "type": "official", "cite": "155 N.C. App. 587" } ], "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": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "520 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "484 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "534" } ], "opinion_index": 0 }, { "cite": "346 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139523 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0068-01" ] }, { "cite": "86 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "242 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610043 ], "year": 1955, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0102-01" ] }, { "cite": "300 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520913 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0324-01" ] }, { "cite": "571 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250810 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/153/0527-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(j)" }, { "page": "(j)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 584, "char_count": 12003, "ocr_confidence": 0.73, "pagerank": { "raw": 2.409244581861737e-07, "percentile": 0.7997593682102702 }, "sha256": "27cccd65c8151d9ef43899c47eea66d6485b20c27dae359b0d2e75674851448a", "simhash": "1:13e95cea2dab9f71", "word_count": 1976 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "CARIE FRANCIS McDUFFIE, Plaintiff v. MAURICE MITCHELL, Defendant" ], "opinions": [ { "text": "THOMAS, Judge.\nPlaintiff, Carie McDuffie, appeals the trial court\u2019s dismissal of her complaint seeking visitation and custody of her two grandchildren. For the reasons herein, we affirm.\nPlaintiff is the maternal grandmother of Maurice Mitchell III and Ayanna Mitchell. Maurice was born on 10 July 1991 and Ayanna was bom on 29 May 1993, both during the marriage of their mother and father, the late Sharon McDuffie (formerly Mitchell) and defendant, Maurice Mitchell. After the parents were divorced in 1997, the Superior Court of New Jersey, Chancery Division, entered an order giving custody of the children to Sharon and visitation rights to defendant.\nSharon and the children moved to North Carolina later that year. The New Jersey court order was registered in Mecklenburg County District Court in 98 CVD 15717. In July 2000, defendant filed a Motion to Modify Custody, alleging that he had been denied visitation by Sharon and her boyfriend, James Brown. A trial was held on 11 September 2000. On 27 November 2000, the court entered an order awarding continued custody to Sharon and visitation to defendant.\nIn early October 2000, however, Sharon suffered a medical emergency and went into a coma from which she was not expected to recover. Defendant filed an Emergency Motion to Modify Custody on 17 October 2000. Sharon died on 20 October 2000, prior to a hearing on that motion. On 27 October 2000, plaintiff filed a Motion to Intervene in what had been the custody case between Sharon and defendant. James Brown filed a Motion to Intervene on 30 October 2000. The children resided with plaintiff immediately after Sharon\u2019s death.\nWhile those motions were pending, plaintiff instituted the present action by filing a complaint on the morning of 8 December 2000 seeking custody and injunctive relief. By notice pleading and later, by consent, visitation was sought as well. On the afternoon of 8 December 2000, defendant obtained an order authorizing him to take physical custody of the children.\nOn 5 January 2001, in the original case, the trial court denied the motions of plaintiff and Brown to intervene on the basis that there was no longer an ongoing custody action and that Brown had violated Rule 24 of the North Carolina Rules of Civil Procedure. The trial court then dismissed the motions to intervene, defendant\u2019s motion to modify custody, the 27 November 2000 order granting custody to Sharon, and an 11 August 1999 child support order. It ruled that the court\u2019s subject matter jurisdiction had ceased in the case and terminated the custody proceedings between Sharon and defendant.\nOn 17 January 2001, in the instant case, defendant filed an answer and a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). On 2 March 2001, defendant filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Plaintiff then filed a Motion in the Cause pursuant to N.C. Gen. Stat. \u00a7 50-13.5(j) on 6 March 2001. Section 50-13.5(j) provides, in pertinent part:\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. 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, \u201cgrandparent\u201d 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.\nN.C. Gen. Stat. \u00a7 50-13.5(j) (2001).\nOn 1 June 2001, the trial court denied and dismissed plaintiffs claims for visitation, custody and injunctive relief and dismissed her motion in the cause.\nBy plaintiff\u2019s first assignment of error, she contends the trial court erred in dismissing her visitation claim under Rule 12(b)(6) because genuine issues of material fact existed regarding whether defendant and the children were an \u201cintact family.\u201d We disagree.\nIn ruling on a motion to dismiss pursuant to Rule 12(b)(6), the trial court must take all of the allegations of the complaint as true. Affordable Care, Inc. v. N.C. State Bd. of Dental Exam\u2019rs, 153 N.C. App. 527, 571 S.E.2d 52 (2002). However, the trial court must also draw its own legal conclusions from the facts, which may differ from those advocated by plaintiff. Id. at 57.\nWe note that where one parent is deceased, the surviving parent has a natural and legal right to custody and control of the minor children. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457 (1983). This right is not absolute, but it may be interfered with or denied \u201conly for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it.\u201d Id. at 327, 300 S.E.2d at 459 (citing James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759, 761 (1955)). See also Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).\nSection 50-13.1(a) provides:\nAny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Unless a contrary intent is clear, the word \u201ccustody\u201d shall be deemed to include custody or visitation or both.\nN.C. Gen. Stat. \u00a7 50-13.1(a) (2001). Pursuant to this section, a grandparent may institute an action for custody of his or her grandchild, but the statute does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children\u2019s family is intact. McIntyre v. McIntyre, 341 N.C. 629, 635, 461 S.E.2d 745, 750 (1995).\nPlaintiff argues that the circumstances here sufficiently diverge from those in McIntyre, Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997); Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000); and Fisher v. Gaydon, 124 N.C. App. 442, 477 S.E.2d 251 (1996), rev. denied, 345 N.C. 640, 483 S.E.2d 706 (1997) so as to warrant a different result. In that line of cases, the non-custodial parent was the one who died. Here, it is the custodial parent who died, with the non-custodial parent not having the children in his physical control either immediately before or after the death. While we may sympathize with the distinction, and however harsh the result, the precise wording in those cases does not even allow us to reach the issue of whether the family here was intact.\nGrandparents\u2019 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. Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559, rev. denied, 353 N.C. 268, 546 S.E.2d 111 (2000). Upon the death of the mother in the instant case, the ongoing case between the mother and father ended. McIntyre v. McIntyre, supra. Consequently, there was no on-going custody action when plaintiff filed her motion to intervene.\nPlaintiff argues a further distinction by noting she did not appeal the dismissal of her motion to intervene in Case Number 98 CVD 15717. However, by filing a new complaint requesting custody, and through notice pleading and agreement also asking for visitation, she claims a right to visitation where the family is not intact or where a parent is shown to be unfit. Nonetheless, as aforementioned, whether a family is intact, standing alone, is an irrelevant issue for this claim. The fact that the trial court specifically stated that its jurisdiction in the original action ended 5 January 2001, after the filing of plaintiff\u2019s complaint, in no way relieves plaintiff of her burden to allege and prove unfitness. See Price v. Breedlove, supra; McIntyre v. McIntyre, supra.\nBy her second assignment of error, plaintiff contends the trial court erred in dismissing her custody claim pursuant to Rule 12(b)(6). Specifically, she insists she has alleged types of conduct which are inconsistent with defendant\u2019s status as a parent. We disagree.\nOur courts recognize \u201cthe general principle that because of the strength and importance of the parents\u2019 constitutionally protected interests, those interests must prevail against a third party unless the court finds that the parents are unfit or have neglected the welfare of their children.\u201d Price v. Howard, supra. This Court stated in Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999):\nWe read Price as broadening the rule of McIntyre by requiring that a third party, including a grandparent, who seeks custody of a minor child as against the child\u2019s natural parent, must allege facts sufficient to show that the natural parent has acted in a manner inconsistent with his or her constitutionally protected status.\nThe complaint here fails to sufficiently allege acts that would constitute \u201cunfitness, neglect, [or] abandonment,\u201d or any other type of conduct so egregious as to result in defendant\u2019s forfeiture of his constitutionally protected status as a parent. Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). It merely alleges that defendant has been \u201cestranged from the children for some time and currently only enjoys limited visitation with the minor children.\u201d The rest of the complaint focuses on plaintiffs role in the children\u2019s lives, and asserts that remaining with her is in their best interests. Such allegations fall short of establishing that defendant acted in a manner inconsistent with his protected status. A best interests analysis is not appropriate absent such a finding. See N.C. Gen. Stat. \u00a7 50-13.2(a); Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).\nIn fact, defendant pursued a modification in custody after he claimed he was denied visitation by Sharon and her boyfriend. The trial court in 98 CVD 15717 made several findings of fact that the mother and her boyfriend had denied defendant visitation. Further, defendant sought custody of the children immediately after Sharon went into a coma.\nThe complaint here is insufficient to state a claim under N.C. Gen. Stat. \u00a7 50-13.1(a) on behalf of plaintiff for custody of defendant\u2019s minor children. We therefore affirm the trial court\u2019s order dismissing plaintiff\u2019s visitation and custody claims.\nAFFIRMED.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "James, McElroy & Diehl, P.A., by Richard A. Elkins and Preston O. Odom, III, for plaintiff-appellant.", "Richard L. McGlerinfor defendant-appellee." ], "corrections": "", "head_matter": "CARIE FRANCIS McDUFFIE, Plaintiff v. MAURICE MITCHELL, Defendant\nNo. COA01-1492\n(Filed 31 December 2002)\n1. Child Support, Custody, and Visitation\u2014 visitation \u2014 grandmother\u2019s claim after mother\u2019s death \u2014 no existing custody action between parents\nThe issue of whether a family was intact was not reached in a maternal grandparent\u2019s visitation action against the children\u2019s father where the custodial mother died, an existing custody action between the parents was dismissed, and the trial court correctly dismissed the grandmother\u2019s action for failure to state a claim. The grandmother\u2019s claim was dependent on there being an ongoing custody case between the parents or a finding that the parent or parents are unfit. N.C.G.S. \u00a7\u00a7 50-13.50), 50-13.1(a).\n2. Child Support, Custody, and Visitation\u2014 custody \u2014 grandmother\u2019s claim after mother\u2019s death \u2014 fitness of father\nA grandmother did not sufficiently allege conduct inconsistent with a noncustodial father\u2019s status as a parent where she claimed that he had been estranged from the children and had enjoyed only limited visitation but the father had alleged in a previous action that he had been denied visitation and had pursued a modification of custody, and he sought custody immediately after the children\u2019s mother went into a coma. The trial court did not err by dismissing the action for failure to state a claim.\nAppeal by plaintiff from judgment entered 1 June 2001 by Judge Eric L. Levinson in Mecklenburg County District Court. Heard in the Court of Appeals 11 September 2002.\nJames, McElroy & Diehl, P.A., by Richard A. Elkins and Preston O. Odom, III, for plaintiff-appellant.\nRichard L. McGlerinfor defendant-appellee." }, "file_name": "0587-01", "first_page_order": 617, "last_page_order": 622 }