{ "id": 8954606, "name": "IN RE: THE ESTATE OF CANDICE LEIGH LUNSFORD, Deceased", "name_abbreviation": "In re the Estate of Lunsford", "decision_date": "2003-09-02", "docket_number": "No. COA02-904", "first_page": "125", "last_page": "137", "citations": [ { "type": "official", "cite": "160 N.C. App. 125" } ], "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": "81 N.C.L. Rev. 1149", "category": "journals:journal", "reporter": "N.C. L. Rev.", "pin_cites": [ { "page": "1176", "parenthetical": "Mar. 2003" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358667 ], "year": 1986, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0273-01" ] }, { "cite": "485 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "617" }, { "page": "617" } ], "opinion_index": 0 }, { "cite": "346 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139356 ], "year": 1997, "pin_cites": [ { "page": "251-52" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0244-01" ] }, { "cite": "342 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704578 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0546-01" ] }, { "cite": "334 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520625 ], "year": 1985, "pin_cites": [ { "page": "100-01" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0097-01" ] }, { "cite": "544 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684906, 685103, 684880, 684948, 685083 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0356-03", "/nc/352/0356-02", "/nc/352/0356-04", "/nc/352/0356-05", "/nc/352/0356-01" ] }, { "cite": "523 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "687" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238911 ], "year": 1999, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0183-01" ] }, { "cite": "126 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1962, "pin_cites": [ { "page": "608", "parenthetical": "citations omitted" }, { "page": "608" }, { "page": "608", "parenthetical": "\"[A] mere failure of the parent of a minor child in the custody of a third person to contribute to its support does not in and of itself constitute abandonment.\"" } ], "opinion_index": 0 }, { "cite": "257 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568884 ], "weight": 3, "year": 1962, "pin_cites": [ { "page": "501-02" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0486-01" ] }, { "cite": "568 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250958 ], "year": 2002, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0599-01" ] }, { "cite": "524 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "98" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240022 ], "year": 2000, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0420-01" ] }, { "cite": "547 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436709 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0646-01" ] }, { "cite": "556 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "292" }, { "page": "292" }, { "page": "292" } ], "opinion_index": 0 }, { "cite": "354 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138341 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "571" }, { "page": "571" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0571-01" ] }, { "cite": "316 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "349", "parenthetical": "failure to provide stable living environment and proper food and clothing is clearly evidence of neglect that cannot be ignored" } ], "opinion_index": 1 }, { "cite": "69 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526059 ], "year": 1984, "pin_cites": [ { "page": "225", "parenthetical": "failure to provide stable living environment and proper food and clothing is clearly evidence of neglect that cannot be ignored" } ], "opinion_index": 1, "case_paths": [ "/nc-app/69/0222-01" ] }, { "cite": "44 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "33-34", "parenthetical": "discussing the moral and legal duty of a parent to support and maintain a minor child" } ], "opinion_index": 1 }, { "cite": "227 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626761 ], "year": 1947, "pin_cites": [ { "page": "616-18", "parenthetical": "discussing the moral and legal duty of a parent to support and maintain a minor child" } ], "opinion_index": 1, "case_paths": [ "/nc/227/0614-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-40", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "558 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "214", "parenthetical": "parent must prove he has resumed both care and maintenance of his child to obtain workers' compensation death benefits under N.C. Gen. Stat. \u00a7 97-40" } ], "opinion_index": 1 }, { "cite": "148 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365265 ], "year": 2002, "pin_cites": [ { "page": "253", "parenthetical": "parent must prove he has resumed both care and maintenance of his child to obtain workers' compensation death benefits under N.C. Gen. Stat. \u00a7 97-40" } ], "opinion_index": 1, "case_paths": [ "/nc-app/148/0248-01" ] }, { "cite": "571 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "68", "parenthetical": "findings of fact mislabeled as conclusions of law did not violate N.C. Gen. Stat. \u00a7 1A-1, Rule 52 where they were clearly stated and easily distinguishable" } ], "opinion_index": 1 }, { "cite": "153 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250860 ], "year": 2002, "pin_cites": [ { "page": "569", "parenthetical": "findings of fact mislabeled as conclusions of law did not violate N.C. Gen. Stat. \u00a7 1A-1, Rule 52 where they were clearly stated and easily distinguishable" } ], "opinion_index": 1, "case_paths": [ "/nc-app/153/0565-01" ] }, { "cite": "523 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "687" }, { "page": "687" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11436709 ], "year": 2001, "pin_cites": [ { "page": "648" } ], "opinion_index": 1, "case_paths": [ "/nc-app/143/0646-01" ] }, { "cite": "556 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "292" } ], "opinion_index": 1 }, { "cite": "354 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138341 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "571" } ], "opinion_index": 1, "case_paths": [ "/nc/354/0571-01" ] } ], "analysis": { "cardinality": 952, "char_count": 29257, "ocr_confidence": 0.768, "pagerank": { "raw": 4.4794374208229343e-07, "percentile": 0.922298944841958 }, "sha256": "5d68ea019888367f21b00a7da9ea0f3aa45ab5402cba233434c7e6adfc1dfa69", "simhash": "1:c37bf562d4dfedd0", "word_count": 4838 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge BRYANT dissents in a separate opinion." ], "parties": [ "IN RE: THE ESTATE OF CANDICE LEIGH LUNSFORD, Deceased" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal addresses the proper distribution of the estate of Candice Leigh Lunsford (\u201cCandice\u201d), who died at the age of eighteen in an automobile accident. Petitioner Dawn Collins Bean, the estate\u2019s administratrix and Candice\u2019s mother, contends that respondent Randy Keith Lunsford, Candice\u2019s father, willfully abandoned Candice and is not entitled to share in Candice\u2019s estate.\nFollowing a prior appeal, in which our Supreme Court ordered the case remanded to the trial court for additional findings of fact, In re Estate of Lunsford, 354 N.C. 571, 556 S.E.2d 292 (2001), the superior court concluded that Mr. Lunsford had willfully abandoned his daughter and was not entitled, under N.C. Gen. Stat. \u00a7 31A-2 (2001), to share in Candice\u2019s estate. Since neither party has assigned error to the superior court\u2019s findings of fact, the sole issue before this Court is whether those findings support the superior court\u2019s conclusions of law. We hold that the findings do not support the superior court\u2019s conclusion that Mr. Lunsford willfully abandoned his daughter and reverse.\nOn 30 June 1999, Candice died in a car accident. On 31 August 1999, after the proceeds of a $100,000.00 liability insurance policy had been tendered to Candice\u2019s estate, the estate sought a determination by the clerk of court of Mr. Lunsford\u2019s right to inherit. In an order entered 20 December 1999, the clerk of superior court for Surry County concluded that Mr. Lunsford was precluded from inheriting by N.C. Gen. Stat. \u00a7 31A-2. Mr. Lunsford appealed the clerk\u2019s decision to the superior court, which, after conducting an evidentiary hearing on 7 February 2000, reached the same conclusion.\nOn appeal, this Court affirmed the superior court, with Chief Judge Eagles dissenting on the grounds that N.C. Gen. Stat. \u00a7 31A-2 should not apply because Candice was not a minor at the time of her death. In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001). Mr. Lunsford appealed to the North Carolina Supreme Court based on the dissenting opinion. On 18 December 2001, the Supreme Court vacated the opinion of this Court and remanded the case to this Court for further remand to the trial court for:\nadditional findings of fact as to (1) whether respondent Randy Lunsford abandoned Candice Leigh Lunsford; (2) if so, whether respondent Randy Lunsford resumed care and maintenance of Candice Leigh Lunsford at least one year prior to her death and continued the same until her death; and (3) whether respondent Randy Lunsford \u201csubstantially complied\u201d with all orders of the trial court requiring contribution to the support of the child.\n354 N.C. 571, 571, 556 S.E.2d 292, 292 (2001).\nOn 12 April 2002, the superior court conducted an in-chambers hearing at which the parties agreed that the court would make its additional findings of fact without taking further evidence. Based on the 7 February 2000 hearing transcript and the arguments of counsel, the court, on the same day, entered an order setting forth new findings of fact.\nSpecifically, the court found that Ms. Bean and Mr. Lunsford married at young ages on 1 November 1980. Candice was bom on 21 June 1981. Candice\u2019s parents separated on 20 November 1982. Because Mr. Lunsford was an alcoholic and too immature for the responsibilities of family life, Ms. Bean did not want him to remain in the same household as their daughter. Mr. Lunsford agreed and honored Ms. Bean\u2019s request that he leave.\nOn 30 January 1985, Ms. Bean and Mr. Lunsford were divorced. The divorce decree gave sole \u201ccare, custody and control\u201d of Candice to Ms. Bean. The decree made no provision for visitation for Mr. Lunsford. The decree mentioned the subject of child support, but did not include any provisions directing either parent to pay child support.\nOn 30 March 1985, Ms. Bean married Gary Bean. Following that marriage, Mr. Bean assisted Ms. Bean with the support of Candice and they together almost exclusively paid for Candice\u2019s expenses. The court found that throughout Candice\u2019s minority, Mr. Lunsford occasionally offered to pay Ms. Bean for a part of the care and maintenance of Candice, but that Ms. Bean refused all of his offers. After one of Mr. Lunsford\u2019s offers, Ms. Bean suggested that he buy Candice some clothes that she wanted and, according to the trial court, he \u201creadily complied.\u201d\nThe court further found that from the date that Ms. Bean and Mr. Lunsford separated, Mr. Lunsford visited with Candice sporadically on his own initiative. Mr. Lunsford\u2019s mother, who had an established relationship with Candice, would pick her up for a visit and Mr. Lunsford would occasionally spend time with his daughter then.\nThe court found that as Candice grew older, either Candice or Mr. Lunsford would initiate phone calls, visits, or other \u201crelational contact.\u201d The court noted that the visits \u201cusually coincided with lulls in [Mr. Lunsford\u2019s] alcoholism and/or an increase in the emotional stability of his private life.\u201d Just before Candice\u2019s unexpected death, Mr. Lunsford attended her high school graduation. According to the trial court, both Candice and Mr. Lunsford \u201chad initiated plans for furthering their father-daughter relationship.\u201d\nBased on these findings of fact, the trial court again concluded that Mr. Lunsford had willfully abandoned his daughter within the meaning of N.C. Gen. Stat. \u00a7 31A-2 and that neither of the exceptions contained within the statute applied. Mr. Lunsford has appealed from that 16 April 2002 order.\nApplicability of N.C. Gen. Stat. \u00a7 31A-2\nInitially, Mr. Lunsford contends that N.C. Gen. Stat. \u00a7 31A-2 does not apply because Candice was not a minor at the time of her death. N.C. Gen. Stat. \u00a7 31A-2 provides:\nAny 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\u2019s estate and all right to administer the estate of the child, except\u2014\n(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\n(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.\nWe are not free to revisit the question of the applicability of this statute to the facts of this case since that issue was necessarily decided by the Supreme Court in the prior appeal.\nAlthough the Supreme Court\u2019s order does not expressly hold that N.C. Gen. Stat. \u00a7 31A-2 applies to this case, that conclusion is implicit in the Court\u2019s 18 December 2001 order. Because this case was before the Supreme Court pursuant to N.C. Gen. Stat. \u00a7 7A- 30(2) (2001), the scope of the appeal was limited to the subject matter of Chief Judge Eagles\u2019 dissent, which addressed the question whether N.C. Gen. Stat. \u00a7 31A-2 \u201capplies only to minor children-decedents.\u201d 143 N.C. App. at 656, 547 S.E.2d at 489. In addressing that issue, the Supreme Court ordered a remand for additional findings of fact regarding whether respondent had abandoned Candice; if so, whether he had resumed care and maintenance at least one year before her death; and whether he had substantially complied with all child support orders. 354 N.C. at 571, 556 S.E.2d at 292. Such additional findings tracking the provisions of N.C. Gen. Stat. \u00a7 31A-2 would not be necessary had the Court concluded that the statute did not apply. By vacating this Court\u2019s prior opinion and directing the trial court to make additional findings regarding each of the factors specified in N.C. Gen. Stat. \u00a7 31A-2, the Supreme Court necessarily concluded that the statute did apply in this case and we may not conclude otherwise.\nStandard of Review\nA trial court\u2019s findings of fact following a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them. Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 98 (2000). Appellate review of the trial court\u2019s conclusions of law is de novo. Id. Under N.C.R. App. P. 10(a), however, this Court\u2019s review is limited to those findings of fact and conclusions of law properly assigned as error. Thus, \u201cfindings of fact to which [appellant] has not assigned error and argued in his brief are conclusively established on appeal.\u201d Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002).\nSince neither party in this case has assigned error to any of the findings of fact, we take them as conclusive. In addition, appellant has only assigned error to conclusions of law 1 and 3:\n1. Lunsford and Candi[ce] had some relationship during the lifetime of Candi[ce]. However, Lunsford willfully abandoned his daughter, Candice Leigh Lunsford, as that term is used and understood in N.C. Gen. Stat. \u00a7 31A-2 and North Carolina common law.\n3. Although Lunsford was deprived of the custody of Candi[ce] under an order of a court of competent jurisdiction, and support was considered[,] Lunsford could not substantially comply with all orders of a court requiring contribution to the support of Candi[ce] since no order to pay child support was issued.\nOur review is thus limited by appellant\u2019s assignments of error to a determination whether the trial court\u2019s conclusions of law 1 and 3 are supported by its findings of fact.\nWillful Abandonment\nIn considering whether a parent has willfully abandoned a child under N.C. Gen. Stat. \u00a7 31A-2, this Court applies the definition of \u201cwillful abandonment\u201d set forth in Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962). See Hixson v. Krebs, 136 N.C. App. 183, 188, 523 S.E.2d 684, 687 (1999), cert. denied, 352 N.C. 356, 544 S.E.2d 546 (2000); Lessard v. Lessard, 77 N.C. App. 97, 100-01, 334 S.E.2d 475, 477 (1985), aff\u2019d, 316 N.C. 546, 342 S.E.2d 522 (1986). In Pratt, the Supreme Court set forth two definitions of \u201cwillful abandonment\u201d:\nThe most frequently approved definition is that abandonment imports any 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. Wilful intent is an integral part of abandonment and this is a question of fact to be determined from the evidence.\nAbandonment 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.\nAbandonment requires a wilful intent to escape parental responsibility and conduct in effectuation of such intent.\nPratt, 257 N.C. at 501-02, 126 S.E.2d at 608 (citations omitted).\nIn this case, the trial court\u2019s findings of fact establish that Mr. Lunsford originally left his daughter at his wife\u2019s request because of his alcoholism. In the divorce decree, the court granted sole custody to Ms. Bean and did not specifically address visitation for Mr. Lunsford. Nevertheless, the court found that \u201cLunsford and Candi[ce] had some relationship during the lifetime of Candi[ce].\u201d Specifically, from the date that the parties separated, Mr. Lunsford took the initiative to visit Candice, although the trial court found that he did so only \u201csporadically\u201d or \u201coccasionally.\u201d The court further found that \u201c[a]s Candi[ce] grew older, either Candi[ce] or Lunsford would initiate phone calls, visits, or other relational contact.\u201d The court specifically found that Mr. Lunsford attended Candice\u2019s high school graduation and they \u201cboth had initiated plans for furthering their father-daughter relationship.\u201d\nWith respect to Candice\u2019s care and maintenance, the court found that no child support order had ever been entered requiring that Mr. Lunsford pay support. The court further found that although Ms. Bean and Candice\u2019s stepfather, Gary Bean, had paid \u201calmost exclusively\u201d for Candice\u2019s care, Mr. Lunsford had \u201c[throughout Candi[ce]\u2019s minority .. . occasionally offered to pay Bean for some of the care and maintenance of Candi[ce].\u201d Ms. Bean, however, refused those offers. The court did note that when Ms. Bean suggested that Mr. Lunsford buy Candice clothes instead, he \u201creadily complied.\u201d\nThese findings of fact do not rise to the level of willful abandonment as defined in Pratt. The findings at most describe a man who had curtailed contact with his daughter, but still visited and contacted her throughout her life. While Mr. Lunsford did not in fact pay child support, the findings do not suggest that he ignored his obligation to assist in his daughter\u2019s care and maintenance. To the contrary, the court found that he offered to help, but was refused.\nThe findings thus do not set forth any intentional conduct by Mr. Lunsford that \u201cevinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.\u201d Pratt, 257 N.C. at 501, 126 S.E.2d at 608. Nor do the findings establish that Mr. Lunsford \u201c[withheld] his presence, his love, his care, the opportunity to display filial affection, and wilfully neglect[ed] to lend support and maintenance . . . .\u201d Id. See also id. at 501-02, 126 S.E.2d at 608 (\u201c[A] mere failure of the parent of a minor child in the custody of a third person to contribute to its support does not in and of itself constitute abandonment.\u201d).\nIn In re Young, 346 N.C. 244, 251-52, 485 S.E.2d 612, 617 (1997), our Supreme Court concluded that findings of fact setting forth even less substantial contact between a mother and child were insufficient to support the trial court\u2019s conclusion that the mother had willfully abandoned her son. Although the mother, during the six-month period at issue, had made no attempt to visit her son, she had called \u201cat times,\u201d she had requested to see her son before she underwent surgery, and subsequently she began visiting him. The Court held that \u201c[t]his conduct does not evidence a willful abandonment of her child on the part of respondent.\u201d Id. at 252, 485 S.E.2d at 617.\nLikewise, while the trial court\u2019s findings of fact in this case present an unflattering portrait of Mr. Lunsford as a father, they do not suggest \u201ca willful determination to forego all parental duties and relinquish all parental claims to the child.\u201d In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). The description in the findings of fact of Mr. Lunsford\u2019s efforts throughout his daughter\u2019s life to maintain a \u201crelationship\u201d with her, although limited, and of his rebuffed offers to assist in her maintenance cannot be reconciled with the definitions of \u201cwillful abandonment\u201d adopted in this State.\nWe stress the narrowness of our review. While appellee refers to evidence supporting her position, the trial court chose not to make findings in accordance with that evidence. Appellee has not cross-assigned error as to those findings. It is not the role of this Court to consider what the trial court could have found or to make our own findings based on our review of the record. Instead, our review is limited to determining whether the court\u2019s actual findings of fact support the conclusion that it reached. In this case, they do not.\nWe also hold that the trial court erred in concluding that Mr. Lunsford did not fall within the scope of N.C. Gen. Stat. \u00a7 31A-2(2). Under N.C. Gen. Stat. \u00a7 31A-2(2), a parent who has willfully abandoned the care and maintenance of his or her child maintains his right to intestate succession from his child\u2019s estate \u201c[w]here 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.\u201d The Supreme Court specifically directed the trial court to make findings as to \u201cwhether respondent Randy Lunsford \u2018substantially complied\u2019 with all orders of the trial court requiring contribution to the support of the child.\u201d Lunsford, 354 N.C. at 571, 556 S.E.2d at 292.\nOn remand, the trial court found that Mr. Lunsford was deprived of the custody of his daughter under an order of a court of competent jurisdiction and, therefore, met the first requirement of the exception in N.C. Gen. Stat. \u00a7 31A-2(2). Although appellee argues on appeal that there was no deprivation of custody, she did not cross-assign error to the trial court\u2019s finding otherwise. That finding is, therefore, binding on this Court.\nIn any event, the finding is fully supported by the evidence. In the divorce judgment, the district court ordered that \u201cthe care, custody and control of Candice Leigh Lunsford is hereby awarded to [Teresa Dawn Collins Lunsford].\u201d The decree also did not grant Mr. Lunsford any visitation rights. Appellee contends that this order is insufficient and the exception should not apply absent a termination of parental rights. If, however, a parent\u2019s rights have been terminated, then he has no right to inherit from the child. N.C. Gen. Stat. \u00a7 7B-1112 (2001). N.C. Gen. Stat. \u00a7 31A-2 can only be relevant if a parent still has rights of inheritance. Appellee\u2019s proposed construction of the exception would render the exception meaningless. See Comment, \u201cIn re Estate of Lunsford and Statutory Ambiguity: Trying to Reconcile Child Abandonment and the Intestate Succession Act,\u201d 81 N.C.L. Rev. 1149, 1176 (Mar. 2003) (\u201cIf the divorce judgment had deprived Mr. Lunsford of his parental rights, there would be no lawsuit, because a parent whose parental rights have been terminated cannot inherit through intestacy; section 31A-2 is therefore inapplicable.\u201d).\nAlthough the trial court found that Mr. Lunsford had been deprived of custody, it nonetheless concluded that the exception to N.C. Gen. Stat. \u00a7 31A-2 did not apply because \u201cLunsford could not substantially comply with all orders of a court requiring contribution to the support of Candi[ce] since no order to pay child support was issued.\u201d We cannot agree with this construction of the exception.\nThe policy underlying Chapter 31A, barring property rights, is to ensure \u201cthat no person shall be allowed to profit by his own wrong.\u201d N.C. Gen. Stat. \u00a7 31A-15 (2001). The exception contained in N.C. Gen. Stat. \u00a7 31A-2(2) must be construed in accordance with that policy. The exception essentially states that if a court takes away custody of a child and decides the specifics of support, then a parent should not be denied the right to participate in intestate succession if he limits his role in his child\u2019s life to the parameters set out by a court. Although, as appellee argues, a parent could do more, the exception provides that a failure to exceed the requirements of a court order does not warrant application of N.C. Gen. Stat. \u00a7 31A-2.\nHere, the trial court found that the district court entering the divorce decree considered child support, but \u201cmade no order whether child support was to be paid by either parent.\u201d In fact, the decree specifically found that no court had entered any order \u201cconcerning child custody or child support for the minor child involved m this action.\u201d Then, the district court, for reasons not set out in the decree or record, chose to award \u201ccare, custody and control\u201d of Candice to her mother and not include any requirement that Mr. Lunsford pay child support. Although the district court\u2019s order failing to require Mr. Lunsford to pay any child support may be curious, that determination of the district court was apparently acceptable to appellee since, as the trial court found below, she \u201crefused\u201d all offers of child support.\nBecause the district court in its divorce judgment considered the issue of child support but elected not to require Mr. Lunsford to pay support, Mr. Lunsford has complied with the only order in existence addressing the question of child support. To conclude, as the trial court did, that exception (2) of N.C. Gen. Stat. \u00a7 31A-2, does not apply if a court has decided not to order a parent to pay child support in effect allows a subsequent court to revisit the issue of support and decide, contrary to the earlier decision, that a parent should have done more. Here, although Mr. Lunsford did not pay child support, his actions were consistent with the only pertinent order and in accordance with the mother\u2019s wishes. His conduct cannot be deemed \u201cwrong\u201d in the sense of the public policy expressed in N.C. Gen. Stat. \u00a7 31A-15. Thus, even if the trial court\u2019s determination of willful abandonment was supported by the findings of fact, the court erred in failing to conclude that N.C. Gen. Stat. \u00a7 31A-2(2) applied.\nReversed.\nJudge TIMMONS-GOODSON concurs.\nJudge BRYANT dissents in a separate opinion.\n. We also dismiss respondent\u2019s assignment of error arguing the constitutionality of N.C. Gen. Stat. \u00a7 31A-2 since respondent raised that issue for the first time on this appeal.", "type": "majority", "author": "GEER, Judge." }, { "text": "BRYANT, Judge,\ndissenting.\nAs I believe Mr. Lunsford\u2019s wilful neglect of the natural and legal obligations of parental care and support owed to his daughter Candice constituted wilful abandonment as defined by the law of this State, I respectfully dissent.\nWhether a parent has abandoned his child within the meaning of section 31A-2 of the North Carolina General Statutes is a question of fact to be decided by a jury, or judge acting as the finder of fact. See Hixson v. Krebs, 136 N.C. App. 183, 188-89, 523 S.E.2d 684, 687 (1999). In the original appeal of this case, the North Carolina Supreme Court specifically instructed the trial court on remand to make ultimate findings of fact on three issues: (1) whether Mr. Lunsford abandoned Candice; (2) if so, whether Mr. Lunsford resumed care and maintenance of Candice at least one year prior to her death and continued the same until the date of her death; and (3) whether Mr. Lunsford \u201csubstantially complied\u201d with any and all child support orders. In re Lunsford, 354 N.C. 571, 571, 556 S.E.2d 292, 292 (2001). The trial court, however, on remand labeled its findings of fact on these issues as conclusions of law. Fortunately, the trial court\u2019s mislabeling of its ultimate findings is not fatal to the order as these findings of fact are clearly stated and distinguishable from the trial court\u2019s conclusion of law, contained in its mandate, that Mr. Lunsford was barred under section 31A-2 from sharing in his daughter\u2019s estate based upon his abandonment of his daughter. See In re Faircloth, 153 N.C. App. 565, 569, 571 S.E.2d 65, 68 (2002) (findings of fact mislabeled as conclusions of law did not violate N.C. Gen. Stat. \u00a7 1A-1, Rule 52 where they were clearly stated and easily distinguishable). Although the trial court could, and indeed should, have made findings that were more comprehensive and reflective of the evidence, I conclude that the evidentiary findings which were made are sufficient to support an ultimate finding of wilful abandonment based upon wilful neglect of parental duties.\nWilful abandonment under section 31A-2 may take the form of \u201cwilful neglect and refusal to perform the natural and legal obligations of parental care and support.\u201d Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). Thus, where a parent \u201cwithholds 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.\u201d Id. \u201cTo constitute an abandonment... it is not necessary that a parent absent himself continuously from the child . . . , nor even that he cease to feel any concern for its interest.\u201d Id. at 503, 126 S.E.2d at 609; see Hixson, 136 N.C. App. at 188-89, 523 S.E.2d at 687.\nIn this case, the trial court found Mr. Lunsford left the marital home in 1982 because he \u201cwas an alcoholic and too immature for responsibilities of family life.\u201d Between the separation and Candice\u2019s death in 1999, Mr. Lunsford visited only sporadically, occasionally spending time with his daughter after his mother had arranged for visitation, and also made an appearance at her high school graduation. Mr. Lunsford did not contribute financially to Candice\u2019s care and maintenance, except to buy her clothes on a single occasion. It is, however, noted that Candice\u2019s mother also refused any contributions from Mr. Lunsford. As the majority recognizes, no error is assigned to the trial court\u2019s findings and they are binding on appeal. Further, this Court noted more specifically in the previous appeal of this case that Mr. Lunsford visited Candice less than twelve times in almost seventeen years and that he paid less than $100.00 toward her support and maintenance. In re Lunsford, 143 N.C. App. 646, 648, 547 S.E.2d 483, 484 (2001), vacated and remanded, 354 N.C. 571, 556 S.E.2d 292 (2002).\nThese findings show that Mr. Lunsford made only extremely limited and sporadic attempts to provide any care and maintenance to Candice, otherwise totally abandoning her for almost seventeen years. The duties of care and maintenance in section 31A-2 are specific obligations of a parent, the neglect of which can possibly result in both civil and criminal proceedings. These separate duties define a parent\u2019s overall responsibilities to his minor child, and both requirements must be met. See Davis v. Trus Joint MacMillan, 148 N.C. App. 248, 253, 558 S.E.2d 210, 214 (2002) (parent must prove he has resumed both care and maintenance of his child to obtain workers\u2019 compensation death benefits under N.C. Gen. Stat. \u00a7 97-40). The duty of care requires a presence in a child\u2019s life: to show love and affection, as well as providing support and maintenance. See Pratt, 257 N.C. at 501, 126 S.E.2d at 608. The duty of support and maintenance is a legal duty of the parent to his child. See N.C.G.S. \u00a7 50-13.4(b) (2001) (absent other circumstances, parents are primarily liable for the support of their minor children); see also Wells v. Wells, 227 N.C. 614, 616-18, 44 S.E.2d 31, 33-34 (1947) (discussing the moral and legal duty of a parent to support and maintain a minor child). Maintenance and support require that the parental responsibility to provide food, clothing, and shelter be met, see In re Adcock, 69 N.C. App. 222, 225, 316 S.E.2d 347, 349 (1984) (failure to provide stable living environment and proper food and clothing is clearly evidence of neglect that cannot be ignored), and the trial court\u2019s findings reflect that in fact these requirements were not met by Mr. Lunsford in this case. Neither logic nor the record in this case supports an assertion that a parent who visits a child less than twelve times in almost seventeen years, provides less than $100.00 toward her maintenance and support, buys her clothes on only one occasion, and attends her high school graduation is providing the parental duty of care and maintenance as contemplated in our statute. Simply stated, Mr. Lunsford\u2019s actions do not meet the standard of care and responsibility to which a parent is obligated.\nThus, the trial court\u2019s findings conclusively establish Mr. Lunsford wilfully neglected his parental duties and therefore abandoned his daughter within the meaning of section 31A-2. Accordingly, I would affirm the trial court\u2019s order denying Mr. Lunsford from sharing in Candice\u2019s estate.", "type": "dissent", "author": "BRYANT, Judge," } ], "attorneys": [ "Royster & Royster, by Stephen G. Royster and Michael D. Beal, for petitioner-appellee.", "Law Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills and Daniel B. Anthony, for respondent-appellant." ], "corrections": "", "head_matter": "IN RE: THE ESTATE OF CANDICE LEIGH LUNSFORD, Deceased\nNo. COA02-904\n(Filed 2 September 2003)\n1. Appeal and Error\u2014 Supreme Court order \u2014 application of statute by implication\nThe statute which prohibits a parent who has abandoned a child from taking by intestate succession (N.C.G.S. \u00a7 31A-2) was implicitly applied to a case in a North Carolina Supreme Court order which remanded for findings of fact on issues raised by the statute.\n2. Intestate Succession\u2014 parent who abandoned child \u2014 findings \u2014 not sufficient for willful abandonment\nThe trial court\u2019s conclusion that a father could not inherit by intestate succession from his daughter was not supported by the findings. Those findings at most describe a man with alcoholism who curtailed contact but visited his daughter throughout her life, and who offered to help with her maintenance and support but was refused by his ex-wife. These findings do not rise to the level of willful abandonment.\n3. Intestate Succession\u2014 parent who abandoned child \u2014 compliance with prior court order\nAn exception to the statute barring intestate succession by parents who abandon their children (N.C.G.S. \u00a7 31A-2(2)) applied because respondent complied with the only court order in existence. That order, for reasons not given, awarded custody to the child\u2019s mother but did not require the payment of child support; this was apparently acceptable to the mother, who subsequently refused respondent\u2019s offers of support.\nJudge Bryant dissenting.\nAppeal by respondent from judgment entered 16 April 2002 by Judge L. Todd Burke in Surry County Superior Court. Heard in the Court of Appeals 26 March 2003.\nRoyster & Royster, by Stephen G. Royster and Michael D. Beal, for petitioner-appellee.\nLaw Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills and Daniel B. Anthony, for respondent-appellant." }, "file_name": "0125-01", "first_page_order": 155, "last_page_order": 167 }