{ "id": 793178, "name": "VICTOR O. McINTYRE and LOUISE M. McINTYRE v. LORING McINTYRE and KATHRYN McINTYRE", "name_abbreviation": "McIntyre v. McIntyre", "decision_date": "1995-09-08", "docket_number": "No. 142PA94", "first_page": "629", "last_page": "635", "citations": [ { "type": "official", "cite": "341 N.C. 629" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 ALR3d 222", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "407 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "103 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523636 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/103/0790-01" ] }, { "cite": "192 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "282 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564353 ], "year": 1972, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0287-01" ] }, { "cite": "259 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570336, 8570284, 8570444, 8570383, 8570419 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0294-02", "/nc/298/0294-01", "/nc/298/0294-05", "/nc/298/0294-03", "/nc/298/0294-04" ] }, { "cite": "256 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553238 ], "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0189-01" ] }, { "cite": "243 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "142", "parenthetical": "\"Visitation privileges are but a lesser degree of custody.\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "year": 1978, "pin_cites": [ { "page": "575-76", "parenthetical": "\"Visitation privileges are but a lesser degree of custody.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "238 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564227, 8564314, 8564284, 8564253, 8564383 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0360-01", "/nc/293/0360-04", "/nc/293/0360-03", "/nc/293/0360-02", "/nc/293/0360-05" ] }, { "cite": "236 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552585 ], "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0750-01" ] }, { "cite": "365 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "663", "parenthetical": "holding that N.C.G.S. \u00a7 50-13.2(bl" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522182 ], "year": 1988, "pin_cites": [ { "page": "353", "parenthetical": "holding that N.C.G.S. \u00a7 50-13.2(bl" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0351-01" ] }, { "cite": "445 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "903" }, { "page": "904-05" }, { "page": "906" } ], "opinion_index": 0 }, { "cite": "337 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551903 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "405-06" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0397-01" ] }, { "cite": "281 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "374" }, { "page": "375" }, { "page": "374" }, { "page": "375" } ], "opinion_index": 0 }, { "cite": "303 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575162 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "706" }, { "page": "706" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0699-01" ] }, { "cite": "151 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "586", "parenthetical": "quoting 82 C.J.S. Statutes \u00a7 369, at 839-43 (1953)" }, { "page": "586" } ], "opinion_index": 0 }, { "cite": "268 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564406 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "628-29", "parenthetical": "quoting 82 C.J.S. Statutes \u00a7 369, at 839-43 (1953)" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0624-01" ] } ], "analysis": { "cardinality": 612, "char_count": 15276, "ocr_confidence": 0.731, "pagerank": { "raw": 5.772843910775061e-07, "percentile": 0.9508330408452385 }, "sha256": "de08753efba47549f65caa3ee0d3b0db5de027f9d3002698634158e4171bf917", "simhash": "1:235d374756bba052", "word_count": 2480 }, "last_updated": "2023-07-14T22:14:42.837437+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VICTOR O. McINTYRE and LOUISE M. McINTYRE v. LORING McINTYRE and KATHRYN McINTYRE" ], "opinions": [ { "text": "WHICHARD, Justice.\nOn 4 December 1992 plaintiffs Victor and Louise McIntyre filed a complaint against defendants Loring and Kathryn McIntyre seeking visitation rights with defendants\u2019 two minor children, Meghan and Rachel McIntyre, who at that time were ages seven and four respectively. Defendant Loring McIntyre is plaintiffs\u2019 son. Plaintiffs, as grandparents of Meghan and Rachel McIntyre, alleged that it was in the \u201cbest interest of the minor children that the Plaintiffs be granted visitation pursuant to N.C.G.S. [\u00a7\u00a7] 50-13.1(a) and 50-13.2(b)(l).\u201d Defendants\u2019 family was intact when plaintiffs filed their complaint and at all relevant times; no custody proceeding was ongoing.\nOn 3 February 1993 defendants moved to dismiss the complaint based on Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, alleging that the trial court lacked subject matter jurisdiction to interfere with defendants\u2019 right to determine with whom their children would associate. Defendants contended in their motion that either N.C.G.S. \u00a7 50-13.1(a) is unconstitutional or that plaintiffs, as grandparents, were not \u201cthe intended beneficiaries of the recent legislative amendment\u201d to that statute. On 19 October 1993 Judge Gary Cash entered an order dismissing plaintiffs\u2019 complaint based on the conclusion that N.C.G.S. \u00a7 50-13.1(a) is unconstitutional in that it deprives defendants of their right to determine with whom their children will associate.\nOn 4 November 1993 plaintiffs gave notice of appeal to the Court of Appeals. On 31 March 1994 defendants petitioned this Court for discretionary review prior to a determination by the Court of Appeals. On 16 June 1994 this Court allowed defendants\u2019 petition.\nDefendants argue that N.C.G.S. \u00a7 50-13.1(a), if applied here, is unconstitutional. Prior to reaching the constitutional issue, however, we must determine whether N.C.G.S. \u00a7 50-13.1(a) applies in this situation, that is, whether it allows grandparents to sue for visitation rights with a minor child when the child\u2019s family is intact and no custody proceeding is ongoing. If it does not, the trial court lacked subject matter jurisdiction over plaintiffs\u2019 suit.\nN.C.G.S. \u00a7 50-13.1 was enacted in 1967 and amended in 1989 to add the last sentence. It provides in pertinent part:\n\u00a7 50-13.1. Action or proceeding for custody of minor child.\n(a) Any 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.G.S. \u00a7 50-13.1(a) (Supp. 1994) (emphasis added). Plaintiffs argue that the amendment which added the last sentence grants them the right to sue for visitation with their grandchildren even when no custody proceeding is ongoing. According to plaintiffs, in accord with the amendment, the first sentence of the statute should be read as follows: \u201cAny . . . relative . . . claiming the right to [visitation with] a minor child may institute an action or proceeding for [visitation with] such child, as hereinafter provided.\u201d We disagree with plaintiffs\u2019 interpretation and conclude that this statute does not apply to the fact situation presented.\nThis Court has stated:\n\u201cWhere there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, according to the authorities on the question, unless it appears that the legislature intended to make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage.\u201d\nFood Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966) (quoting 82 C.J.S. Statutes \u00a7 369, at 839-43 (1953)). By enacting N.C.G.S. \u00a7 50-13.1 in 1967, \u201cthe Legislature clearly sought to eliminate conflicting and inconsistent custody statutes and to replace them with a comprehensive act governing all custody disputes.\u201d Oxendine v. Dept. of Social Services, 303 N.C. 699, 706, 281 S.E.2d 370, 374 (1981). This statute \u201cwas intended as abroad statute, covering a myriad of situations in which custody disputes are involved.\u201d Id. at 707, 281 S.E.2d at 375. We therefore must view it as a general statute.\nAs we reaffirmed in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), the common law rule is that parents have a \u201cparamount right... to custody, care and nurture of their children,\u201d id. at 402, 445 S.E.2d at 903, and that that right includes the right to determine with whom their children shall associate, id. at 403, 445 S.E.2d at 904-05. See Moore v. Moore, 89 N.C. App. 351, 353, 365 S.E.2d 662, 663 (1988) (holding that N.C.G.S. \u00a7 50-13.2(bl) authorizes the court to provide for visitation rights of grandparents when custody of minor children is at issue in ongoing proceeding but does not allow court to enter a visitation order when custody is not at issue; parents who have lawful custody of the minor children have the prerogative to determine with whom their children shall associate); Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716 (holding that paternal grandmother and aunt did not have right to seek visitation with minor children who were in lawful custody of natural mother and adoptive father because parents in lawful custody of their minor children have the prerogative to determine with whom their children shall associate), disc. rev. denied, 293 N.C. 360, 238 S.E.2d 149 (1977). N.C.G.S. \u00a7 50-13.1(a), however, gives a trial court jurisdiction to determine custody: (1) in those situations where a parent\u2019s paramount right to custody may be overcome \u2014 for example, when the parent is unfit, has abandoned or neglected the child, or has died, see Oxendine, 303 N.C. at 706, 281 S.E.2d at 374 (holding that N.C.G.S. \u00a7 50-13.1 is not \u201crestricted to custody disputes involved in separation or divorce\u201d); and (2) when, by reason of separation or divorce, custody is at issue between the parents.\nIn contrast to the generality of N.C.G.S. \u00a7 50-13.1(a), several other statutes in chapter 50 address one aspect of a determination of legal c\u00fastody, that of physical custody, here in the form of visitation rights of grandparents. See Clark v. Clark, 294 N.C. 554, 575-76, 243 S.E.2d 129, 142 (1978) (\u201cVisitation privileges are but a lesser degree of custody.\u201d); Charett v. Charett, 42 N.C. App. 189, 193, 256 S.E.2d 238, 241 (\u201cCustody and visitation are two facets of the same issue.\u201d), disc. rev. denied, 298 N.C. 294, 259 S.E.2d 299 (1979).\nThe legislature has enacted N.C.G.S. \u00a7 50-13.2(bl), which provides:\n\u00a7 50-13.2. Who entitled to custody; terms of custody; visitation rights of grandparents; taking child out of State.\n(bl) 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 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. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.\nN.C.G.S. \u00a7 50-13.2(bl) (1987). This statute allows atrial court to grant visitation rights to grandparents in a custody order.\nThe legislature also has provided that grandparents may make a motion in the cause for custody or visitation after the custody of a minor child has been determined. After 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. Shoaf v. Shoaf, 282 N.C. 287, 290, 192 S.E.2d 299, 302 (1972). N.C.G.S. \u00a7 50-13.50) provides:\n\u00a7 50-13.5. Procedure in actions for custody or support of minor children.\n0) Custody and Visitation Rights of Grandparents. \u2014 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. 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. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.\nN.C.G.S. \u00a7 50-13.5Q) (Supp. 1994).\nFurther, the legislature has enacted N.C.G.S. \u00a7 50-13.2A, which allows grandparents of a minor child who has been adopted by a stepparent or a relative of the child to institute an action for visitation. That statute provides:\n\u00a7 50-13.2A. Action for visitation of an adopted grandchild.\nA biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child. An order awarding visitation rights shall contain findings of fact which support the determination by the judge of the best interest of the child. Procedure, venue, and jurisdiction shall be as in an action for custody.\nN.C.G.S. \u00a7 50-13.2A (1987).\nThese statutes address \u201ca part of the same subject [as N.C.G.S. \u00a7 50-13.1(a)] in a more minute and definite way.\u201d Food Stores, 268 N.C. at 628, 151 S.E.2d at 586. We therefore must read these special statutes in conjunction with N.C.G.S. \u00a7 50-13.1(a) so as to harmonize them and give effect to a consistent legislative policy. Under them, a grandparent\u2019s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative.\nThese special provisions therefore control our interpretation of N.C.G.S. \u00a7 50-13.1(a). The legislature\u2019s creation of special statutes to provide for grandparents\u2019 visitation rights suggests that it did not intend N.C.G.S. \u00a7 50-13.1(a) as a broad grant to grandparents of the right to visitation when the natural parents have legal custody of their children and are living with them as an intact family. Accord Oxendine, 303 N.C. at 707, 281 S.E.2d at 375 (holding that N.C.G.S. \u00a7 50-13.1(a) does not grant foster parents the right to challenge statutory grant of custody to the Department of Social Services because N.C.G.S. \u00a7 50-13.1 covers a \u201cmyriad of situations in which custody disputes are involved,\u201d and a narrow statute, N.C.G.S. \u00a7 48-9.1(1), was intended as an exception to the general grant of standing to contest custody in N.C.G.S. \u00a7 50-13.1). Rather, it appears that the legislature intended to grant grandparents a right to visitation only in those situations specified in these three statutes. Had it intended otherwise, it logically would have repealed these special statutes when it amended N.C.G.S. \u00a7 50-13.1(a), the general statute. See Petersen, 337 N.C. at 405-06, 445 S.E.2d at 906 (agreeing with trial court\u2019s reasoning in Ray v. Ray, 103 N.C. App. 790, 407 S.E. 2d 592 (1991), that interpreting N.C.G.S. \u00a7 50-13.1(a) as a broad grant to strangers of the right to bring custody or visitation actions \u201cwould nullify any need for G.S. [\u00a7\u00a7] 50-13.2(bl) and 50-13.2A, neither of which [has] been repealed\u201d).\nThe language of the 1989 amendment to N.C.G.S. \u00a7 50-13.1(a) does not change our interpretation of this statute. The amendment probably was added to provide that in certain contexts \u201ccustody\u201d and \u201cvisitation\u201d are synonymous; however, here it is clear that in the context of grandparents\u2019 rights to visitation, the two words do not mean the same thing. Reading N.C.G.S. \u00a7 50-13.1(a) in conjunction with N.C.G.S. \u00a7\u00a7 50-13.2(bl), -13.5Q), and -13.2A strongly suggests that the legislature did not intend \u201ccustody\u201d and \u201cvisitation\u201d to be interpreted as synonymous in the context of grandparents\u2019 rights. The three special statutes provide grandparents with the right to seek \u201cvisitation\u201d only in certain clearly specified situations. Those situations do not include that of initiating suit against parents whose family is intact and where no custody proceeding is ongoing. A legislative intent contrary to that for which plaintiffs argue therefore seems clear.\nFor these reasons, we hold that N.C.G.S. \u00a7 50-13.1(a) does not grant plaintiffs the right to sue for visitation when no custody proceeding is ongoing and the minor children\u2019s family is intact.\nPlaintiffs assign error to the trial court\u2019s sustaining of defendants\u2019 objection to the introduction of the depositions of defendants prior to its ruling on the motion to dismiss. In light of our holding that the statute does not grant plaintiffs the right to sue defendants for visitation, we need not address this issue.\nFor the reasons stated, the order of the trial court is affirmed.\nAFFIRMED.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "David P. Parker for plaintiff-appellants.", "Brock, Drye & Aceto, P.A., by Michael W. Drye; and Craig L. Parshall, of counsel, for defendant-appellees." ], "corrections": "", "head_matter": "VICTOR O. McINTYRE and LOUISE M. McINTYRE v. LORING McINTYRE and KATHRYN McINTYRE\nNo. 142PA94\n(Filed 8 September 1995)\nDivorce and Separation \u00a7 383 (NCI4th)\u2014 grandparents\u2019 visitation rights \u2014 child\u2019s family intact and no custody proceeding \u2014 no right to sue for visitation\nThe legislature intended to grant grandparents a right to visitation with a minor grandchild only in those situations specified in N.C.G.S. \u00a7\u00a7 50-13.2(bl), 50-13.5 and 50-13.2A, that is, only in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative. Therefore, N.C.G.S. \u00a7 50-13.1(a) does not grant grandparents the right to sue for visitation rights with a minor child when the child\u2019s family is intact and no custody proceeding is ongoing.\nAm Jur 2d, Divorce and Separation \u00a7 1002.\nGrandparents\u2019 visitation rights. 90 ALR3d 222.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31, prior to a determination by the Court of Appeals, of an order entered 19 October 1993 by Cash, J., in District Court, Buncombe County. Heard in the Supreme Court 8 May 1995.\nDavid P. Parker for plaintiff-appellants.\nBrock, Drye & Aceto, P.A., by Michael W. Drye; and Craig L. Parshall, of counsel, for defendant-appellees." }, "file_name": "0629-01", "first_page_order": 663, "last_page_order": 669 }