Adams v. Langdon
| Decision Date | 19 March 2019 |
| Docket Number | No. COA18-718,COA18-718 |
| Citation | 264 N.C.App. 251,826 S.E.2d 236 |
| Parties | Christopher ADAMS, Plaintiff v. Brittany LANGDON, Defendant v. Cheri Malone, Intervenor |
| Court | North Carolina Court of Appeals |
Mobley Law Office, P.A., Smithfield, by Marie H. Mobley, for plaintiff-appellee.
Spence, Berkau, & McLamb, P.A., Smithfield, by Robert A. Spence, Jr., for intervenor-appellant.
Cheri Malone (Intervenor) appeals from an Order to Dismiss filed on 9 October 2017 and a Custody/Visitation Order entered on 26 April 2018 concluding her grandparental visitation rights established in this child custody matter were terminated as a result of the termination of her daughter's parental rights in a separate action.
Christopher Adams (Plaintiff) and Brittany Langdon (Defendant) are the biological parents of a child born in 2007. When the child was approximately seven months old, Plaintiff filed a complaint seeking joint custody of the child. Defendant timely answered the complaint; however, neither party pursued a custody order until Plaintiff obtained an Ex Parte Temporary Custody Order on 13 October 2011, based on Defendant's alleged mental illness and substance abuse.
On 24 October 2011, Plaintiff and Defendant entered into a Memorandum of Judgment/Order establishing temporary custody pending a later permanent custody hearing. This Memorandum of Judgment/Order granted Plaintiff primary custody of the child and provided Defendant with supervised visitation. Defendant's visitation was to be supervised by Intervenor, who is Defendant's mother and thus the child's maternal grandmother.
Subsequently, on 11 January 2012, the trial court entered a Temporary Custody Order modifying the 24 October 2011 Memorandum of Judgment/Order. This Temporary Custody Order ceased Defendant's supervised visitation until completion of substance abuse testing and assessments.
On 10 February 2012, Intervenor filed a Motion to Intervene alleging she was the maternal grandmother of the child; she had a "close parental type relationship" with the child, given that the child had lived with her for several years; there was an ongoing custody dispute between the child's parents; and it was in the best interest of the child to allow her visitation rights. Plaintiff and Defendant consented to the intervention in a Memorandum of Judgment/Order on 1 March 2012, in which the parties also consented to allow Intervenor visitation with the child. Several weeks later, on 28 March 2012, the trial court entered a separate order allowing the intervention. This 28 March 2012 Order concluded that Intervenor had standing to intervene as an interested party pursuant to Rule 24 of the North Carolina Rules of Civil Procedure and sections 50-13.2(b1) and 50-13.5(j) of our General Statutes.
By consent of the parties, the trial court entered a Permanent Custody Order on 26 April 2012. This Order provided Plaintiff sole custody of the child and Intervenor with visitation one weekend per month and one additional Saturday per month. Defendant was prohibited from any visitation with the child.
On 12 September 2012, Defendant filed a motion alleging she had completed a six-week drug program and seeking to modify the Permanent Custody Order to permit her to have supervised visitation. By consent of the parties, the trial court entered a Temporary Memorandum of Judgment/Order on 5 November 2012 giving Defendant visitation only under the supervision of Intervenor and leaving all other provisions of the 26 April 2012 Permanent Custody Order in full force.
The Record reflects the case was dormant for approximately five years when in a separate action, Plaintiff petitioned to have Defendant's parental rights terminated (TPR proceeding). While Intervenor was apparently present for the termination of parental rights hearing, she was not a party to the TPR proceeding. On 27 September 2017, the trial court in the TPR proceeding entered an order terminating Defendant's parental rights to the child.
With this backdrop, in the custody case before us, on 30 August 2017, Defendant filed a Motion and Notice of Hearing for Contempt alleging Plaintiff was in violation of the 5 November 2012 custody order by refusing to allow Defendant's supervised visitation and phone calls. The contempt hearing was set for 9 October 2017. On the day of the hearing, District Court Judge Jim Love, Jr. entered an Order to Dismiss (9 October 2017 Order to Dismiss). The 9 October 2017 Order to Dismiss was entered on an administrative form and makes no findings of fact nor conclusions of law. The 9 October 2017 Order to Dismiss appears to contain the following relevant provisions with marked boxes:
The Record indicates Intervenor received no notice of these contempt proceedings and was not served with the 9 October 2017 Order to Dismiss.
On 1 November 2017, Intervenor filed a show cause motion for visitation. An Order to Show Cause for why Plaintiff should not be held in contempt for violating the 26 April 2012 Order issued the same day. At the 20 November 2017 hearing, Plaintiff and Intervenor indicated there was a disagreement on a preliminary legal issue: whether the termination of Defendant's parental rights also terminated Intervenor's visitation rights.
On 26 April 2018, District Court Judge Mary H. Wells entered a Custody/Visitation Order (26 April 2018 Custody/Visitation Order). The trial court ruled "grandparent visitation arises from the litigated custody action of the parent, and accordingly, a grandparent's rights to the care, custody and control of the child are not constitutionally protected except through the parent's constitutional protection." The trial court further concluded "the custody action does not survive the termination of [Defendant's] parental rights, therefore, the grandparent rights of [Intervenor] do not survive [Defendant's] parental rights being [terminated and] that [Intervenor's] grandparent visitation rights are terminated along with the custodial and parental rights of her daughter [Defendant]." The trial court thus concluded Plaintiff was not in violation of the prior custody order since this custody action did not survive the termination of Defendant's parental rights.
On 3 May 2018, Intervenor timely filed Notice of Appeal from the 26 April 2018 Custody/Visitation Order. On 18 May 2018, Intervenor filed a Notice of Appeal from the 9 October 2017 Order to Dismiss. In her 18 May 2018 Notice of Appeal, Intervenor alleged she had no notice of the 9 October 2017 Order to Dismiss until Intervenor's counsel located it in the file in the clerk's office on 3 May 2018. Intervenor further noted to the extent the 9 October 2017 Order to Dismiss purported to dismiss the entire custody action with prejudice, it served as an adverse ruling against her.
The trial court's 9 October 2017 Order to Dismiss and 26 April 2018 Custody/Visitation Order are each final orders resolving the then-pending issues before the trial court. Thus, this Court has appellate jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2017).
Intervenor's Notice of Appeal from the 26 April 2018 Custody/Visitation Order was timely filed within 30 days of entry of that Order. The timeliness of Intervenor's 18 May 2018 Notice of Appeal from the 9 October 2017 Order to Dismiss, however, requires further analysis.
According to Intervenor's Notice of Appeal from the 9 October 2017 Order to Dismiss, this Order was never served on Intervenor, and Intervenor first learned of the Order on 3 May 2018 when counsel for Intervenor found the Order in the court file. Upon learning of this Order, Intervenor promptly filed Notice of Appeal.
Our Court has recently stated: "[W]here ... there is no certificate of service in the record showing when appellant was served with the trial court judgment, appellee must show that appellant received actual notice of the judgment more than thirty days before filing notice of appeal in order to warrant dismissal of the appeal." Brown v. Swarn , ––– N.C. App. ––––, ––––, 810 S.E.2d 237, 240 (2018) (emphasis added). Under Brown , unless the appellee argues that the appeal is untimely, and offers proof of actual notice, we may not dismiss. Appellee-Plaintiff has not argued Intervenor's appeal is untimely or offered proof of Intervenor's actual notice of the 9 October 2017 Order to Dismiss; therefore, Intervenor's Notice of Appeal from that Order is deemed timely filed. See id.
The dispositive issue on appeal is whether the visitation rights of Intervenor, as established in the 26 April 2012 Custody Order, were terminated when the parental rights of her daughter, Defendant, were terminated in a separate termination of parental rights action brought by the child's father to which Intervenor was not a party.
Both the 9 October 2017 Order to Dismiss and the 26 April 2018 Custody/Visitation Order were entered in the context of civil contempt proceedings. "When reviewing a trial court's contempt order, the appellate court is limited to determining whether there is competent evidence to support the trial court's findings and whether the findings support the conclusions [of law]." Shumaker v. Shumaker , 137 N.C. App. 72, 77, 527 S.E.2d 55, 58 (2000) (citation omitted). "The trial court's conclusions of law drawn from the findings of fact [in civil contempt proceedings] are reviewable de novo ." Tucker v. Tucker , 197 N.C. App. 592, 594, 679 S.E.2d 141, 143 (2009) (citation and quotation marks omitted). " ‘Under a de novo review, the court considers the matter anew and freely substitutes its own...
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