             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-359

                              Filed: 5 February 2019

Lee County, No. 16 CVD 493

JOSE E. RIVERA, Plaintiff,

            v.

RICKY L. MATTHEWS and wife JO MATTHEWS, and LEE COUNTY
DEPARTMENT OF SOCIAL SERVICES, Defendants.


      Appeal by Plaintiff from an order entered 7 June 2017 by Judge Mary H. Wells

in Lee County District Court. Heard in the Court of Appeals 17 October 2018.


      THE LAW OFFICE OF ERIKA R. BALES, PLLC, by Erika R. Bales, for
      Plaintiff-Appellant.

      POST, FOUSHEE & PATTON, P.A., by Kristy Gaines Patton, for Defendants-
      Appellees Ricky L. and Jo Matthews.

      Elizabeth Myrick Boone for Defendant-Appellee Lee County Department of
      Social Services.


      INMAN, Judge.


      Plaintiff-Appellant Jose E. Rivera (“Plaintiff”) appeals from an order

dismissing his complaint for custody of his maternal grandchild under Sections 50-

13.1 and 50A-101 of the North Carolina General Statutes.        In dismissing the

complaint, the trial court held that, due to an unabated pre-existing child custody

action between the child’s paternal grandparents, Defendants-Appellees Ricky L. and

Jo Matthews (the “Matthews”), and Plaintiff’s now-deceased daughter (“Mother”), it
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                                        Opinion of the Court



lacked subject matter jurisdiction to proceed. After careful review, we affirm the

order of the trial court.

                      I. FACTUAL AND PROCEDURAL HISTORY

       N. M. (“Nancy”)1 was born out of wedlock to Mother and R. M. (“Father”) in

2007. On 5 June 2015, Mother found Father dead in the family home. Seven-year-

old Nancy was at the home at the time the body was discovered. Law enforcement

searched the home and discovered copious amounts and varieties of illegal drugs and

associated paraphernalia.            Mother was then arrested on one drug-related

misdemeanor and four drug-related felony charges. The Matthews arrived at the

home that same day, and Mother implored them to take care of Nancy. Nancy has

stayed in the Matthews’ care ever since.

       In investigating Father’s death, law enforcement and the Lee County

Department of Social Services (“DSS,” together with the Matthews as “Defendants”)

interviewed Nancy. She told them that Mother injected and snorted drugs in her

presence, she had seen used needles and blood in her bathroom, she frequently had

to fix her own meals due to Mother’s incapacitation from drug usage, and she often

missed school. On at least one occasion, Nancy recounted, she had stepped on a used

needle littering the floor of the home.




       1   We refer to the minor and her parents by pseudonym.

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      Following their son’s death and Nancy’s disclosure, the Matthews filed a

complaint and motion for domestic violence protective order against Mother under

Section 50B-1 of our General Statutes on 9 June 2015. The trial court awarded

temporary custody of Nancy to the Matthews by ex parte order later that morning.

      On 25 June 2015, Mother was charged with first-degree murder in the death

of Father and misdemeanor child abuse of Nancy. The Matthews filed a complaint

for child custody against Mother the following day (the “Custody Action”), and the

trial court immediately entered an ex parte temporary custody order. Mother and the

Matthews appeared for a hearing to review the ex parte temporary custody order the

following week and, on 12 August 2015, the trial court entered a temporary custody

order continuing Nancy’s placement with the Matthews. In that order, the trial court

concluded from the evidence and factual findings that Mother “is not a fit and proper

person to exercise the care, custody and control of the minor child and has taken such

actions that are inconsistent with her constitutionally protected rights as the minor

child’s natural parent.” It also concluded that the Matthews were fit to care for Nancy

and that it would be in her best interest to be placed in their sole and exclusive legal

custody. The trial court dissolved the ex parte order, decreed that the Matthews have

“temporary sole and exclusive legal and physical care, custody and control” over

Nancy, and ordered that Mother have no contact with Nancy until further order of

the court.



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      On 28 September 2015, Plaintiff filed a complaint and motion in the Custody

Action seeking visitation; that claim was subsequently denied and dismissed by the

trial court, and Plaintiff did not appeal that decision. The record on appeal reveals

no further action in the Custody Action following the dismissal of Plaintiff’s complaint

and motion.

      Mother died on 3 June 2016. On 16 June 2016, Plaintiff, Nancy’s maternal

grandfather, filed a complaint against the Matthews in a new, separate action

seeking full custody of Nancy pursuant to Sections 50-13.1 and 50A-101 of our

General Statutes. Although Plaintiff acknowledged the existence of the Custody

Action, he alleged that it terminated upon Mother’s death. The complaint also named

DSS as a defendant, asserting that “[s]ince both biological and legal parents of the

minor are deceased, [DSS] is a necessary party to this action.”

      The Matthews filed a motion to dismiss pursuant to Rules 12(b)(1) and (6) of

the North Carolina Rules of Civil Procedure on 19 August 2016 on the grounds that

the earlier Custody Action was still pending and the temporary child custody order

“has not been set aside and continues to remain in full force and effect.” After a

hearing on 28 September 2016, the trial court granted the motion to dismiss for lack

of subject matter jurisdiction. In its written order filed 7 June 2017, the trial court

held that the Custody Action had not abated upon Mother’s death, concluding that

holding otherwise would be contrary to “reason, statutory meaning and legislative



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                                   Opinion of the Court



intent[,]” insofar as it would render Nancy a ward of the state despite her current

placement with “fit and proper legal custodians.”

      Plaintiff filed a belated notice of appeal from the order on 10 August 2017 and

a petition for writ of certiorari on 28 December 2017. We allowed Plaintiff’s petition

to review the trial court’s order on 10 January 2018.

                                    II. ANALYSIS

A. Standard of Review

      This Court reviews questions of subject matter jurisdiction de novo, McKoy v.

McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010), meaning we consider the

issue anew without any consideration of or reliance upon the lower court’s

determination, Parker v. Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007).

This same standard applies to questions of statutory interpretation. Swauger v.

University of North Carolina At Charlotte, ___ N.C. App. ___, ___, 817 S.E.2d 434, 435

(2018).

B. Death and Abatement In Custody Actions

      Plaintiff argues on appeal, as he did below, that Mother’s death resulted in an

abatement of the Custody Action. That argument is largely premised on a single

sentence found within our Supreme Court’s opinion in McIntyre v. McIntyre, 341 N.C.

629, 461 S.E.2d 745 (1995): “After an initial custody determination, the trial court

retains jurisdiction on the issue of custody until the death of one of the parties or the



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emancipation of the youngest child.” 341 N.C. at 633, 461 S.E.2d at 745 (citing Shoaf

v. Shoaf, 282 N.C. 287, 290, 192 S.E.2d 299, 302 (1972)).             While this sentence,

standing in isolation and devoid of context, may appear to resolve the question

presented by this appeal, an opinion rendered upon that language alone would do a

disservice to the law2 and, as explained infra, untether McIntyre and other related

cases from their constitutional moorings.                Indeed, when those decisions are

considered fully and alongside our statutes concerning the survival of actions and the

custody and visitation rights of grandparents, Plaintiff’s appeal grows ever the more

vexatious and the simple answer he proposes increasingly less viable. Resolution of

this appeal, therefore, requires a thorough dredging of these subjects, and we begin

that analysis with McIntyre.

       In McIntyre, paternal grandparents filed a complaint under Section 50-13.1(a)

against their son and his wife for visitation with their minor granddaughters, who

lived with their parents in an intact family and were not involved in any ongoing

custody action. 341 N.C. at 629, 461 S.E.2d at 746-47. To determine whether such a

right of action existed under those circumstances, our Supreme Court conducted a

review of the statutes under which grandparents may bring a suit for custody or

visitation. Id. at 633, 461 S.E.2d at 748-49. The Court noted that Section 50-13.5

provides grandparents with the option of filing a motion for visitation in an ongoing



      2   As well as to the parties and Nancy.

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custody action following an initial custody determination. Id. at 633, 461 S.E.2d at

748-49.   The Court cited its earlier decision in Shoaf for the proposition that

grandparents’ rights to file for visitation persist until emancipation of the child or the

death of a party to the custody action. Id. at 633, 461 S.E.2d at 748. The decision in

McIntyre, however, was not itself concerned with the abatement of custody actions,

and its general review of statutes concerning the rights of grandparents to seek

custody against the constitutional rights of parents was only conducted to determine

how they “control[led the Supreme Court’s] interpretation of [N.C. Gen. Stat.] § 50-

13.1(a).” Id. at 634, 461 S.E.2d at 749. Cf. Sharp v. Sharp, 124 N.C. App. 357, 360,

477 S.E.2d 258, 260 (1996) (recounting the issue in McIntyre and concluding that its

“holding was narrowly limited to suits initiated by grandparents for visitation and

does not apply to suits for custody” (emphasis in original)). The sentence in McIntyre

that Plaintiff relies on constitutes dicta that, while helpful as a general statement of

the law applicable to grandparents’ interventions into custody disputes between

parents, does not resolve the legal issue raised by the particular facts of this case.

      Delving into Shoaf and earlier decisions also sheds light on the mismatch

between McIntyre and this case. Shoaf involved a “single question of law[,]” namely,

whether a consent judgment in a custody and divorce action required a father to pay

child support until age 21 when a subsequent change in the law reduced the age of




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majority to 18. 282 N.C. at 289, 192 S.E.2d at 302. In holding that the father’s

obligation ceased at age 18, the Supreme Court observed the following:

              When parents of minor children invoke the jurisdiction of
              the court on matters involving separation, support,
              custody, etc., the children become wards of the court. The
              court, thereafter has authority to force the parent to
              discharge the legal obligation to support a minor child until
              he reaches legal age. After separation, followed by action
              for divorce in which a complaint has been filed or a writ of
              habeas corpus has issued, authority to provide for the
              custody of children vests in the court in which the divorce
              proceeding is pending. “ ‘Jurisdiction rests in this (trial)
              court so 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 born of the marriage reaches the age of
              maturity, (emphasis added) whichever event shall first
              occur. (Citing many cases).” Weddington v. Weddington,
              243 N.C. 702, 92 S.E.2d 71.

Shoaf, 282 N.C. at 289-90, 192 S.E.2d at 302 (first and second emphasis added).

       Weddington and other cases therein all discuss a trial court’s jurisdiction over

a child’s custody in the context of a divorce action between the child’s parents.

Weddington, 243 N.C. at 704, 92 S.E.2d at 73 (“ ‘So soon as the “state of separation”

between husband and wife resolves itself into . . . an action for divorce . . . , the

jurisdiction . . . and authority to provide for the custody of the children of the marriage

vests in the court in which the divorce proceeding is pending. Jurisdiction rests in

this court . . . until the death of one of the parties[.]’ ” (quoting Phipps v. Vannoy, 229

N.C. 629, 632, 50 S.E.2d 906, 907-08 (1948) (additional citations omitted)); Phipps,

229 N.C. at 632, 50 S.E.2d at 907-08 (noting the trial court has jurisdiction over the


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                                         Opinion of the Court



divorce proceeding and subordinate child custody issue until the death of one of the

parties). This rule has been applied in that context alone. See, e.g., Elmore v. Elmore,

67 N.C. App. 661, 313 S.E.2d 904 (1984) (holding an action for divorce and child

custody abated upon the death of the husband under the common law and N.C. Gen.

Stat. § 28A-18-1(b)(3)); see also Latham v. Latham, 74 N.C. App. 722, 723, 329 S.E.2d

721, 722 (1985) (“[W]e rely upon the long-settled rule that a divorce action is pending

for purposes of determining custody and support until the death of one of the parties

or until the youngest child born of the marriage reaches maturity, whichever event

occurs first.”    (citing Weddington, 243 N.C. at 704, 92 S.E.2d at 73) (additional

citations omitted) (emphasis added)).3

       Constitutional law also cautions against the outcome advocated by Plaintiff.

As recognized in McIntyre, “the common law rule is that parents have a paramount

right . . . to custody, care and nurture of their children, . . . and that that right includes

the right to determine with whom their children shall associate.” 341 N.C. at 631,

461 S.E.2d at 748 (citations and internal quotation marks omitted).                       This right

generally prevails against any desire by grandparents to engage with their

grandchild. See Eakett v. Eakett, 157 N.C. App. 550, 553, 579 S.E.2d 486, 489 (2003)

(holding grandparents are entitled to custody in an action against a parent only when


       3  There is “sound reason and logic” behind the notion that all causes of action “incidental to
the marital status” abate upon the death of a party, Elmore, 67 N.C. App. at 667, 313 S.E.2d at 908,
as “no power can dissolve a marriage which has already been dissolved by act of God.” Bell v. Bell, 181
U.S. 175, 178, 45 L. Ed. 804, 807 (1901).

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there is a showing of parental unfitness, as “[t]he requirement to show unfitness if a

grandparent initiates a custody dispute is consistent with a parent’s constitutionally

protected right to the care, custody and control of the child” (citation omitted)); see

also Wellons v. White, 229 N.C. App. 164, 175, 748 S.E.2d 709, 718 (2013) (“To receive

custody under N.C. Gen. Stat. § 50-13.1(a), grandparents must prove parental

unfitness.” (citing Eakett, 157 N.C. App. at 553, 579 S.E.2d at 489)). Thus, a custody

dispute between grandparents and a parent involves a conflict between unequal

interests, Eakett at 554, 579 S.E.2d at 489, while a custody battle between two

parents involves a conflict of equal rights, see, e.g., Rosero v. Blake, 357 N.C. 193, 208,

581 S.E.2d 41, 50 (2003) (“[T]he father’s right to custody of his illegitimate child is

legally equal to that of the child’s mother”). It follows, then, that disputes between

parents are subject to different procedural standards and safeguards than those

applicable to actions between parents and non-parents:

             [U]nless a natural parent’s conduct has been inconsistent
             with his or her constitutionally protected status,
             application of the “best interest of the child” standard in a
             custody dispute with a nonparent offends the Due Process
             Clause of the United States Constitution. Furthermore, the
             protected right is irrelevant in a custody proceeding
             between two natural parents, whether biological or
             adoptive, or between two parties who are not natural
             parents. In such instances, the trial court must determine
             custody using the “best interest of the child” test.

Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 266-67 (2003) (citations omitted)

(emphasis added).


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        The constitutional right vested in parents—and not grandparents—also comes

into play when one parents dies. In McDuffie v. Mitchell, 155 N.C. App. 587, 573

S.E.2d 606 (2002), the minors’ parents divorced, with the mother receiving custody

and the father visitation. 155 N.C. App. at 588, 573 S.E.2d at 607. The mother died

and the children began living with their maternal grandmother.                              Id.    The

grandmother subsequently filed a custody suit against the father. Id. The trial court

dismissed the grandmother’s complaint and we affirmed, “not[ing] that where one

parent is deceased, the surviving parent has a natural and legal right to custody and

control of the minor children.” Id. at 589, 573 S.E.2d at 607-08 (citations omitted).

That maxim was no less true when the sole surviving parent was the non-custodial

parent of the children, id. at 589-90, 573 S.E.2d at 608, and, because the complaint

failed to allege actions inconsistent with the father’s constitutional rights as a parent,

we held that the maternal grandmother had failed to state a claim for custody, id. at

591, 578 S.E.2d at 609.4 Thus, as illustrated by McDuffie, even a non-custodial parent

ordinarily enjoys a constitutional right to the care, custody, and control of his child

that springs upon the death of the custodial parent to the exclusion of and superior

to any interest held by a grandparent.




        4 We note that, just as death results in the extinguishing of a parent’s constitutional right to
the care, custody, and control of her child, this Court has previously equated an order terminating
parental rights to “a civil death penalty.” Stann v. Levine, 180 N.C. App. 1, 11 n.9, 636 S.E.2d 214,
220 n.9 (2006) (citation and internal quotation marks omitted).

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      Because a non-custodial parent has the benefit of this constitutional right upon

the death of the custodial parent while a grandparent does not, it stands to reason

that the death of a party in a divorce and custody suit would result in the action’s

abatement while the death of the last surviving non-custodial parent would not abate

a custody action between that parent and the custodial grandparents.             Stated

differently, when the death of one party in a custody action does not result in an

automatic vestiture of custody in another by operation of a constitutional right, the

rationale for abatement as set forth in McIntyre and other decisions falters.

      Finally, statutory law presents a final hurdle to Plaintiff’s desired outcome.

Section 28A-18-1 of our general statutes provides that “[u]pon the death of any

person, all demands whatsoever, and rights to prosecute or defend any action or

special proceeding, existing in favor of or against such person, except as provided in

subsection (b) hereof, shall survive to and against the personal representative or

collector of the person’s estate.” N.C. Gen. Stat. § 28A-18-1(a) (2017) (emphasis

added). The exceptions listed in subsection (b) are limited to “rights of action in favor

of a decedent.” N.C. Gen. Stat. § 28A-18-1(b) (2017) (emphasis added). Our Supreme

Court has held that, in drafting this statute, “[t]he legislature employ[ed] language

of broad signification to describe the causes of action which survive.” McIntyre v.

Josey, 239 N.C. 109, 111, 79 S.E.2d 202, 203 (1953) (construing virtually identical

language found in N.C. Gen. Stat. § 28A-18-1(a)’s predecessor statute). The Custody



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Action at issue here was not a cause of action in favor of Mother but a complaint for

custody in favor of the Matthews and, therefore, survived Mother’s death under the

plain language of the statute.

      Having reviewed the above constitutional and statutory law, we hold that the

rule espoused in McIntyre and related cases does not apply to the Custody Action, as

it was not a dispute for the care, custody, and control of Nancy between two parents,

and there is no surviving parent vested with constitutional rights. Instead, the

Custody Action was brought by the Matthews against Mother and, following Mother’s

death, did not abate for reasons of constitutional law previously articulated by our

appellate courts and did not abate pursuant to the plain language of

Section 28A-18-1. Plaintiff offers no other grounds for abatement and, with none

appearing following our analysis, we hold the trial court properly concluded that the

Custody Action was still pending following Mother’s death.

C. Subject Matter Jurisdiction

      Having determined the trial court properly concluded the Custody Action did

not abate, we now turn to Plaintiff’s argument that he could invoke the trial court’s

jurisdiction to pursue custody of his granddaughter pursuant to Section 50-13.1.

While that statute does provide that “[a]ny . . . relative . . . may institute an action or

proceeding for the custody of [a] child,” N.C. Gen. Stat. § 50-13.1(a), we hold that this

broad language, when construed in pari materia with more specific provisions



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concerning grandparent rights to visitation and custody and considered in the context

of existing case law, does not support Plaintiff’s position.

      We acknowledge that “N.C. Gen. Stat. § 50-13.1(a) grants grandparents

standing to seek custody at any time.” Wellons, 229 N.C. App. at 174, 748 S.E.2d at

717. Our case law, however, has generally understood this broad grant to provide

grandparents with standing to bring an initial custody claim against parents, not a

new suit against non-parents who have already obtained custody by order in a prior,

ongoing action.      See Sharp, 124 N.C. App. at 363, 477 S.E.2d at 262

(“[Section] 50-13.1(a) grants grandparents the right to bring an initial suit for custody

where there are allegations that the child’s parents are unfit.” (emphasis added)),

Wellons, 229 N.C. App. at 174, 748 S.E.2d at 717 (“To receive custody under N.C. Gen.

Stat. § 50-13.1(a), grandparents must show parental unfitness.”), Eakett, 157 N.C.

App. at 553, 579 S.E.2d at 489 (“The requirement to show unfitness if a grandparent

initiates a custody dispute is consistent with a parent’s constitutionally protected

right”), and Perdue v. Fuqua, 195 N.C. App. 583, 586, 673 S.E.2d 145, 148 (2009) (“[A]

grandparent initiating a proceeding for custody [under Section 50-13.1(a)] must

allege unfitness of a parent due to neglect or abandonment.”). Furthermore, we have

held that “[N.C. Gen. Stat.] § 50-13.1(a) grants grandparents the broad privilege to

institute an action for custody or visitation, as allowed in [N.C. Gen. Stat.] §§ 50-

13.2(b1), 50-13.2A, and 50-13.5(j).” Eakett, 157 N.C. App. at 552, 579 S.E.2d at 488



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(emphasis added). One of those statutes, Section 50-13.5(j), “permits a grandparent

to petition for custody or visitation due to changed circumstances in those actions

where custody has previously been determined.” Perdue, 195 N.C. App. at 585, 673

S.E.2d at 147. Our Supreme Court has held that Section 50-13.5(j) is a “special

provision[ that] control[s the] interpretation of [Section] 50-13.1(a),” and “[w]e

therefore must read [it] . . . in conjunction with [Section] 50-13.1(a) so as to harmonize

them and give effect to consistent legislative policy.” McIntyre, 341 N.C. at 634, 461

S.E.2d at 749.

       In the instant case, Plaintiff initiated his custody claim naming the Matthews

and DSS as defendants while the Matthews’ Custody Action was, as established

supra Part II.B., still pending. Plaintiff did not file suit against an allegedly unfit

parent, but against non-parents who were previously awarded custody in the Custody

Action. And, given our holding that the Custody Action has not abated, Plaintiff’s

complaint against the Matthews is more akin to a request to modify the custody order

entered in the Custody Action under Section 50-13.5(j) than it is an initial claim for

custody under Section 50-13.1(a).5 Construing Plaintiff’s complaint in the context of

the relevant statutory provisions and the existence of a custody order in the Custody

Action, we hold that “under [Section] 50-13.5(j), the proper procedure for [Plaintiff]



       5 Indeed, Plaintiff conceded at oral argument that: (1) if the Custody Action has not abated,
then his action can only proceed as a motion in that cause; and (2) the custody order entered in the
Custody Action was valid and would survive even if the Custody Action were held to have abated.

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was to file . . . a Motion to Intervene and a Motion for Custody [in the Custody

Action].” Perdue, 195 N.C. App. at 585-86, 673 S.E.2d at 147-48. Plaintiff’s standing

is therefore limited to filing such a motion in the Custody Action, and we hold the

trial court properly concluded it lacked subject matter jurisdiction to hear Plaintiff’s

independent complaint for custody against the Matthews and DSS.

                                 III. CONCLUSION

      For the foregoing reasons, we hold the trial court properly concluded the

Custody Action had not abated and affirm its dismissal of Plaintiff’s complaint for

lack of subject matter jurisdiction.

      AFFIRMED.

      Chief Judge McGEE and Judge DILLON concur.




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