               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA16-221

                                Filed: 20 December 2016

Davidson County, No. 15 CVD 2052

MOLLY PAIGE CORBETT, Plaintiff

              v.

TRACEY LYNCH, Defendant.


        Appeal by Plaintiff from order entered 2 November 2015 by Judge April C.

Wood in Davidson County District Court. Heard in the Court of Appeals 6 September

2016.


        Black, Slaughter & Black, P.A., by Carole R. Albright and T. Keith Black, for
        the Plaintiff-Appellant.

        Allman Spry Davis Leggett & Crumpler, P.A., by Kim R. Bonuomo, for the
        Defendant-Appellee.


        DILLON, Judge.


        Plaintiff Molly Paige Corbett (“Stepmother”) commenced this action in district

court seeking custody of her stepchildren, “Max” and “Allison,”1 who had been

orphaned after the recent death of Stepmother’s husband, their father, Jason

Corbett.2 On appeal, Plaintiff challenges the district court’s order dismissing her




        1Pseudonyms.
        2 Stepmother was indicted for second-degree murder and voluntary manslaughter in
connection with Mr. Corbett’s death. At the time of this appeal, she is still awaiting trial.
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                                  Opinion of the Court



custody petition in this action due to the award of guardianship of the children to Mr.

Corbett’s sister, Defendant Tracey Lynch (“Aunt”), in a separate superior court

proceeding. We affirm.

                                    I. Background

      Max and Allison spent their early years living with their biological parents in

Ireland, where they are citizens. In 2006, their biological mother passed away. In

2008, Stepmother traveled from the United States to Ireland to serve as the children’s

au pair. In 2011, Mr. Corbett and Stepmother moved to the United States with the

children. Shortly thereafter, Mr. Corbett and Stepmother were married. However,

despite Stepmother’s desire to adopt Max and Allison, Mr. Corbett did not consent to

a stepparent adoption. In 2015, Mr. Corbett died, leaving Max and Allison orphaned.

In his will, Mr. Corbett named Aunt and Aunt’s husband as testamentary guardians

for both minor children.

      On 4 August 2015, Stepmother filed a petition for guardianship and a petition

for stepparent adoption in superior court.

      The following day, on 5 August 2015, Stepmother filed this action in district

court for custody of the children, pursuant to N.C. Gen. Stat. § 50-13.5. Stepmother

obtained an ex parte order for temporary emergency custody pursuant to N.C. Gen.

Stat. § 50-13.5(d)(3), based on her allegation that Aunt was coming to the United

States to take the children back to Ireland with her.




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       On 7 August 2015, Aunt filed (1) applications for guardianship of the children

in the proceeding before the clerk of superior court and (2) an answer, motions to

dismiss, and a counterclaim for child custody in this district court action.

       On 17 August 2015, the clerk of superior court awarded guardianship of Max

and Allison to Aunt and her husband.3 Following a hearing in this district court

action, the district court dismissed Stepmother’s custody complaint based on the

clerk’s prior award of guardianship. Stepmother timely appealed the district court’s

dismissal of her custody action.

                                       II. Analysis

       On appeal, Stepmother argues that the district court erred in granting Aunt’s

motion to dismiss her Chapter 50 custody action, contending that the district court

did, in fact, have subject matter jurisdiction. The resolution of this matter requires

this Court to consider the jurisdictional relationship between Chapter 35A

guardianship proceedings before a clerk of superior court and a Chapter 50 custody

action before a district court judge. We conclude that the appointment of a general

guardian by the clerk of superior court in the Chapter 35A guardianship proceeding

rendered Stepmother’s Chapter 50 custody action moot. Therefore, we affirm the

district court’s order dismissing Stepmother’s Chapter 50 custody petition.




       3 The guardianship orders entered by the clerk of court were subsequently affirmed by
Superior Court Judge Theodore S. Royster on 10 February 2016.

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       Our guardianship statutes, codified in Chapter 35A, allow “any person or

corporation, including any State or local human services agency[,]” to file an

application with the clerk of superior court “for the appointment of a guardian of the

person or general guardian for any minor who [does not have a] natural guardian.”4

N.C. Gen. Stat. § 35A-1221 (2015) (emphasis added).5 In such proceeding, the clerk

conducts a hearing to determine whether the appointment of a guardian is required,

and, if so, considers the child’s best interest in determining who the guardian(s)

should be. N.C. Gen. Stat. § 35A-1223. An award of general guardianship entitles

the guardian to custody of the child. N.C. Gen. Stat. § 35A-1241(a)(1).

       Chapter 50, on the other hand, provides the district court with jurisdiction to

enter orders providing for the custody of a minor child. N.C. Gen. Stat. § 50-13.5(c)(2)

(2015). 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.” N.C. Gen. Stat. § 50-13.1. Chapter 50 custody actions

generally involve a dispute between two parents or between the parent(s) and a non-

parent. In certain emergency situations, the district court is authorized to enter a

temporary child custody order ex parte, for example, when “there is a substantial risk



       4  North Carolina has long recognized that a child’s biological mother and father are the
“natural guardians” of the child. See Bright v. Wilson, 1 N.C. 251, 252 (1800); Buchanan v. Buchanan,
207 N.C. App. 112, 119, 698 S.E.2d 485, 489 (2010). Adoptive parents, too, are “natural guardians” as
they have the same rights to the adopted child as to any child born to them. N.C. Gen. Stat. § 48-1-
106(c).
        5 A general guardian is defined as a guardian of both the ward’s person and the ward’s estate.

N.C. Gen. Stat. § 35A-1202(7).

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that the child may be abducted or removed from the State of North Carolina for the

purpose of evading the jurisdiction of North Carolina courts.” N.C. Gen. Stat. § 50-

13.5(d)(3).

       Our Supreme Court has stated that parents, as “natural guardians,” have a

“constitutionally-protected paramount right [] to custody, care, and control of their

children.” Petersen v. Rogers, 337 N.C. 397, 406, 445 S.E.2d 901, 906 (1994). And if

a person is appointed as the “general guardian” or as “guardian of the person” of a

minor child, that guardianship necessarily includes physical custody of the minor.

See N.C. Gen. Stat. § 35A-1202(10) (“‘Guardian of the person’ means a guardian

appointed . . . for the purpose of performing duties relating to the . . . custody . . . of a

ward.”). This relationship between guardianship and custody was articulated by the

Supreme Court of Rhode Island as follows:

              Permanent custody, so called, with its attendant
              responsibilities, is an incident of guardianship and parents
              are the natural guardians of their children. . . . Where, as
              here, a child has been orphaned, the appointment of a
              guardian supersedes that of a custodian since the latter is
              contained within the former.

Petition of Loudin, 101 R.I. 35, 38-39, 219 A.2d 915, 917-18 (1966) (internal citations

omitted).

       Our General Assembly has generally followed the logic articulated in Loudin

in crafting our custody and guardianship laws. Indeed, our statutes provide for an

override of a Chapter 50 custody determination by the appointment of a general



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guardian or guardian of the person: Chapter 35A allows for an eligible party to obtain

guardianship of a minor child with no living parents even if the issue of the child’s

custody has already been resolved by the district court in a Chapter 50 custody

proceeding. Chapter 35A provides that an applicant for guardianship is to include “a

copy of any . . . custody order” for the clerk’s consideration in making a decision

regarding guardianship of the child. N.C. Gen. Stat. § 35A-1221(4).

      Following appointment of a guardian, Chapter 35A provides that “[t]he clerk

shall retain jurisdiction . . . in order to assure compliance with the clerk’s orders and

those of the superior court.” N.C. Gen. Stat. § 35A-1203(b). In addition, the clerk

retains jurisdiction to “determine disputes between guardians.” N.C. Gen. Stat. §

35A-1203(c). Indeed, we have held that in the context of a dispute over the custody

of an incompetent adult child, “the district court obtains jurisdiction . . . to determine

custody only when the disabled adult child at issue has not been declared incompetent

and had a guardian appointed.” McKoy v. McKoy, 202 N.C. App. 509, 515, 689 S.E.2d

590, 594 (2010). In McKoy, we also held that “the clerk of superior court is the proper

forum for determining custody disputes regarding a person previously adjudicated an

incompetent adult and who has been provided a guardian under Chapter 35A.” Id.

at 513, 689 S.E.2d at 593.

      Thus, in the present case, the clerk properly exercised jurisdiction under

Chapter 35A to consider the application for guardianship of Max and Allison, as the

children had no natural guardian. The clerk’s jurisdiction was not divested by the ex


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parte temporary custody order already entered by the district court because Chapter

35A contemplates the clerk giving due consideration of custody awards entered by

other courts. See N.C. Gen. Stat. § 35A-1221(4) (providing that an application for

guardianship is to include a copy of any order awarding custody). Accordingly, the

clerk had jurisdiction to appoint Aunt and her husband as general guardians for Max

and Allison, an incident of which is physical custody of the children. Thus, any

modification of the clerk’s guardianship arrangement, including modification of

custody, would “require[] filing a motion . . . with the clerk under Chapter 35A rather

than filing an action for custody action in district court under Chapter 50.” McKoy,

202 N.C. App. at 511, 689 S.E.2d at 592.

      Further, we note that once the clerk of superior court entered the order

awarding general guardianship of Max and Allison to Aunt and her husband, the

Chapter 50 custody action became moot. A final determination by the district court

in Stepmother’s Chapter 50 custody action would have no practical effect on the

controversy regarding custody of the minor children, as custody was decided as part

of the guardianship proceeding. Roberts v. Madison Cnty. Realtors Ass'n, Inc., 344

N.C. 394, 398–99, 474 S.E.2d 783, 787 (1996) (“A case is ‘moot’ when a determination

is sought on a matter which, when rendered, cannot have any practical effect on the

existing controversy.”).   The “proper procedure for a court to take upon a

determination that a case has become moot is dismissal of the action[.]” Id.




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       Accordingly, we conclude that the district court properly dismissed

Stepmother’s Chapter 50 custody action.

       Our holding today, however, does not affect any jurisdiction the district court

may have to issue ex parte orders under Chapter 50 for temporary custody

arrangements where the conditions of N.C. Gen. Stat. § 50-13.5(d)(2)-(3) are met.6

       AFFIRMED.

       Judges BRYANT and STEPHENS concur.




       6  We note that Chapter 35A does provide the clerk with authority to enter a temporary, ex
parte custody order when “an emergency exists which threatens [either] the physical well-being of the
ward or constitutes a risk of substantial injury to the ward’s estate.” N.C. Gen. Stat. § 35A-1207.

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