                             NO. COA13-545

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 7 January 2014

ESTATE OF FRANCES JOYNER, HAZEL
HALL. IKE COGDELL, JOHN COGDELL,
BERTHA   C.  CLARK, JOSEPHNE  C.
SHACKLEFORD, NATHAN COGDELL AND
SAMUEL COGDELL,

     Plaintiffs,

     v.                                Lenoir County
                                       No. 12 CVS 66
JESSIE BELL JOYNER, JESSIE MAE
BRITT AND LINWOOD JOYNER, As Co
Administrators of the Estate Of
Warren Joyner,

     Defendants.


     Appeal by plaintiffs from an order entered 17 October 2012 by

Judge Phyllis M. Gorham in Lenoir County Superior Court.       Heard in

the Court of Appeals 9 October 2013.


     Wooten & Turik, PLLC,    by Dal F. Wooten,        for   plaintiff-
     appellants.

     Holtkamp Law Firm, by Lynne M. Holtkamp, for defendant-
     appellees.


     HUNTER, Robert C., Judge.


     Plaintiffs appeal from an order entered 17 October 2012 in

Lenoir County Superior Court by Judge Phyllis M. Gorham granting

defendants’ motion for summary judgment.     On appeal, plaintiffs
                                     -2-
argue there was a genuine issue of material fact with respect to

whether     Warren Joyner (“Warren”) constructively abandoned his

wife, Frances Joyner (“Frances”).          After careful review, we affirm

the trial court’s order granting summary judgment.

                                  Background

     All plaintiffs in this case are surviving siblings of Frances.

Frances died intestate on 17 January 2011 without children and

with her husband, Warren, as her only potential heir.            Warren died

intestate    on   6    February   2011,   survived   only   by   his   mother.

Plaintiffs brought this action against the co-administrators of

Warren’s estate, Jessie Mae Britt and Linwood Joyner, and Warren’s

mother, Jessie Bell Joyner (collectively “defendants”), seeking a

declaratory judgment to bar Warren and his heirs from inheriting

from Frances on the ground that Warren actually or constructively

abandoned Frances.

     Warren and Frances were married for twenty-six years and lived

in the same home until Frances’s death. They were both disabled;

Warren had kidney failure, and Frances was a double amputee with

heart failure.        Warren was unemployed for the last twenty years of

the marriage.

     The parties contest the level of care Warren provided for

Frances.    Plaintiffs claimed in depositions that: (1) Warren would
                                -3-
not take Frances to doctors visits without compensation for his

time and gas; (2) the couple ceased conjugal contact and Warren

openly engaged in homosexual relationships; (3) Warren moved into

a separate bedroom in the home he shared with Frances; and (4)

Warren refused to provide food or financial support for Frances

for at least the last six years of their marriage.      Defendants

testified at the summary judgment hearing that Warren was the

primary caretaker of Frances and was a loving, caring husband, and

that Warren helped Frances around the house, cooked meals for her,

checked her blood sugar, and provided her medication.

     At the conclusion of deposition presentation and testimony at

the hearing on defendants’ motion for summary judgment, the trial

court granted summary judgment for defendants.   Plaintiffs timely

appealed.

                             Discussion

             I.   Whether Summary Judgment was Proper

     Plaintiffs’ sole argument on appeal is that the trial court

erred in granting defendants’ motion for summary judgment.   After

careful review, we affirm.

     “Our standard of review of an appeal from summary judgment is

de novo; such judgment is appropriate only when the record shows

that ‘there is no genuine issue as to any material fact and that
                                     -4-
any party is entitled to a judgment as a matter of law.’” In re

Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)

(quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385

(2007)).     When reviewing a grant of summary judgment “evidence

presented by the parties must be viewed in the light most favorable

to the non-movant.”        Bruce-Terminix Co., v. Zurich Ins. Co., 130

N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).            “Summary judgment

is appropriate where the movant proves that an essential element

of the claim is nonexistent or that the opposing party cannot

produce evidence to support an essential element of his claim.”

Holloway v. Wachovia Bank & Trust Co., N.A., 339 N.C. 338, 351,

452 S.E.2d 233, 240 (1994) (citation omitted).

       N.C. Gen. Stat. § 31A-1(a)(3) (2011) states that “[a] spouse

who wilfully and without just cause abandons and refuses to live

with the other spouse and is not living with the other spouse at

the time of such spouse’s death” loses intestate succession rights

in the other spouse.       N.C. Gen. Stat. § 31A-1(a)(3), (b)(1) (2011)

(emphasis added).     Plaintiffs cite Powell v. Powell, 25 N.C. App.

695, 699, 214 S.E.2d 808, 811 (1975), and Meares v. Jernigan, 138

N.C.   App   318,   321,   530   S.E.2d    883,   885-86   (2000),   for   the

proposition that a husband or wife could constructively abandon

his or her spouse under section 31A-1 without leaving the marital
                               -5-
home.   They argue that Warren’s failure to provide monetary and

emotional support amounted to constructive abandonment and that he

should be divested of his right to intestate succession as a

result. However, plaintiffs overlook the fact that Powell analyzes

abandonment under N.C. Gen. Stat. § 50-16.2(4), which was repealed

in 1995, and therefore is no longer controlling.    Act of Oct. 1,

1995, ch. 319, sec. 1, 1995 N.C. Sess. 641.        Meares analyzes

section 31A-1(a)(3) and quotes language from Powell to support the

proposition that a husband or wife could constructively abandon

his or her spouse without leaving the marital home, but the

decision stops short of reaching all elements in section 31A-1.

Meares, 138 N.C. App at 321-22, 530 S.E.2d at 886.     Our Supreme

Court has made clear that abandonment alone is insufficient to

deprive a spouse of intestate succession rights under section 31A-

1.   In Locust v. Pitt Cnty. Mem’l Hosp., Inc., 358 N.C. 113, 118,

591 S.E.2d 543, 546 (2004), the Supreme Court held that “not living

with the other spouse at the time of such spouse’s death” is a

necessary element of section 31A-1.

          Notably, under the wording of the statute,
          intent to abandon and abandonment even when
          combined, are insufficient to preclude an
          abandoning spouse from intestate succession.
          The abandoning spouse must also “not [be]
          living with the other spouse at the time of
          such spouse’s death.” N.C.G.S. § 31A-1. This
          Court has held that a spouse may abandon the
                                -6-
           other spouse without physically leaving the
           home, thus likely prompting the legislature to
           include the additional requirement in N.C.G.S.
           § 31A-1. Because absence from the marital home
           is   an   element   under   the   statute,   a
           determination of spousal preclusion from
           intestate succession cannot be made until the
           death of the other spouse.

Id. (emphasis added) (citations omitted). Because it is undisputed

that Warren was not “absen[t] from the marital home” at the time

of Frances’s death, but was merely sleeping in a separate bedroom,

plaintiffs failed to meet this required element of section 31A-1.

See id.   Accordingly, we affirm the trial court’s entry of summary

judgment in defendants’ favor. See Holloway, 339 N.C. at 351, 452

S.E.2d at 240 (“Summary judgment is appropriate where the movant

proves that an essential element of the claim is nonexistent or

that the opposing party cannot produce evidence to support an

essential element of his claim.”).

     As plaintiffs failed to cite Locust in their brief, we remind

counsel of the duty of candor toward the tribunal, which requires

disclosure of known, controlling, and directly adverse authority.

See N.C. Rev. R. Prof. Conduct 3.3(a), (a)(2) (2012) (“A lawyer

shall not knowingly: . . . fail to disclose to the tribunal legal

authority in the controlling jurisdiction known to the lawyer to

be directly adverse to the position of the client and not disclosed

by opposing counsel[.]”). While the duty to disclose Locust rests
                               -7-
upon plaintiffs, defendants also failed to cite the case.     We

remind counsel of the need to be diligent in finding controlling

authority.

                           Conclusion

    Because plaintiffs failed to establish an element of their

claim, we affirm the trial court’s order granting defendants’

motion for summary judgment.


    AFFIRMED.

    Judges BRYANT and STEELMAN concur.
