in the Court of Appeals 28 January 2019.
by Intervenor from Orders entered 26 April 2018 by Judge Mary
H. Wells and 9 October 2017 by Judge Jim Love, Jr. in
Johnston County District Court No. 07 CVD 3257.
Law Office, P.A., by Marie H. Mobley, for plaintiff-appellee.
Spence, Berkau, & McLamb, P.A., by Robert A. Spence, Jr.,
and Procedural Background
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.
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.
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.
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.
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.
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.
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.
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.
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
8. Pursuant to Rule 41(a) [x] this action
[x] all outstanding motions is/are
VOLUNTARILY DISMISSED [x] with prejudice
. . . .
10. Show Cause is made permanent. ALL OPEN ISSUES ARE
INVOLUNTARILY DISMISSED [x] WITH PREJUDICE . . .
pursuant to Rule 41(b) for failure to appear and prosecute
. . . .
15. Other TPR granted against [Defendant].
Record indicates Intervenor received no notice of these
contempt proceedings and was not served with ...