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Adams v. Langdon

Court of Appeals of North Carolina

March 19, 2019

CHRISTOPHER ADAMS, Plaintiff
v.
BRITTANY LANGDON, Defendant
v.
CHERI MALONE, Intervenor

          Heard in the Court of Appeals 28 January 2019.

          Appeal 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.

          Mobley Law Office, P.A., by Marie H. Mobley, for plaintiff-appellee.

          Spence, Berkau, & McLamb, P.A., by Robert A. Spence, Jr., for intervenor-appellant.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         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:

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 this action.

. . . .

15. Other TPR granted against [Defendant].

         The Record indicates Intervenor received no notice of these contempt proceedings and was not served with ...


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