Opinion
No. 05-695.
Filed April 4, 2006.
New Hanover County No. 99 CVD 1780.
Appeal by Marilyn F. Pusey from order entered 3 January 2005, nunc pro tunc 20 December 2004, by Judge Shelly S. Holt in New Hanover County District Court. Heard in the Court of Appeals 27 February 2006.
Maryellen K. Corbett for appellant Marilyn F. Pusey.
Smith, Smith, Harjo, by Jennifer Harjo for intervenor-appellee.
Marilyn F. Pusey (appellant) appeals from an order of the trial court denying her motions to intervene and for visitation. The facts relevant to this appeal are as follows: Felicity Ann Jordan was born on 3 August 1996. Colby Ann Young is the child's mother and David A. Jordan is the child's father. Lou Ann Estes is the child's maternal grandmother. On 15 October 1999, an order was entered granting Estes temporary custody of the child. Subsequently, Young unilaterally removed the child from Estes's home. Estes filed a motion to intervene and a complaint for custody. On 3 July 2000, the trial court heard the matter, and determined that both Young and Jordan were unfit to exercise custody or visitation. Accordingly, on 10 November 2000, the New Hanover County District Court entered an order awarding custody of the child to Estes.
On 17 September 2004, Marilyn F. Pusey (appellant), the child's paternal grandmother, filed motions to intervene and for visitation. Appellant simply alleged that she was the child's grandmother and asked that she be allowed to intervene and be granted visitation. Estes moved to dismiss. On 3 January 2005, the trial court entered an order denying the motion to intervene and dismissing the motion for visitation. Pusey appeals.
We first consider whether the trial court erred by denying appellant's motion to intervene. Appellant contends that there was an ongoing custody dispute and that the child was not living in an "intact family," and thus she had standing to intervene.
After careful review of the records, briefs and contentions of the parties, we affirm. This Court has stated that:
Dismissal of a complaint is appropriate "(1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim." When a court considers a motion to dismiss, "all allegations of the complaint are deemed true."
Eakett v. Eakett, 157 N.C. App. 550, 552, 579 S.E.2d 486, 488 (2003). Here, appellant's motions to intervene and for visitation did not state a cause of action even if all of the allegations in the motions are taken as true.
"Under limited circumstances, grandparents have standing to sue for visitation of their grandchild." Sloan v. Sloan, 164 N.C. App. 190, 193, 595 S.E.2d 228, 230 (2004) (citing Montgomery v. Montgomery, 136 N.C. App. 435, 436, 524 S.E.2d 360, 362 (2000)). In Montgomery, this Court stated that those limited circumstances are as follows:
First, N.C.G.S. § 50-13.2(b1) states that "an order for custody of a minor child may provide visitation rights for any grandparent of the child as the court in its discretion deems appropriate".
Second, N.C.G.S. § 50-13.2A, entitles a grandparent to seek visitation when the child is "adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child."
Third, N.C.G.S. § 50-13.5(j) entitles a grandparent to seek visitation "in any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7."
Finally, N.C.G.S. § 50-13.1(a) entitles a grandparent to "institute an action or proceeding for custody" of their grandchild. However, . . . grandparents are not entitled to seek visitation under N.C.G.S. § 50-13.1(a) when there is no ongoing custody proceeding and the grandchild's family is intact. Id. at 436-37, 524 S.E.2d at 362 (citations omitted).
In the case sub judice, appellant merely alleged that she was the child's grandmother. Appellant failed to allege any of the grounds cited in Montgomery to support her motion to intervene, and none are apparent on the record. First, there was no ongoing custody dispute. N.C. Gen. Stat. § 50-13.1(a); See also Eakett, 157 N.C. App. at 552, 579 S.E.2d at 488 ("G.S. § 50-13.2(b1) allows grandparents to receive visitation privileges as part of an ongoing custody dispute."). Estes was awarded custody in 2000; appellant filed her motions in 2004. In the interim, nothing in the record suggests that either Young or Jordan contested Estes's custody, or that custody was litigated in any way. See Fisher v. Fisher, 124 N.C. App. 442, 446, 477 S.E.2d 251, 253 (1996) ("It is only when the custody of a child is `in issue' or `being litigated' that the grandparents are entitled to relief pursuant to N.C. Gen. Stat. § 50-13.2(b1)."). Second, there is no allegation that appellant and the child had a "substantial relationship." N.C. Gen. Stat. § 50-13.2A (2005). Third, there is no allegation of "changed circumstances." N.C. Gen. Stat. § 50-13.5(j) (2005). Thus, because no statutory grounds for visitation were alleged, the trial court properly concluded appellant was not entitled to intervene in the matter.
Because resolution of the above argument is dispositive of the appeal, consideration of the remaining arguments is moot. Accordingly, we affirm the trial court's order.
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).