229 N.C. App. 164
N.C. Ct. App.2013Background
- Mr. White and Ms. Wellons married in 2003; their child lived with Wellons and the Grandparents in New Hanover County after birth.
- White served in the Marines; divorce occurred in 2005 with Wellons as primary custodian; White’s ability to provide a stable residence was in question.
- A 4 April 2006 custody order gave joint legal custody but Wellons had primary physical custody and White was to gain more custody when residency was suitable; White owed $820 monthly child support.
- A 30 November 2006 temporary custody order allowed Grandparents to intervene and granted White primary custody with Wellons visitation and a defined exchange arrangement.
- A 28 December 2007 custody order solidified White’s primary custody and granted Wellons and Grandparents visitation; subsequent interim orders and social services investigations occurred.
- In 2011–2012, after alleged neglect investigations and ex parte orders, the court adopted new visitation structures and ultimately held White in contempt in July 2012, which this appeal challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of grandparents to seek visitation | White: grandparents lacked standing to pursue visitation or related motions | White: statutes confer standing only in limited contexts; question remains unsettled | Grandparents had standing under applicable statutes |
| Validity of grandparent visitation award on appeal | White: improper to grant visitation when he is a fit parent and after initial custody actions | White: visitation was sought during ongoing dispute and statues apply | Jurisdiction to review grandparent visitation arguments was lacking; dismissed/precluded as collateral attack |
| Constitutionality of grandparent visitation statutes | White: statutes unconstitutional | White: statutes constitutional as exercised through existing orders | Constitutionality not reached; barred by law-of-the-case and collateral-attack principles |
| Civil contempt order and purge mechanism | White: contends contempt was improperly ordered | White: contends contempt was proper under prior orders | Contempt reversed; order failed to specify purge method or purge date |
Key Cases Cited
- McIntyre v. McIntyre, 341 N.C. 629 (1995) (grandparent standing for custody; unfitness standard)
- Sharp v. Sharp, 124 N.C. App. 357 (1996) (intact-family concept; standing for visitation)
- Eakett v. Eakett, 157 N.C. App. 550 (2003) (intact-family rule in custody/visitation disputes)
- Quesinberry v. Quesinberry, 196 N.C. App. 118 (2009) (standing during ongoing custody dispute; visitation awards)
- Dunlap v. Dunlap, 81 N.C. App. 675 (1986) (final vs. interlocutory nature of custody orders)
- Brewer v. Brewer, 139 N.C. App. 222 (2000) (finality requirements for appeal of custody/visitation orders)
- Cox v. Cox, 133 N.C. App. 221 (1999) (purge-mechanism requirements in civil contempt)
- Scott v. Scott, 157 N.C. App. 382 (2003) (purge-conditions must be specific in contempt orders)
- Wells v. Wells, 92 N.C. App. 226 (1988) (collateral attack prohibition in contempt context)
- Thrasher v. Thrasher, 4 N.C. App. 534 (1969) (collateral attack vs. direct appeal; proper remedy is appeal)