In re Morgan

Court of Appeals of North Carolina

In re Morgan

322 S.E.2d 778, 71 N.C. App. 614, 1984 N.C. App. LEXIS 3913

CourtCourt of Appeals of North Carolina

DecidedDecember 4, 1984

DocketNo. 8419SC271

StatusPublished

This text of 322 S.E.2d 778 (In re Morgan) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Morgan, 322 S.E.2d 778, 71 N.C. App. 614, 1984 N.C. App. LEXIS 3913 (N.C. Ct. App. 1984).

Pincite

Opinion

WELLS, Judge.

This appeal presents one question, the propriety of summary judgment on the issue of abandonment. “A motion for summary judgment is properly granted under N.C. Gen. Stat. § 1A-1, Rule 56(c) of the Rules of Civil Procedure ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.’ Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982).” Dumouchelle v. Duke University, 69 N.C. App. 471, 317 S.E. 2d 100 (1984). When the controverted issue involves subjective intent, credibility becomes critical and summary judgment is generally inappropriate. Johnson v. Insurance Co., 300 N.C. 247, 266 S.E. 2d 610 (1980) (fraudulent intent); Cochran v. Piedmont Publishing Co., 62 N.C. App. 548, 302 S.E. 2d 903, disc. rev. denied and appeal dismissed, 309 N.C. 819, 310 S.E. 2d 348 (1983) (actual malice).

In order to prevail here, petitioners had to conclusively establish that respondent had “willfully abandoned” Tonya' for at least six months preceding the action. N.C. Gen. Stat. §§ 48-5 and 48-2(1) (Supp. 1983). Simply showing abandonment would not suffice; the abandonment must be wilful. In re Adoption of Hoose, 243 N.C. 589, 91 S.E. 2d 555 (1956); In re Maynor, 38 N.C. App. 724, 248 S.E. 2d 875 (1978). Wilfulness requires some conscious choice purposely made, Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 182 S.E. 2d 553, reh. denied, 279 N.C. 397, 183 S.E. 2d 241 (1971), or conduct without just cause, excuse, or justification. State v. McCoy, 304 N.C. 363, 283 S.E. 2d 788 (1981). Actions which are the product of coercion or duress are not wilful. In re Clark v. Jones, 67 N.C. App. 516, 313 S.E. 2d 284 (1984); see also State v. Strickland, 307 N.C. 274, 298 S.E. 2d 645 (1983); 94 C.J.S. Willful (1956). In Clark, we vacated an order which found that respondent mother had wilfully abandoned her child, where the trial court failed to address evidence that she had moved away because of the violent behavior of her husband. And in Maynor we overturned a jury’s finding of wilful abandonment [617]*617where the father had been in prison, without knowledge of his son’s whereabouts and without paying any support. Since the father had attempted to have relatives find the child, and since his imprisonment prevented payment of support, the evidence did not suffice to support a verdict of wilful abandonment.

In the present case, petitioners produced a forecast of evidence which tended to show that respondent had not communicated with Tonya since 1979 and had not furnished any support. Respondent’s forecast of evidence tended to show the following: During the marriage petitioner Rickie Morgan and respondent fought almost constantly, and respondent suffered numerous violent assaults from her physically superior husband. She was physically thrown out of the house by Rickie Morgan, who refused to let her take Tonya with her. Because of her upset emotional state and lack of family support, respondent then consented to leaving Tonya with petitioner and his parents. The Morgans hindered respondent’s visitations, abusing her verbally and on one occasion threatening to kill her. This conflict upset Tonya and respondent consciously chose to minimize contact with Tonya to avoid disturbing her. Respondent tried to contact Tonya and offered to pay support, but these attempts were obstructed and refused by the Morgans. Respondent remarried in 1980 and settled in Washington, working steadily at her husband’s wholesale company. She continued to desire and hope for an eventual reunion with her daughter, and kept informed of her progress through other contacts in the community.

This forecast of evidence raises a genuine issue of material fact as to whether respondent’s lack of contact with Tonya was compelled by the petitioners’ behavior and was because of concern for the well-being of Tonya and for her own physical safety; and whether any decision by respondent to avoid contact with Tonya was the product of petitioners’ abusive and coercive behavior and thus not wilful. In re Clark, supra; In re Maynor, supra. Summary judgment was, therefore, improvidently granted.

Reversed.

Judges Arnold and Becton concur.

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WELLS, Judge.

This appeal presents one question, the propriety of summary judgment on the issue of abandonment. “A motion for summary judgment is properly granted under N.C. Gen. Stat. § 1A-1, Rule 56(c) of the Rules of Civil Procedure ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.’ Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982).” Dumouchelle v. Duke University, 69 N.C. App. 471, 317 S.E. 2d 100 (1984). When the controverted issue involves subjective intent, credibility becomes critical and summary judgment is generally inappropriate. Johnson v. Insurance Co., 300 N.C. 247, 266 S.E. 2d 610 (1980) (fraudulent intent); Cochran v. Piedmont Publishing Co., 62 N.C. App. 548, 302 S.E. 2d 903, disc. rev. denied and appeal dismissed, 309 N.C. 819, 310 S.E. 2d 348 (1983) (actual malice).

In order to prevail here, petitioners had to conclusively establish that respondent had “willfully abandoned” Tonya' for at least six months preceding the action. N.C. Gen. Stat. §§ 48-5 and 48-2(1) (Supp. 1983). Simply showing abandonment would not suffice; the abandonment must be wilful. In re Adoption of Hoose, 243 N.C. 589, 91 S.E. 2d 555 (1956); In re Maynor, 38 N.C. App. 724, 248 S.E. 2d 875 (1978). Wilfulness requires some conscious choice purposely made, Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 182 S.E. 2d 553, reh. denied, 279 N.C. 397, 183 S.E. 2d 241 (1971), or conduct without just cause, excuse, or justification. State v. McCoy, 304 N.C. 363, 283 S.E. 2d 788 (1981). Actions which are the product of coercion or duress are not wilful. In re Clark v. Jones, 67 N.C. App. 516, 313 S.E. 2d 284 (1984); see also State v. Strickland, 307 N.C. 274, 298 S.E. 2d 645 (1983); 94 C.J.S. Willful (1956). In Clark, we vacated an order which found that respondent mother had wilfully abandoned her child, where the trial court failed to address evidence that she had moved away because of the violent behavior of her husband. And in Maynor we overturned a jury’s finding of wilful abandonment [617]*617where the father had been in prison, without knowledge of his son’s whereabouts and without paying any support. Since the father had attempted to have relatives find the child, and since his imprisonment prevented payment of support, the evidence did not suffice to support a verdict of wilful abandonment.

In the present case, petitioners produced a forecast of evidence which tended to show that respondent had not communicated with Tonya since 1979 and had not furnished any support. Respondent’s forecast of evidence tended to show the following: During the marriage petitioner Rickie Morgan and respondent fought almost constantly, and respondent suffered numerous violent assaults from her physically superior husband. She was physically thrown out of the house by Rickie Morgan, who refused to let her take Tonya with her. Because of her upset emotional state and lack of family support, respondent then consented to leaving Tonya with petitioner and his parents. The Morgans hindered respondent’s visitations, abusing her verbally and on one occasion threatening to kill her. This conflict upset Tonya and respondent consciously chose to minimize contact with Tonya to avoid disturbing her. Respondent tried to contact Tonya and offered to pay support, but these attempts were obstructed and refused by the Morgans. Respondent remarried in 1980 and settled in Washington, working steadily at her husband’s wholesale company. She continued to desire and hope for an eventual reunion with her daughter, and kept informed of her progress through other contacts in the community.

This forecast of evidence raises a genuine issue of material fact as to whether respondent’s lack of contact with Tonya was compelled by the petitioners’ behavior and was because of concern for the well-being of Tonya and for her own physical safety; and whether any decision by respondent to avoid contact with Tonya was the product of petitioners’ abusive and coercive behavior and thus not wilful. In re Clark, supra; In re Maynor, supra. Summary judgment was, therefore, improvidently granted.

Reversed.

Judges Arnold and Becton concur.

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322 S.E.2d 778, 71 N.C. App. 614, 1984 N.C. App. LEXIS 3913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-morgan-ncctapp-1984.

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