McIntosh v. McIntosh

Court of Appeals of North Carolina

McIntosh v. McIntosh

202 S.E.2d 804, 20 N.C. App. 742, 1974 N.C. App. LEXIS 2541

CourtCourt of Appeals of North Carolina

DecidedFebruary 20, 1974

DocketNo. 7421DC48

StatusPublished

This text of 202 S.E.2d 804 (McIntosh v. McIntosh) 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.

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McIntosh v. McIntosh, 202 S.E.2d 804, 20 N.C. App. 742, 1974 N.C. App. LEXIS 2541 (N.C. Ct. App. 1974).

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Opinion

CAMPBELL, Judge.

The respondent’s primary exception is to the failure of the trial judge to instruct the jury that the willful abandonment must have existed for at least six months immediately preceding the institution of the action.

The respondent concedes that the definition of “abandonment” in the charge is acceptable except on one point. There was no instruction that abandonment had to be found to have occurred continuously for a period of six months immediately prior to the filing of this action. G.S. 48-2 (3a) reads:

“For the purpose of this Chapter, an abandoned child shall be any child who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child. ...”

The respondent’s assignment of error must be sustained. An instruction as to abandonment alone without an instruction as to the time period over which the abandonment must exist is an insufficient explanation of the law arising from the facts. G.S. 1A-1, Rule 51 (a). See generally Pratt v. Bishop, 257 N.C. 486, 126 S.E. 2d 597 (1962); Boring v. Mitchell, 5 N.C. App. 550, 169 S.E. 2d 79 (1969); Annotation, “What Constitutes Abandonment or Desertion of Child by its Parent or Parents Within Purview of Adoption Laws,” 35 A.L.R. 2d 662, 675 (1954).

We therefore grant a new trial. A discussion of respondent’s other assignments of error is not necessary as they may not recur upon retrial.

New trial.

Judges Hedrick and Baley concur.

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CAMPBELL, Judge.

The respondent’s primary exception is to the failure of the trial judge to instruct the jury that the willful abandonment must have existed for at least six months immediately preceding the institution of the action.

The respondent concedes that the definition of “abandonment” in the charge is acceptable except on one point. There was no instruction that abandonment had to be found to have occurred continuously for a period of six months immediately prior to the filing of this action. G.S. 48-2 (3a) reads:

“For the purpose of this Chapter, an abandoned child shall be any child who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child. ...”

The respondent’s assignment of error must be sustained. An instruction as to abandonment alone without an instruction as to the time period over which the abandonment must exist is an insufficient explanation of the law arising from the facts. G.S. 1A-1, Rule 51 (a). See generally Pratt v. Bishop, 257 N.C. 486, 126 S.E. 2d 597 (1962); Boring v. Mitchell, 5 N.C. App. 550, 169 S.E. 2d 79 (1969); Annotation, “What Constitutes Abandonment or Desertion of Child by its Parent or Parents Within Purview of Adoption Laws,” 35 A.L.R. 2d 662, 675 (1954).

We therefore grant a new trial. A discussion of respondent’s other assignments of error is not necessary as they may not recur upon retrial.

New trial.

Judges Hedrick and Baley concur.

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202 S.E.2d 804, 20 N.C. App. 742, 1974 N.C. App. LEXIS 2541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-mcintosh-ncctapp-1974.

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