McIntosh v. McIntosh, 20 N.C. App. 742 (1974)

Feb. 20, 1974 · North Carolina Court of Appeals · No. 7421DC48

20 N.C. App. 742

ARLENE POLLY EASTER MANNS RICHARDSON McINTOSH, Petitioner for the Adoption of Kenith Lee McIntosh and Keith Allen McIntosh v. JANET RAE McINTOSH

No. 7421DC48

(Filed 20 February 1974)

Adoption § 2— abandonment of child — insufficiency of instructions

In this adoption proceeding seeking a determination of abandonment, the trial court's instruction as to abandonment alone without an instruction that abandonment had to be found to have occurred continuously for a period of six months immediately prior to the filing of the action was an insufficient explanation of the law arising from the facts. G.S. 48-2 (3a).

Appeal by respondent from Henderson, District Judge, at the 16 July 1973 Session of Forsyth County, the General Court of Justice, District Court Division.

This is a civil action pursuant to adoption proceedings for a determination of abandonment within the meaning of G.S. Chapter 48, and for the appointment of a guardian ad litem.

Respondent appellant Janet Rae McIntosh was divorced from Kenith W. McIntosh in October of 1967 in Seattle, Washington. Custody of the two children, Kenith Lee McIntosh and Keith Allen McIntosh, was awarded to the father, Kenith W. McIntosh. At Christmas 1968, Mr. McIntosh and the children met the respondent in downtown Seattle, and thereupon she went shopping with the children. Apparently, this was the last time the respondent communicated with the children until the filing of this petition in August of 1971. Mr. McIntosh and the children, in February of 1969, made a short visit to Oregon, then subsequently moved to Denver, Colorado, Memphis, Tennessee and finally to Winston-Salem, North Carolina. In the meantime, Mr. McIntosh had married the petitioner, Arlene McIntosh.

The petition alleges that respondent willfully abandoned the children on or about 25 December 1968 and that said condition continued for more than six months next preceding the institution of this action.

Respondent contends that at no time after February 1969 did she know the whereabouts of the children and thus could not be held to have willfully abandoned them. From a verdict in favor of the petitioner, finding abandonment, the respondent appealed.

White & Crumpler by Michael J. Lewis for petitioner ap-pellee.

Randolph and Randolph by Clyde C. Randolph, Jr., for respondent appellant.

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.