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authoritative.
NO. COA05-256
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December
2005
RUTH D. RHODES, Mother
and Personal Representative
of the Estate,
and
CARSON L. KELLY, Father, of
RICHARD DELL KELLY, Deceased
Employee,
Plaintiffs,
v. North
Carolina Industrial Commission
I.C. File No. 074153
PRICE BROTHERS, INC.,
Employer,
and
TRANSCONTINENTAL INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal by Plaintiff-Mother from opinion and award entered 11
October 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 November
2005.
Archibald
Law Office, by C. Murphy Archibald, for plaintiff-mother-appellant.
Shawna
Davis Collins, for plaintiff-father-appellee.
Jones,
Hewson & Wollard, by R.G. Spratt, III, for defendant-
appellees.
WYNN, Judge.
Under section 97-40 of the North Carolina General Statutes,
a parent who willfully abandons the care and maintenance of his or her child is
not eligible to receive workers’ compensation death benefits. In this case, the mother of a deceased son
covered under the Workers’ Compensation Act, contends that the full Commission
erroneously found that the father did not willfully abandon his son. Because there was competent evidence to
support the full Commission’s findings of fact that the father regularly
visited and communicated with his son, sent him cards and gifts, and made all
his child support payments in a timely manner, we affirm the full Commission’s
conclusion that the father did not abandon his son.
On 1 September 2000, Richard Dell Kelly died as a result of
the injuries he sustained from an accident in a vehicle owned by his employer
Defendant Price Brothers, Inc. Richard
died intestate leaving his mother (Ruth D. Rhodes) and father (Carson L. Kelly)
as his sole surviving lineal heirs.
Defendants acknowledged that Richard’s death was compensable
under the Workers’ Compensation Act but have not paid the death benefits due to
a dispute between the parents as to who is entitled to receive the
benefits. At a hearing before Deputy
Commissioner Adrian Phillips, Ms. Rhodes asserted that Mr. Kelly was “not
entitled to any death benefits because his behavior after the parents’ divorce
constitutes abandonment of the deceased employee.” Deputy Commissioner Phillips concluded that the death benefits
should be distributed equally between Ms. Rhodes and Mr. Kelly. Following the full Commission’s affirmance
of the opinion and award of Deputy Commissioner Phillips, Ms. Rhodes appealed
to this Court.
___________________________________________
On appeal, Ms. Rhodes argues that the full Commission erred
in (1) denying her motion to add additional evidence to the record and (2)
concluding that Mr. Kelly did not willfully and wrongfully abandon the care and
maintenance of Richard.
First, Ms. Rhodes contends that the full Commission erred in
denying her motion to add additional evidence, i.e. a 1986 Separation Agreement
and record of child support payments.
The question of whether to take additional evidence is addressed to the
sound discretion of the full Commission, and its decision is not reviewable on
appeal in the absence of a manifest abuse of that discretion. Allen v. Roberts Elec. Contrs., 143
N.C. App. 55, 66, 546 S.E.2d 133, 141 (2001).
The full Commission did not manifestly abuse its discretion in denying
Ms. Rhodes’s motion to add additional evidence.
Ms. Rhodes also argues that the full Commission erred in
concluding that Carson Kelly did not willfully and wrongfully abandon the care
and maintenance of Richard. We
disagree.
This Court’s standard for reviewing an appeal from the full
Commission is limited to determining “whether any competent evidence supports
the Commission’s findings of fact and whether the findings of fact support the
Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352
N.C. 109, 116, 530 S.E.2d 549, 553 (2000).
The full Commission’s findings of fact “are conclusive on appeal when
supported by competent evidence,” even if there is evidence to support a
contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282
S.E.2d 458, 463 (1981), and may be set aside on appeal only “when there is a
complete lack of competent evidence to support them[.]” Young v. Hickory
Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).
Section 97-40 of the North Carolina General Statutes
prohibits distribution of death benefit compensation to:
a parent who
has willfully abandoned the care and maintenance of his or her child and who
has not resumed its care and maintenance at least one year prior to the first
occurring of the majority or death of the child and continued its care and
maintenance until its death or majority.
N.C.
Gen. Stat. §97-40 (2004). “[T]he
analysis of whether a parent has ‘willfully abandoned the care and maintenance’
of a child requires the consideration of numerous factors: the parent’s display
of love, care, and affection for the child and the parent’s financial support
and maintenance of the child.” Davis
v. Trus Joist MacMillan, 148 N.C. App. 248, 253, 558 S.E.2d 210, 214, disc.
review denied, 355 N.C. 490, 563 S.E.2d 564 (2002).
In her brief, Ms. Rhodes argued that the following assignments
of error were unsupported by any competent evidence:
5. Plaintiff
Carson Lydell Kelly visited with Richard Dell Kelly on a regular basis between
the time of the separation of the parties until Richard Dell Kelly reached the
age of majority, with the exception of one time period when Richard Dell Kelly
was approximately fifteen years of age.
6. When
Richard Dell Kelly was approximately fifteen years of age, he and his
step-mother, Shelia Kelly, had a disagreement that lasted for approximately six
to nine months. During this time
period, Richard Dell Kelly did not go to his father’s home to visit; however,
Carson Lydell Kelly kept in contact with his son on a weekly basis by way of
e-mails.
***
8. Plaintiff
Carson Lydell Kelly sent cards and gifts on a regular basis for holidays and
the birthdays of plaintiffs’ minor children, as well as visited with the minor
children during the holidays.
Our review of the record on appeal shows there is competent
evidence to support the full Commission’s findings of fact. Morrison, 304 N.C. at 6, 282 S.E.2d
at 463. Findings of fact five and six
are supported by Mr. Kelly’s testimony that he and Richard went on a camping
trip together when Richard was seventeen.
Shelia Kelly, Mr. Kelly’s wife, testified that when Richard was fifteen
years old, they had a disagreement and Richard refused to visit his father
until he was sixteen years old. She
stated that following that argument Richard resumed visitation with his father. Tammy Kelly, Richard’s aunt, testified that
during the period Richard did not visit his father, Richard and Mr. Kelly
communicated through instant message and email once a week. Supporting finding of fact eight, Shelia
Kelly testified that if Richard did not spend a holiday or birthday with his father,
Mr. Kelly sent cards and gifts to him.
Mr. Kelly also testified that he sent a birthday card every year. We hold that these facts support the full
Commission’s findings of fact.
Moreover, the full Commission’s findings of fact that Mr.
Kelly visited with Richard on a regular basis, sent him cards and gifts for
holidays and birthdays, maintained telephone contact on a regular basis, and
physically and verbally displayed affection towards Richard, support the full
Commission’s conclusion that Mr. Kelly did not abandon the care of his
son. See Davis, 148 N.C. App. at
253, 558 S.E.2d at 214. Additionally,
the full Commission’s finding that Mr. Kelly made all of his child support
payments in a timely manner and maintained a health insurance policy on Richard,
support the conclusion that Mr. Kelly did not abandon the maintenance of his
son. Id.
Accordingly, we uphold the full Commission’s Opinion and
Award which concluded that Mr. Kelly did not willfully and wantonly abandon the
care and maintenance of Richard.
Affirmed.
Judges MCGEE and GEER concur.