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Hixson v. Krebs12/21/1999
Appeal by petitioner from order entered 15 December 1998 by Judge W. Osmond Smith in Granville County Superior Court. Heard in the Court of Appeals 28 October 1999.
Petitioner Ross E. Hixson, Jr. appeals from an order of summary judgment entered in favor of respondent Pamela Krebs determining that respondent is entitled to one-half of the proceeds from a wrongful death settlement in the estate of the parties' daughter, Gina Renee Hixson. The record tends to show the following: Petitioner and respondent were formerly married to one another. Gina Renee Hixson and Wendy Elaine Hixson were born of the parties' marriage. Petitioner and respondent signed a separation agreement, which was incorporated into their divorce judgment in 1976, agreeing that petitioner would have custody of the parties' two minor daughters, and respondent would have visitation. Gina Hixson was eighteen years old when she was killed in an automobile accident in 1991. Petitioner qualified as administrator of his daughter's estate and instituted a wrongful death action on behalf of his daughter's estate.
Petitioner recovered $95,000 in the wrongful death action. In his official capacity as administrator of his daughter's estate, petitioner filed a declaratory action in August 1997 seeking a declaration of rights to the proceeds recovered in the wrongful death action. Respondent answered and subsequently filed a motion for summary judgment. By order entered 1 December 1997, summary judgment was granted for respondent. Petitioner appealed the summary judgment to our Court. The appeal was dismissed by this Court in an unpublished opinion on 18 August 1998 because petitioner filed suit only in his capacity as executor of the estate of Gina Renee Hixson, and the estate was not an aggrieved party entitled to appeal the summary judgment in the declaratory judgment action to determine division of the wrongful death proceeds.
Petitioner filed an identical complaint on 12 August 1998, except the second complaint was on behalf of petitioner individually as well as in his official capacity as administrator of his daughter's estate. Respondent filed an answer on 8 September 1998 and moved for summary judgment on 22 October and 5 November 1998. Petitioner also filed a motion for summary judgment on 5 November 1998. The trial court granted summary judgment in favor of respondent on 15 December 1998, and petitioner filed notice of appeal to our Court on 8 January 1999. Petitioner failed to include a table of authorities in his brief in violation of N.C.R. App. P. Rules 26(g) and 28(b)(1). Nonetheless, we will consider the arguments of the petitioner under the provisions of N.C.R. App. P. Rule 2 "to prevent manifest injustice" to petitioner.
Petitioner argues on appeal that the trial court erred in granting summary judgment for respondent because respondent has not proven the absence of a question of material fact regarding whether she abandoned her daughter before the fatal accident. Gina Hixson died without a will, and our state's Intestate Succession Act provides that:
If the intestate is not survived by a child, children or any lineal descendent of a deceased child or children, but is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share. N.C. Gen. Stat. ยง 29-15(3) (1984); see Newlin v. Gill, State Treasurer, 293 N.C. 348, 349, 237 S.E.2d 819, 820 (1977).
However, a parent who abandons her or his child may not share in the intestate estate. Chapter 31A of the North Carolina General Statutes, entitled "Acts Barring Property Rights," provides:
Any parent who has wilfully abandoned the care
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