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In re Estate of Lunsford4/7/2005
e," "affection," "support," and "maintenance"); Wells v. Wells, 227 N.C. 614, 618, 44 S.E.2d 31, 34 (1947) ("' arents are, regardless of any statute, under a legal as well as a moral duty to support, maintain, and care for their minor children.'" (citation omitted)). Thus, we do not read McKinney to suggest that the duties of "care" and "maintenance" are distinct and severable for purposes of the definition of abandonment in section 31A-2.
The decision of the Court of Appeals in Davis v. MacMillan bolsters this conclusion. See Davis v. MacMillan, 148 N.C. App. 248, 558 S.E.2d 210, disc. rev. denied, 355 N.C. 490, 563 S.E.2d 564 (2002). Davis construed N.C.G.S. § 97-40, a statute which prohibits the distribution of workers' compensation death benefits to "a parent who has willfully abandoned the care and maintenance of his or her child." Id. at253, 558 S.E.2d at 214(quoting N.C.G.S. § 97-40 (1987)). In Davis, the plaintiff argued that he was entitled to receive such benefits even if he had abandoned the "care" of his minor child prior to the child's death because he continued to pay child support and thus did not abandon the child's "maintenance." Id. at 252-53, 558 S.E.2d at 213-14. The Court of Appeals rejected this argument, holding that "the words 'care and maintenance' are not to be read separately but instead combined to define a parent's overall responsibilities." Id. at 253, 558 S.E.2d at 214. In support of this construction, the Court of Appeals looked to the phrasing of the exception in N.C.G.S. § 97-40, which provides that anabandoning parent may receive workers' compensation benefits if the parent "'resumed [his or her] care and maintenance'" and continued the same for at least one year until the child's death or majority. Id. (quoting N.C.G.S. § 97-40). The Court of Appeals reasoned that if the abandonment of two independent duties were required to bar a parent from sharing in workers' compensation death benefits, "the renewed assumption of either care or maintenance" for a year prior to the child's death or majority "would necessarily rehabilitate the parent." Id. (emphasis added). Thus, the Court of Appeals concluded, the fact that the same "care and maintenance" language was employed in both parts of the statute demonstrates that "the words are indivisible, representing a single concept." Id.
We believe this reasoning is persuasive and applicable to the case at bar. The operative language in N.C.G.S. § 31A-2 is nearly identical to that in N.C.G.S. § 97-40. Both statutes provide that a parent who has abandoned the "care and maintenance" of a child loses the right to receive a specified benefit upon the child's death. And both provide an exception when the parent has resumed the "care and maintenance" of the child at least one year prior to the child's death or majority. Accordingly, we reject Lunsford's argument that a parent is not precluded from inheriting under N.C.G.S. § 31A-2 if that parent abandons the "maintenance" but not the "care" of his or her child.
Lunsford next argues that under the Pratt definition of abandonment, even sporadic and occasional contacts with a childforeclose a determination that a parent possessed "a settled purpose to forego all parental duties and relinquish all parental claims to the child." McKinney, 357 N.C. at 489, 586 S.E.2d at 263 (quoting Pratt, 257 N.C. at 501, 126 S.E.2d at 608). According to Lunsford, abandonment requires "the cessation of meaningful relations, obstinate refusal and outright neglect of legal obligations," and a parent who has made "some effort" to care or provide for the child cannot be said to have abandoned that child.
Such a definition appears nowhere in our case law and overstates the threshold f
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