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In re Estate of Lunsford4/7/2005
or abandonment as defined in Pratt. Indeed, Pratt expressly held that abandonment requires neither continuous absence nor an utter lack of concern on the part of the abandoning parent. Pratt, 257 N.C. at 503, 126 S.E.2d at 609. As explained in Pratt, a child's physical and emotional needs are constant, and a parent's duties to care for and maintain a child cannot be discharged on an ad hoc, intermittent basis. Id. at 502, 126 S.E.2d at 608-09. Thus, the fact that Lunsford and Candice had "some relationship" during lulls in Lunsford's alcoholism and had formulated plans to develop their relationship does not foreclose a determination of abandonment. Abandonment is not an "'ambulatory thing the legal effects of which a delinquent parent may dissipate at will by the expression of a desire for the return of the discarded child.'" Id. at 502, 126 S.E.2d at 609 (quoting In re Adoption of Bair, 393 Pa. 296, 307, 141 A.2d 873, 879 (1958) (citation omitted)). Thus, the trial court's findings of fact amply support its conclusion that Lunsford wilfully abandoned Candice within the meaning of N.C.G.S. § 31A-2.
II.
We next address whether Lunsford falls within the second statutory exception to N.C.G.S. § 31A-2. This exception applies when an abandoning parent (1) "has been deprived of the custody of his or her child under an order of a court of competent jurisdiction" and (2) "has substantially complied with all orders of the court requiring contribution to the support of the child." N.C.G.S. § 31A-2(2).
In the instant case, the trial court determined on remand that N.C.G.S. § 31A-2(2) was inapplicable because Lunsford failed to meet the requirements of the second prong of the exception. The trial court found that the 1985 divorce decree "considered the issue of child support" but "made no order whether child support was to be paid by either parent." Reasoning that Lunsford could not substantially comply with all orders "requiring contribution" to the support of his child because "no order to pay child support was issued," the trial court concluded that the statutory exception was inapplicable to the instant facts. The Court of Appeals reversed, stating that because the district court "considered" the issue of child support, Lunsford "complied with the only order in existence addressing the question of child support" and thus fell within the scope of the exception. Lunsford II, 160 N.C. App. at 134, 585 S.E.2d at 251. It is well settled that " here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning." Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). Here, N.C.G.S. § 31A-2(2) provides that an abandoning parent may inherit from an abandoned child if the parent has "substantially complied with all orders of the court requiring contribution to the support of the child." N.C.G.S. § 31A-2(2) (emphasis added). By its express language, therefore, the statutory exception may not be invoked where a court order has not "requir " the payment of child support.
Our construction of the statute is consistent with the intent of the legislature in enacting N.C.G.S. § 31A-2. The primary rule of statutory construction is to effectuate the intent of the legislature. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 56, 213 S.E.2d 563, 569 (1975); Buck v. United States Fid. & Guar. Co., 265 N.C. 285, 290, 144 S.E.2d 34, 37 (1965). In McKinney, this Court examined the common law background and legislative history of N.C.G.S. § 31A-2 and concluded that "the legislative intent behind N.C.G.S. § 31A-2 was both to discourage parents from shirking their responsib
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