Bethea v. McDonald

• Decision Date: 02 October 1984
• Docket Number: No. 8320DC1184,8320DC1184
• Citation: 320 S.E.2d 690,70 N.C.App. 566
• Parties: Lorenza BETHEA, Jr. v. Wanda Allred McDONALD.
• Court: North Carolina Court of Appeals

Page 690

320 S.E.2d 690

70 N.C.App. 566

Lorenza BETHEA, Jr. v. Wanda Allred McDONALD.

No. 8320DC1184.

Court of Appeals of North Carolina.

Oct. 2, 1984.

Lumbee River Legal Services, Inc. by William L. Davis, III, Pembroke, for defendant-appellant.

BRASWELL, Judge.

For her failure to comply with the terms of visitation in a custody order, the defendant-mother in a civil proceeding was held in contempt of court and ordered into the Richmond County Jail for thirty days. The defendant on appeal contends that the trial court did not possess in personam jurisdiction over her to enter such a contempt order and that the findings of fact and conclusions of law within the contempt order are not supported by the evidence.

The plaintiff-father and defendant-mother are the parents of a minor child born out of wedlock. On 7 May 1981 while the defendant was in jail for an unrelated matter, the plaintiff sued for custody of the child. The defendant answered and counterclaimed for custody. In an order entered 15 April 1982, the defendant was found to be a fit and proper person and awarded custody of the child. The plaintiff was awarded reasonable visitation rights including:

b. That the Plaintiff shall have the minor child for three weeks during the Summer, such time to be mutually agreed upon by the parties.

On 12 August 1983 the plaintiff instituted the present proceeding by filing a "Motion to Cite Defendant for Contempt of Court." This motion was accompanied by a notice, signed by the plaintiff's attorney, stating that the plaintiff would go forward with his motion on 29 August 1983. All the parties and their counsel appeared for the hearing.

From the record the evidence presented by the plaintiff through the testimony of his mother, Annie Mae Bethea, indicated that in July of 1983 she wrote a letter to the defendant asking her to let the child visit her son for three weeks in the summer. This letter was returned to her marked address unknown. At the Clerk of Court's office, the plaintiff's mother was told the defendant's current Raleigh address. She went to visit the defendant and told her that she wanted to get the child for the three weeks visitation. The defendant replied that she could not get the child ready to go that day but that he could go with her next week. Ms. Bethea returned to her home in Rockingham, but the defendant did not bring the child. She further stated that the plaintiff had not visited his child since the custody order was entered.

The defendant similarly testified that since the 1982 custody proceedings she has not heard from the plaintiff nor has he visited the child. She explained that her address had changed because she had gotten married and had moved. The defendant further testified that when Ms. Bethea came by to ask if the child could come visit for the next three weeks she explained that she needed time to clean his clothes and to prepare his things. The defendant told Ms. Bethea to come back in a week and pick him up. Ms. Bethea did not return for the child.

In her first assignment of error, the defendant contends that because the procedural requirements of G.S. 5A-23(a) were not followed the trial court was not entitled to exercise jurisdiction over her. G.S. 5A-23(a) states in pertinent part that:

Proceedings for civil contempt are either by the order of a judicial official ... or by the notice of a judicial official that the alleged contemnor will be held in contempt unless he appears at a specified reasonable time and show cause why he should be held in contempt. The order or notice may be issued on the motion and sworn statement or affidavit of one with an interest in enforcing the order, including a judge, and a finding by the judicial official of probable cause to believe there is civil contempt.

In the present case, the plaintiff's motion instigating the civil contempt proceedings was not accompanied by a sworn statement or affidavit. Secondly, no order or notice by a judicial official directing the defendant to appear and show cause why she should not be held in civil contempt was ever issued or served upon her. Despite these procedural defects, the defendant appeared in court on the scheduled date and participated in the contempt proceedings. We hold that the defendant's actions constituted a general appearance which conferred jurisdiction over her person to the court.

The North Carolina rule for determining what constitutes a general appearance has been well defined. The defendant's appearance must be for a purpose in the cause, not one merely collateral to it. The party must have asked or received some relief in the case or participated in some step taken in it. Essentially, the test of whether the defendant has made a general appearance is whether she became an actor in the cause. Williams v. Williams, 46 N.C.App. 787, 789, 266 S.E.2d 25, 27 (1980). See also Hall v. Hall, 65 N.C.App. 797, 800, 310 S.E.2d 378, 381 (1984). Thus, when the defendant came into court and answered the charges made against her in the motion requesting that she be held in contempt she made a general appearance. "[I]t has long been the rule in this jurisdiction that a general appearance ... will dispense with process and service." Williams v. Williams, supra. Therefore, through...