Clark v. Clark

• Citation: 294 N.C. 554,243 S.E.2d 129
• Decision Date: 17 April 1978
• Docket Number: No. 64,64
• Court: North Carolina Supreme Court
• Parties: Marie Ponder CLARK v. Patricia Proffitt CLARK (Fowler), and Cecil Clark, guardian of Gene Wayne Clark, John Lloyd Clark, Gambell Clark and Gila Clark.

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243 S.E.2d 129

294 N.C. 554

Marie Ponder CLARK v. Patricia Proffitt CLARK (Fowler), and Cecil Clark, guardian

of Gene Wayne Clark, John Lloyd Clark, Gambell

Clark and Gila Clark.

No. 64.

Supreme Court of North Carolina.

April 17, 1978.

Long, McClure & Dodd, by Robert B. Long, Jr., Asheville, for plaintiff appellant.

John E. Shackelford, Riddle & Shackelford, Asheville, for defendant appellee.

SHARP, Chief Justice.

We consider first plaintiff's contentions that the trial court erred in finding her in contempt and that the Court of Appeals erred in holding that adjudication unappealable because, punishment having been withheld, she was not a party aggrieved.

With reference to her right to appeal plaintiff argues that the findings she had willfully disobeyed the court's orders providing for the custody of Gambell and Gila, if sustained, convict her of both civil contempt under G.S. 50-13.3 and criminal contempt under G.S. 5-1(4). Citing Willis v. Power Co., 291 N.C. 19, 229 S.E.2d 191 (1977) and Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967), she asserts that G.S. 5-2 permits her to appeal the adjudication of contempt even though the court has imposed no punishment. Pointing to the provision of the judgment that plaintiff "is in contempt of this Court and . . . the Court does hereby withhold punishment for said contempt, but makes said Findings as a part of the record herein," plaintiff maintains that by "withholding" punishment for her adjudged contempt the court did not thereby waive, relinquish, or abandon the right to impose punishment at a later date. On the contrary, she insists, merely "to withhold" punishment without further limitation is to retain the right to impose it in the future, and under these circumstances the order holding her in contempt "affected a substantial right" and is therefore appealable. G.S. 1-271; G.S. 1-277.

The cited cases sustain plaintiff's contentions, and we hold that she was entitled to appeal the order adjudging her in contempt. Thus, the next question is whether the record supports the trial court's findings.

In contempt proceedings the judge's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. Rose's Stores v. Tarrytown Center, supra; Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755 (1951); 3 Strong's North Carolina Index 3rd, Contempt of Court § 8 (1976). We hold that both direct and circumstantial evidence supports Judge Lacey's findings and affirm his adjudication that plaintiff is in contempt of court.

With reference to the court's finding that on 29 November 1975 plaintiff willfully refused to deliver Gila and Gambell to the Madison County Sheriff's Department so that defendant could pick them up in accordance with the court's order dated 24 November 1975, plaintiff contends that "there is no evidence she was aware of the existence or terms of the order." This contention will not withstand a scrutiny of the record, which contains evidence tending to show:

(1) At the conclusion of the hearing on 20 November 1975 Judge Lacey announced the terms of its judgment in open court. The judgment was signed on November 24th. It was filed on November 26th and copies mailed to the attorneys for the parties. Defendant had her copy on November 29th.

(2) Plaintiff was in court on 20 November 1975 when Judge Lacey announced his ruling that thereafter Gambell and Gila would visit defendant the fourth weekend of each month, except that during the current month of November the visitation would be on the fifth weekend, just nine days away. The variation for November was made after Gene or one of the other children had called Mrs. Clark's attention to the fact that they had previously made plans for the fourth weekend.

(3) The children's testamentary guardian, their Uncle Cecil Clark, had also been at the November 1975 hearing and testified

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that he was familiar with the court's order. On cross-examination he recalled that at the end of the hearing Judge Lacey had announced that defendant was to have the children on the fifth weekend in November.

(4) Sheriff Ponder testified, without objection, that on the fifth weekend in November when defendant came to his jail for the children he called his sister, Mrs. Clark, and "she said she had not seen the order; it had never been presented to her."

(5) Gene Clark, then 15 years old, when asked on cross-examination if he could "give any reason why the two girls did not go to the jail on the fifth weekend in November like the judge had said in court?" replied, ". . . it seems like I recall something about we had not gotten a copy of the order saying that they were supposed to go on the fifth weekend."

From the evidence adduced the conclusion is inescapable that on 29 November 1975 Mrs. Clark, the children, and their testamentary guardian all had knowledge of the substance and meaning of the order which Judge Lacey enunciated on November 20th, signed on November 24th, and filed on November 26th, and that Mrs. Clark, using as an excuse the fact that she did not have a copy of the order in hand, willfully failed and refused to deliver the children as required by the order. Neither receipt of a copy of the order nor knowledge of its exact words were conditions precedent to her obligation to comply with it. See Cotton Mills v. Local 584, 251 N.C. 240, 247, 111 S.E.2d 471, 475 (1959); 3 Strong's North Carolina Index 3rd, Contempt of Court § 3.1 (1977).

The court's finding that "(p)laintiff has advised Gambell and Gila Clark that they did not have to visit with the defendant or the Grandmother (Mrs. Proffitt) unless they wanted to, in violation of the Order of November 24, 1975, and other Orders of this Court" is likewise supported by competent record evidence. Gene testified that on at least one occasion plaintiff told Gambell she would not make her visit Mrs. Proffitt if the child didn't want to do it. He added, "We weren't going to force none of the kids into doing something against their will that we saw no cause to." Gila, then "nine or ten," testified that once or twice Mrs. Clark had told her that she would not have to make the visits against her will. When asked if plaintiff had ever told her she did not have to visit her mother if she didn't want to, and whether plaintiff had told John, Gila, and Gene not to go to Weaverville, Gambell, then eleven years old, replied that she could not remember. Further, Mrs. Proffitt testified that sometime early in 1976, in a telephone conversation, Mrs. Clark told her that she did not mind the children visiting with her and Mr. Proffitt, "but that they were not to go to Weaverville."

Plaintiff's assignment of error challenging the sufficiency of the evidence to support the trial court's finding that she had willfully violated the order of 24 November 1975 is overruled.

The record in this case tells a sad story. In August 1967 defendant left her husband and four children, then aged respectively eight, five, three, and two years, and for five years thereafter had no contact with them. During this time plaintiff assumed the role of mother; she gave them tender, loving care and a comfortable, secure home. The children lived happily with plaintiff and their father until his death in April 1972, and since then have lived with plaintiff. Understandably, they return plaintiff's affection and give her the love children customarily give their mother. Under these circumstances it is not surprising that plaintiff has been unwilling to share the children with their mother and has resented, and attempted to thwart, defendant's efforts to reestablish a mother's relationship with the children, as well as the court's efforts to assist defendant in doing so.

The two judges before whom this controversy has come have at all times recognized the bond of affection between plaintiff and the children and that plaintiff has earned the right to their primary custody. With judgmatical objectivity, however, the judges have weighed a consideration which plaintiff obviously has not permitted herself

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to contemplate: Her life expectancy is less than defendant's, and it is not in the children's interest that the court ignore the possibility of plaintiff's disablement or death prior to the majority of one or more of them. The testimony of her...