Darden v. Darden
| Decision Date | 09 January 1974 |
| Docket Number | No. 736DC770,736DC770 |
| Court | North Carolina Court of Appeals |
| Parties | Roy W. DARDEN v. Joan B. DARDEN. |
Cherry, Cherry & Flythe, by Ernest L. Evans, Ahoskie, for plaintiff appellant.
No counsel for defendant appellee.
Unquestionably, the court had jurisdiction to enter a temporary order of custody of the child pending a hearing. G.S. § 50--13.5(c)(2). Brandon v. Brandon, 10 N.C.App. 457, 179 S.E.2d 177 (1971). Nor would the fact that the motion and notice did not contain a request for custody hearing, avail plaintiff, because it is obvious from the order entered and the evidence at the trial on the merits that he was present, represented by counsel and presented evidence pertaining to custody. Nevertheless, the court did not enter an order Awarding custody. The order merely Denied defendant's motion for custody (although custody was not included in the motion). No judicial award of custody had been made prior thereto and none was made until the order entered on 8 June 1973. It is our opinion that the matter of custody was properly before Judge Gay.
It is further our opinion that the court committed prejudicial error in refusing to allow plaintiff to introduce evidence of defendant's adultery. While evidence of adultery does not impel a finding of unfitness of the adulterous parent, '(e)vidence of adulterous conduct, like evidence of other conduct, is relevant upon an inquiry of fitness of a person for the purpose of awarding custody of minor children to him or to her.' In re McCraw Children, 3 N.C.App. 390, 395, 165 S.E.2d 1, 4 (1968). Plaintiff was entitled to have introduced evidence, if any he had, of conduct of defendant which would have to do with her fitness to have custody of the minor child. The court's refusal to allow the evidence to come in was prejudicial error.
Additionally, the court's findings of fact with respect to alimony are not supported by the evidence. For example, the court found that 'plaintiff maliciously turned the defendant out of doors by his abusive conduct in striking the defendant and soliciting her to commit unnatural sex acts, and since the separation has failed to provide her any support'. Defendant's evidence was She further testified that plaintiff had never beaten her but had hit her. The defendant testified that plaintiff had paid the first month's rent on her trailer and had had his sons move her. There was also evidence that he had repaired the car she took when she left the home. The court found as a fact that plaintiff's one-half interest in a business in Virginia was worth over $100,000. Defendant's evidence was that the entire business was worth about $100,000. The court found that plaintiff owned a one-fifth interest in a 160--acre farm. The evidence was that he with his brothers and sisters owned the remainder...
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