Dobos v. Dobos

• Decision Date: 20 July 1993
• Docket Number: No. 9221DC952,9221DC952
• Citation: 431 S.E.2d 861,111 N.C.App. 222
• Court: North Carolina Court of Appeals
• Parties: Leah Gay Hines DOBOS v. Jeffrey Donald DOBOS.

Page 861

431 S.E.2d 861

111 N.C.App. 222

Leah Gay Hines DOBOS v. Jeffrey Donald DOBOS.

No. 9221DC952.

Court of Appeals of North Carolina.

July 20, 1993.

Wendell Schollander and David F. Tamer, Winston-Salem, for plaintiff-appellee.

White and Crumpler, by G. Edgar Parker and Joan E. Brodish, Winston-Salem, for defendant-appellant.

GREENE, Judge.

Defendant appeals from orders entered 18 June 1992, denying defendant's motions for modification of a custody order entered 31 July 1990 and to set aside the aforementioned custody order pursuant to N.C.G.S. § 1A-1, Rule 60(b).

Plaintiff and defendant were married on 29 June 1985, and on 8 April 1986, the parties' only child was born. On 28 September 1989, plaintiff instituted an action in Forsyth County District Court for relief from domestic violence and custody of the parties' daughter, who was three years old at the time. On 5 October 1989, the parties entered into a consent order pursuant to which they agreed to alternate custody of the minor child. Plaintiff subsequently sought a divorce from bed and board.

On 11 May 1990, plaintiff filed and served on defendant's attorney a notice of hearing to be held on 6 June 1990, at which plaintiff would seek "such relief as to the court may seem just and proper." Plaintiff and her attorney and defendant's attorney were present at the hearing, at which plaintiff presented, among other things, evidence of changed circumstances affecting the welfare of the parties' child. After the hearing, in an order entered 31 July 1990, the trial court granted plaintiff a divorce from bed and board and modified the consent order of 5 October 1989, pursuant to which the parties had agreed to alternate custody of the child, due to "changed circumstances presented by the evidence" at the hearing. The court granted plaintiff sole care, custody, and control of the minor child and awarded plaintiff attorney's fees in the amount of $500.00. The record reveals no objection by defendant's attorney to the introduction of evidence at the hearing regarding changed circumstances, and defendant did not appeal from this order.

Subsequently, child support and visitation orders were entered in the cause, pursuant to which defendant, who by this time had moved from North Carolina to Ohio, was awarded visitation with the child one weekend per month, two three-week periods each summer, and certain holidays. Plaintiff subsequently moved with the child from North Carolina to Texas. On 3 January 1992, defendant moved to modify the 31 July 1990 custody order, alleging substantial and material change in circumstances, specifically, plaintiff's relocation to Texas and her remarriage. On 3 April 1992, defendant moved pursuant to N.C.G.S. § 1A-1, Rule 60(b) to have the 31 July 1990 custody order set aside on the ground that defendant was not served with notice of the hearing. After a hearing on defendant's motions before the Honorable R. Kason Keiger, the court entered orders on 18 June 1992. With regard to defendant's motion to modify the previous custody order, the court found that certain changes had occurred since entry of the 31 July 1990 custody order, but concluded that defendant had failed to meet his burden of showing changed circumstances sufficient to justify a modification of the 31 July 1990 custody order, and denied defendant's motion. With regard to defendant's Rule 60(b) motion, the court found that defendant had full actual notice of the hearing on 6 June 1990, and a full opportunity to be heard, and concluded that, therefore, the 31 July 1990 custody order was not void on the ground of lack of notice to defendant. From these orders, defendant appeals.

____________

The issues presented are whether (I) the court abused its discretion in denying defendant's Rule 60(b) motion; and (II) the evidence supports the trial court's findings in its order denying defendant's motion for modification of custody, and whether the findings support its conclusions.

I

Defendant argues that the trial court abused its discretion in denying defendant's Rule 60(b) motion to set aside the 31 July 1990 custody order on the ground that defendant did not receive proper notice of the hearing on plaintiff's motion to modify custody, and therefore the order is void.

"Subject to the provisions of G.S. 50A-3, an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances...." N.C.G.S. § 50-13.7(a) (1987). Such motion, to be proper, must be made "on 10 days notice to the other parties and after compliance with G.S. 50A-4," N.C.G.S. § 50-13.5(d)(1) (1987 & Supp.1992), "shall state the grounds therefor, and shall set forth the relief or order sought," N.C.G.S. § 1A-1, Rule 7(b)(1) (1990), and shall be served upon either the party or his attorney of record. N.C.G.S. § 1A-1, Rule 5(a), (b) (1990). Where a party is given neither proper notice of a motion to modify custody nor an opportunity to be heard, an order modifying a previously entered custody order is void and may be set aside. See N.C.G.S. § 1A-1, Rule 60(b)(4) (1990). However, a party entitled to notice of such a motion may waive notice by attending the hearing of the motion and participating in it. Brandon v. Brandon, 10 N.C.App. 457, 461, 179 S.E.2d 177, 180 (1971).

The record in the instant case reveals that, although plaintiff's "Notice of Hearing" was not served on defendant himself, plaintiff properly served the notice on defendant's attorney, and did so in a timely manner in that it was served by mail on 11 May 1990, more than ten days prior to the scheduled hearing. However, despite the fact that a motion may properly be stated in a written notice of hearing on the motion, see N.C.G.S. § 1A-1, Rule 7(b)(1) (1990), the content of plaintiff's notice of hearing, seeking "such relief as to the court may seem just and proper," is insufficient to comply with the requirement that the motion state the grounds therefor and the relief or order sought. Defendant's attorney, however, was present at and participated in the hearing, and the record contains no indication that defendant's attorney either objected to the introduction of plaintiff's evidence of changed circumstances or sought a continuance of the matter. Accordingly, defendant waived proper notice of plaintiff's motion to modify custody, and therefore the trial court properly denied defendant's motion to set aside...