Hamlin v. Hamlin

• Decision Date: 07 April 1981
• Docket Number: No. 55,55
• Parties: , 15 A.L.R.4th 853 Joanne Knott HAMLIN (Whitt) v. Joseph John HAMLIN, II
• Court: North Carolina Supreme Court

Page 381

276 S.E.2d 381

302 N.C. 478, 15 A.L.R.4th 853

Joanne Knott HAMLIN (Whitt) v. Joseph John HAMLIN, II

No. 55.

Supreme Court of North Carolina.

April 7, 1981.

Robert W. Wolf, Forest City, and James H. Burwell, Jr., Rutherfordton, for plaintiff-appellant.

Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for defendant-appellee.

BRITT, Justice.

Plaintiff contends the following issues are presented by this appeal:

1. The Court erred in the proceeding with the hearing of the defendant appellee's purported motion in the absence of the defendant and in the absence of adequate authorization from the defendant appellee for the defendant to be bound by the results of such hearings.

2. The Court erred in proceeding with the hearing on the purported motion and notice filed by the defendant for that said purported motion and notice fails to comply with the requirements of Rule 7 of the North Carolina Rules of Civil Procedure, and also Rule 6 of General Rules of Practice for the Superior Court, supplemental to the Rules of Civil Procedure.

We find no merit in either contention.

Addressing plaintiff's first contention, we note initially that G.S. § 1-11 provides that "(a) party may appear either in person or by attorney in actions or proceedings in which he is represented". In 5 Am.Jur.2d, Appearance, § 1, we find:

The term 'appearance' is used particularly to signify or designate the overt act by which one against whom suit has been commenced submits himself to the court's jurisdiction, although in a broader sense it embraces the act of either plaintiff or defendant in coming into court. Generally, however, it is used in the former sense, ....

The decisions of this court which interpret the quoted statute have dealt generally with the question of representation in court proceedings, whether by counsel or in propria persona. We have held that the right is alternative and that a party has no right to "appear" both by himself and by counsel. See New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945); McClamroch v. Colonial Ice Company, 217 N.C. 106, 6 S.E.2d 850 (1940); Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934).

Nevertheless, our research fails to disclose, and counsel has not cited, any statute, rule of court or decision which mandates the presence of a party to a civil action or proceeding at the trial of, or a hearing in connection with, the action or proceeding unless the party is specifically ordered to appear. Those who are familiar with the operation of our courts in North Carolina know that quite frequently a party to a civil action or proceeding does not appear at the trial or a hearing related to the action or proceeding. A proceeding involving the custody of a child is in the nature of a civil action. See G.S. § 50-13.5 (1976 & Cum.Supp.1979).

In the case at hand, plaintiff argues that she was deprived of the right to call defendant as an adverse witness and cross-examine him. If plaintiff desired to call defendant as a witness she should have had a subpoena issued for him or asked for an order of the court requiring him to be present. The record does not disclose that plaintiff advised the court that she wished to call defendant as a witness. In fact, it appears in the record that at the 11 July 1979 hearing "counsel for both parties stipulated that the evidence had not changed from the evidence offered at the hearing held on June 30, 1978, and that the Court should use its recollection of the evidence then offered, except that during the proceedings, it was stipulated that the defendant appellee no longer owned a residence in the State of Alaska."

Plaintiff also suggests that since defendant was not at the hearing, he might not be bound by the action of the court. We reject this suggestion for two reasons.

The first reason is that the record reveals that Mr. J. Nat Hamrick and his firm have represented defendant continuously since 1974 when they filed an answer duly verified by defendant. It is well-settled in North Carolina that counsel employed to conduct litigation has complete authority over the action, all that is incident to it, and all other matters which properly pertain to the action. Better Home Furniture Co. v. Baron, 243 N.C. 502, 91 S.E.2d 236 (1956); Coker v. Coker, 224 N.C. 450, 31 S.E.2d 364 (1944); Harrington v. Buchanan, 222 N.C. 698, 24 S.E.2d 534 (1943).

The second reason is that Mr. Hamrick had a written power of attorney from defendant providing as follows:

I hereby nominate J. NAT HAMRICK my attorney as attorney-in-fact for me to execute any and all undertakings, bonds, agreements, covenants to judgment and any other papers written with regard to the hearing on the custody and visitation of my son, Joseph John Hamlin IV, and to guarantee in my name and bind me to comply with the orders of the court, as fully and completely as if I were present in court.

The power of attorney specifically authorizes Mr. Hamrick, among other things, "to guarantee in my name and bind me to comply with the orders of the court, as fully and completely as if I were present in court". The authority granted by a power of attorney will be presumed to continue in the absence of anything showing a revocation of that authority. See Morris Plan Industrial Bank v. Howell, 200 N.C. 637, 158 S.E. 203 (1931).

Our decision today should not be interpreted as a precedent that hearings relating to the custody of children, and their visits with their respective parents, should ordinarily be heard when one of the parents is not present, even though the absent parent appears through a duly authorized attorney. Except in unusual cases, both parents should be present at these hearings, to the end that the trial judge might better evaluate the character and fitness of each parent.

In view of the unusual facts in the case sub judice, we think the trial judge was justified in hearing the motion in question without the presence of defendant father. John was 14 years of age when the order appealed from was entered; he will be 16 in September of this year and nothing in the record suggests that he has any physical or mental disability. The record indicates that defendant has been working in Alaska for several years and that his job schedule was the reason for his absence at the hearing. Defendant's present wife and his parents, John's grandparents, were present at the hearing. Furthermore, it appears that numerous hearings had been conducted with respect to John's custody and his visits since the first hearing in 1973, some of which were attended by defendant. Judge Gash's order dated 30 June 1978 (also relating to visitation privileges) recites that the hearing was conducted at that time without defendant being present by agreement of the parties.

The procedure which was employed by Judge Gash is acceptable when applied to the facts of the present case. However, it would be unacceptable if it were applied as a matter of general practice. In those instances where the court is dealing with matters which affect children of tender years or children with special problems, or when compelling circumstances do not otherwise dictate, the presiding judge should require the presence of both parents so that the court is in the position to gauge what disposition is in the best interest of the child.

With respect to the second question raised by plaintiff, she argues that defendant's "motion" filed on 29 June 1979 should have been dismissed by the trial court for failure to comply with Rule 7(b)(1) of our Rules of Civil Procedure and Rule 6 of the General Rules of Practice for the Superior and District Courts.

G.S. § 1A-1, Rule 7(b)(1) provides:

An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

Rule 6 of the General Rules of Practice provides in pertinent part that "(a) ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding. (See Rule 7 of Rules of Civil Procedure.)"

While defendant's motion is inartfully drawn, we agree with the Court of Appeals that it is clear from reading the motion that defendant was asking the court to modify its previous order with respect to John visiting his father during the summer. He gave as his reason a change in circumstances in that defendant had moved to and was working in Alaska. Defendant alleged that he had supported John continuously since the parties separated; that plaintiff not only did not want defendant to see his son but she would not allow John to talk with him on the telephone without her being present.

As to plaintiff's argument that defendant did not comply with Rule 6 of the General Rules of Practice in that he did not state the number of the Rule of Civil Procedure under which he was proceeding, we can perceive no prejudice plaintiff suffered by this omission. See City of Durham v. Lyckan Development Corp., 26 N.C.App. 210, 215 S.E.2d 814, cert. denied, 288 N.C. 239, 217 S.E.2d 678 (1975). The philosophy of the General Rules of Practice for the Superior and District Courts is stated in Rule 1 thusly: "They (the Rules) shall at all times be construed and enforced in such manner as to avoid technical delay and to permit just and prompt consideration and determination of all the business before them."

Since the written motion filed by defendant fully informed plaintiff of the relief he was seeking and his reasons therefor, we hold that the trial court did not err in denying plaintiff's motion to dismiss defendant's motion for failure to comply with the rules of court.

We can appreciate the substantial responsibility placed on district court...