Jones v. Jones

• Decision Date: 02 March 1993
• Docket Number: No. 915DC1307,915DC1307
• Citation: 109 N.C.App. 293,426 S.E.2d 468
• Parties: Christopher Leon JONES, Plaintiff, v. Sabrina Gwendolyn English JONES, Defendant.
• Court: North Carolina Court of Appeals

Page 468

426 S.E.2d 468

109 N.C.App. 293

Christopher Leon JONES, Plaintiff, v. Sabrina Gwendolyn English JONES, Defendant.

No. 915DC1307.

Court of Appeals of North Carolina.

March 2, 1993.

James K. Larrick, Wilmington, for plaintiff-appellant.

Lanier & Fountain by Lori A. Gaines, Jacksonville, for defendant-appellee.

LEWIS, Judge.

This dispute arose in August 1987 when plaintiff-father filed for custody of his only child, Heather Beth Jones ("Beth"), alleging that she had been sexually abused by one of her mother's boyfriends. Primary custody of Beth had been given to her mother, defendant in this action, pursuant to a separation agreement. The court entered a temporary emergency order on the date of plaintiff's filing placing custody with plaintiff. Subsequent court orders placed custody with maternal and paternal grandparents on an alternating basis, and later only with paternal grandparents. In June 1988 plaintiff and defendant entered into a consent order awarding primary custody to plaintiff and secondary custody to defendant. The consent order stipulated that when defendant had custody of Beth she could not stay overnight with a boyfriend.

In April 1990 plaintiff filed a motion alleging that defendant was not fit to have any custody at all, due to overnight visits with boyfriends while Beth was in the house, and seeking suspension of her visitation rights. Defendant filed a response and countermotion. No hearing was held at this point, however, because defendant's attorney withdrew from the case due to a conflict of interest. In February 1991 defendant filed a motion for contempt and enforcement of visitation rights. She had previously orally agreed to suspend visitation as recommended by Dr. Nancy Peters, a child psychologist who had counselled Beth. The record indicates very serious problems were created by the mother's behavior. When it appeared that visitation would be suspended indefinitely, defendant filed the motion to enforce visitation. Plaintiff responded to defendant's motion, incorporating the allegations of his April 1990 motion and requesting the relief prayed for in that motion as to child support.

Judge Tucker held a hearing on these motions, both plaintiff's April 1990 motion and defendant's February 1991 motion, and entered an order on 2 May 1991 modifying the consent order and changing primary custody from plaintiff to defendant due to a "substantial change in circumstances." Plaintiff appealed this order as well as the denial of his Rule 52, 59 and 62 post-trial motions. Plaintiff's petition for writ of supersedeas and motion for temporary stay were also denied.

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Plaintiff brings forth two arguments on appeal. First, he argues the trial court improperly changed custody ex mero motu, because neither party had raised the issue of custody and plaintiff did not receive notice that custody would be an issue at the 2 May 1991 hearing. Second, plaintiff contends the trial court's judgment was not supported by competent findings of fact and conclusions of law.

N.C.G.S. § 50-13.7(a) provides that "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 by either party or anyone interested." § 50-13.7(a) (1987). Furthermore, a party is entitled to 10 days notice of a motion for custody in a pending action. § 50-13.5(d)(1) (Cum.Supp.1992).

The case of Clayton v. Clayton, 54 N.C.App. 612, 284 S.E.2d 125 (1981), is instructive on this issue. In that case defendant husband filed a restraining order to prevent plaintiff, his former wife, from taking their child out of the state. Plaintiff had primary custody of the child at the time. Questions were raised concerning service of the temporary restraining order upon the plaintiff. On the day the order was left at her primary residence, plaintiff and the child left the state to move to Oklahoma. The trial court found that plaintiff had been properly served and awarded temporary custody to defendant. Plaintiff appealed to this Court after denial of her Rule 60 motion for appropriate relief based on insufficient notice and service. 54 N.C.App. at 613-14, 284 S.E.2d at 126.

This Court reversed the trial court, holding that the order changing custody was in error. Defendant's petition only alleged potential violations of his visitation rights; he did not ask for a change in custody. Thus, the petition and restraining order were inadequate notice of a change in custody under N.C.G.S. § 50-13.5(d)(1). The Court noted that "[b]efore divesting plaintiff of custody of her son, she was entitled to the notice set forth in the statute." 54 N.C.App. at 614, 284 S.E.2d at 127.

We will consider what...