Sable v. Sable, No. COA05-664 (N.C. App. 6/6/2006)

• Decision Date: 06 June 2006
• Docket Number: No. COA05-664,COA05-664
• Court: North Carolina Court of Appeals
• Parties: JAY B. SABLE, Plaintiff, v. D. STELLA SABLE (now Knight), Defendant.

Page 1

Unpublished Opinion

JAY B. SABLE, Plaintiff, v. D. STELLA SABLE (now Knight), Defendant.

No. COA05-664

Court of Appeals of North Carolina.

Filed June 6, 2006

This case not for publication

Wake County No. 01 CVD 5464.

Appeal by Plaintiff from orders entered 15 June 2001, 16 March 2004, and 19 July 2004 by Judge Anne B. Salisbury in Wake County, District Court. Heard in the Court of Appeals 20 February 2006.

Jay B. Sable, pro se, for plaintiff-appellant.

Lynne M. Kay for defendant-appellee.

WYNN, Judge.

In this appeal, Jay B. Sable brings multiple issues arising from his dispute with his former wife, Stella (now remarried with the surname of "Knight"), regarding relocation of the couple's minor child and other issues. Upon thoroughly reviewing the record on appeal in light of the law of North Carolina, we reject Mr. Sable's issues as being without merit.

The parties married in 1988; had one child in 1996; and separated in 1997. Under their separation agreement, (1) the parties agreed to "joint custody" with Mrs. Knight's residence as the child's primary residence; (2) Mr. Sable would pay $1,000.00 per month in child support; and (3) Mr. Sable would make Mrs. Knight the beneficiary trustee of his $200,000 life insurance (withthe minor child as irrevocable beneficiary) until the minor child reached the age of twenty-five. A "Sable Family Budget" was also included in the separation agreement. The parties divorced on 4 December 1998.

During 1997 through 2001, Mr. Sable had physical custody of the minor child on alternate weekends, shared or alternate holidays, and for approximately three hours every Tuesday and Thursday. But upon Mrs. Knight informing Mr. Sable of her intent to remarry and relocate with the minor child from Raleigh, North Carolina to Hertford, North Carolina , Mr. Sable brought an action on 7 May 2001 seeking joint physical and legal custody of the minor child. Thereafter, he filed a "Motion for Preliminary Injunctive Relief," seeking to maintain the minor child's place of residence in Wake County until permanent custody could be determined. District Court Judge Anne B. Salisbury denied that motion and entered a "Memorandum of Judgment/Order" on 15 June 2001, allowing the child's relocation and specifying a visitation schedule with Mr. Sable.

Mr. Sable appeals from the 15 June 2001 relocation order; 30 October 2003 Temporary Custody and Support Order; 16 March 2004 order denying Mr. Sable's Motion to Compel; and 19 July 2004 Final Order on Custody and Support . We, however, do not address the 30 October 2003 order because the trial court entered a final order on 19 July 2004. See Hunter v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d 244, 246 (1997) (If an interim order does not affect a substantial right, the appealing party's rights will be adequately protected by an appeal timely taken from a final order.).

I.

Mr. Sable first contends that the trial court erred in using the Memorandum of Judgment/Order form, which is used for consent judgments, because he did not consent to the relocation of the minor child. We disagree.

"The power of the court to sign a consent judgment depends upon the unqualified consent of the parties thereto, and the judgment is void if such consent does not exist at the time the court sanctions or approves the agreement . . . and promulgates it as a judgment." Ledford v. Ledford, 229 N.C. 373, 376, 49 S.E.2d 794, 796 (1948); see also Buckingham v. Buckingham, 134 N.C. App. 82, 87, 516 S.E.2d 869, 873-74 (1999) (consent decree relating to child custody valid where parties signed written agreement and appeared in open court to acknowledge their consent). There is no requirement with consent judgments, including consent judgments relating to property, support and custody rights of married persons, that the parties, at the time of the entry of the judgment, actually appear in court and acknowledge to the court their continuing consent to the entry of the consent judgment. Wachovia Bank & Trust Co. v. Bounous, 53 N.C. App. 700, 706, 281 S.E.2d 712, 715 (1981) (where parties do not appear in court, trial court may sign and enter judgment if it contains the signatures of all the parties); N.C. Gen. Stat. § 52-10(c) (2005) (consent judgments do not have to be acknowledged). In this case, upon learning of Mrs. Knight's intent to relocate, Mr. Sable sought a preliminary injunction to prohibit moving the minor child pending the permanent custody hearing. Counsel for both parties met in chambers without either party present, and after the trial court denied the motion for injunctive relief, Mr. Sable's counsel requested that the trial court enter an order specifying visitation for Mr. Sable. The trial court used the Memorandum of Judgment/Order form allowing Mrs. Knight to relocate to Hertford with the child and providing a detailed visitation schedule for Mr. Sable. Counsel for both parties signed the memorandum.

It is apparent that the trial judge used the Memorandum of Judgment/Order form to specify visitation for Mr. Sable-not as a consent judgment regarding relocating the child as Mr. Sable argues. Mr. Sable's own testimony establishes that his attorney told him that the trial judge denied his motion for preliminary injunction and entered an order specifying his visitation rights:

Q: Okay. And you are aware, aren't you, that Judge Salisbury at that time issued a verbal ruling that your motion for injunction was denied, aren't you?

A. No. This is the very first time I'm hearing that.

Q: You are aware, aren't you, that —

A: (interposing). Well, no. . . .I can't give you a simple yes or no on that one, because my former attorney called me up and her exact words were "Jay" — quote, "Jay, I'm sorry, we didn't get it," unquote.

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Q: You are aware, aren't you, that it is your own attorney at that time in Judge Salisbury's chambers who wanted that memorandum to be entered to secure your visitation by court order, aren't you?

A: I believe I was aware of that.

The record reveals that the trial judge entered the memorandum after denying Mr. Sable's motion for a preliminary injunction and in an effort to comply with Mr. Sable's request for an order regarding visitation. While the better practice would have been for the parties' counsel to omit all references in the memorandum indicating that the trial court's judgment on visitation was a consent order, we are satisfied that under the circumstances of this case, the parties understood the order was directed towards the issue of visitation. Accordingly, Mr. Sable's assignment of error is rejected.

II.

Mr. Sable next contends the trial court erred in awarding primary custody to Mrs. Knight. We disagree.

Section 50-13.2 of the North Carolina General Statutes requires a trial court's order to include terms for visitation and contain findings sufficient to support the ruling. N.C. Gen. Stat. § 50-13.2 (2005). "[T]he trial court's findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain a finding to the contrary." Surles v. Surles, 113 N.C. App. 32, 42, 437 S.E.2d 661, 666 (1993) (citation omitted). Here, the trial court made the following pertinent findings of fact regarding custody: 15. The evidence presented by all witness [sic] show that both Plaintiff and Defendant are good parents. Plaintiff is a good father and has been actively involved in the child's upbringing since the separation. While he has never been the primary custodian, he continued to see the child and bond with her after the separation of the parties. On two occasions, early in the separation, Plaintiff left the child unattended in two potentially harmful situations. On one occasion, he left the minor child aged approximately 18 months, alone and asleep in his apartment while he walked the dog around the block. On another occasion, he left the child alone, aged approximately 2 years, on the apartment playground to go to his apartment to retrieve something. Plaintiff acknowledged the potential for harm and his lack of good judgment on these occasions; there is no evidence that anything like the above incidents has occurred since and the Plaintiff has been quite attentive since then.

16. Both parties love the minor child and by all accounts she is healthy, happy and loves both her parents. . . .

17. The minor child enjoys a good relationship with both her stepparents. Both engage in age-appropriate activities with her such as reading, being outside, and playing with the dog. Plaintiff's wife, Paula, especially spends quality time with the child engaging in whatever activities the child elects to do. Defendant's husband works long hours and tends to spend less time with her but engages in quiet time activities such as watching television together or walking the dog or hiking on acreage that he owns. He respects Plaintiff's status as the child's father. An example of this is that on approximately two occasions he has overheard the minor child be rude to her father on the telephone and hang up on him. He made the child call Plaintiff back and speak politely to her father.

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19. The custody evaluation was performed by the Forensic Psychiatry Service at the University of North Carolina at Chapel Hill School of Medicine. By stipulation of the parties, the written report of the custody evaluation was admitted into evidence. In addition, Dr. David Bartholomew was admitted as an expert witness in the field of child psychology and in the area of custody evaluations and testified. The evaluation team and UNC did psychological testing, analysis, interviews with the parties, the minor child and various references provided by the parties. . . .

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21. Various witnesses confirmed and the Court finds that the minor child . . . is an intelligent child who, as an only child, is often in the company of other adults with her parents. Although she gets long well with her peers at school, she needs...