*1 COURT OF O’Briant v. O’Briant (1984) Phifer, 312 S.E. (findings required). 2d App. N.C. DSS issue whether had it failed to resolve the importantly, More entirely, particular importance an omission of payment excused partially DSS’ it excused at least payment admission that light Therefore, I home. would hold that keep income clear, convincing evi- finding cogent, is also not dence, and reverse. accordingly
Conclusion view, be my In the decision of the trial court should reversed the child to his returning parents. and an order should be entered I words most judge’s compelling. find the trial themselves the trial parental rights, his decision to terminate announcing said: judge
I I in this probably do that with more reluctance confess any case one I’ve ever heard. than clearly Webb has taken prob- The evidence shows that Mona as much and has made as much ably prog- as —exerted effort . . . any who has come into this court. parent ress v. HUBERT RONNIE O’BRIANT SHEILA HUFF O’BRIANT No. 8314DC991 1984) (Filed September Alimony custody change § 25.9— child of circumstances —suffi- 1. Divorce and — ciency of evidence finding the trial court’s that there had Evidence was sufficient to sufficiently warrant modification change in circumstances substantial to been a moved with the order where it tended to show of child Bluefield, County Virginia; accompanied move was Durham child from by difficulty rights exercise of visitation increased by phone; attempts with his child repeated defendant’s to talk frustration of many were to his to the child which detrimental made statements welfare; upset psychological the child was on numerous occa- emotional mother; very expressed a following his child interactions with sions 50-13.7(a). strong preference live with his father. G.S. COURT OF APPEALS *2 Alimony § 2. custody and parent Divorce 25.9— child fitness of —emotional —suf- ficiency of evidence wording plaintiff The trial “very court’s from serious suffered psychiatric problems” concluding emotionally in that she was not then fit for child, custody though improper, of prejudicial plaintiff, was not to since fitness, regard the court’s conclusion with based on conduct and nine-day court’s plaintiff period, observation of over a was by supported by fact were in of which turn the evidence. Contempt § 3. rights of Court 6.2— ap- interference with visitation —failure pear filing sufficiency in contempt action another of evidence of — state — concluding The plaintiff trial court did not err in prior was in willful con- tempt plaintiff repeated- of court orders where the evidence showed that ly interfered plaintiff with defendant’s visitation of their however, hearings; failed for scheduled trial court erred in holding plaintiff contempt ground willfully in attempted on the that she avoid, ignore by lawful filing circumvent orders of the court an action in Virginia.
Judge part. dissenting Wells LaBarre, by plaintiff from Order 24 Judge. entered APPEAL Court, February 1983 in County. District Heard in the Durham 20 Appeals Court of August is a
This civil action instituted plaintiff mother for custo- dy support child of minor born of the marriage between plaintiff and defendant. On November 1980 a consent order whereby was plaintiff custody entered received of the child and defendant was pay ordered to child On 12 support. father filed a seeking motion the cause of
custody of the child and asking that be found be in orders previous entered the court. On Feb- order, ruary 1983 LaBarre entered an which consumes thir- record, defendant, ty pages granting custody of the child to limited giving plaintiff rights, and conditional visitation days sentencing plaintiff jail to 120 for separate contempt four violations, stayed fully such term being on condition that with all comply appealed. order. Plaintiff A. Robert Hassell plaintiff, appellant. for defendant, Arthur Vann appellee. for OF APPEALS HEDRICK, Judge. case, history procedural though lengthy,
necessary understanding appellant to an of the issues raised fully and so is below: outlined against filed defend-
On October Sheila O’Briant suit custody of and for seeking, among things, ant other O’Briant, marriage only child born of the between Ronald A entered on 25 and defendant. consent order was Ronald, whereby awarded November *3 old, years for the child. order con- then four defendant’s visitation concerning tained detailed have including stating might a clause that defendant rights, weekends. The order fur- visit him on alternate consent Ronald each had the make “a reason- provided party right ther to July plaintiff calls” the child. able number of to Bluefield, Durham, Carolina, Virginia, to where North moved from mother, Huff. On 15 lives her October Virginia she with alleged cause in which he filed a motion the his “curtailing telephone “refusing was calls” to son plaintiff right has to have on weekends when this defendant the visitation day . . .” ex were parte him. That same orders his son with rights defendant’s visitation directing to honor issued “why show the court and cause defend- to before the made cer- not be clarified and more should right ant’s visitation that have about change the of circumstances come tain due to 1980.” On 19 October filed motion November since “grabbed that defendant the alleged cause which she in the six hours before approximately child” on October minor scheduled, failed and that defendant had was his visitation by as court order. Sunday evening required Ronald return for his actions defendant be held in asked that motion, and, attorney’s fees. she be awarded De- in a later by were prompted that his actions claiming responded, fendant defy relating the court orders announced intention to La- December On rights. visitation defendant’s following pertinent which he made the an order in Barre entered and conclusions: out the fact evidence heard herein bares VII. That believe that vio- is cause to probable there COURT OF prior lated or intended to violate Orders this Court to refuse attempting or alter visitation as previously ordered refusing allow the defendant certain calls phone with as previously minor child ordered herein. VIII. That the actions of the plaintiff regarding the visitation defendant’s with the minor child in attempting to same, alter prevent or actual cause the plaintiff attorney having engage do the herein. work That therefore, plaintiff, attorney’s entitled to no fees in this case. IX. due change That the plaintiff residence of
and the burden placed on the defendant exercising residence in visitation the minor originally visitation Judgment set out in the Consent should be altered and that should share in the expense of the exercise of these privileges visitation the defendant as hereinafter ordered.
X. That it would be in the best interests minor child that the defendant have unlimited and unmonitored phone they calls with said child long so not interfere with the child’s welfare and are intended not to harass the child or the plaintiff.
Judge LaBarre’s order held was in contempt that defendant not and modified 25 1980 of the November consent or- der visitation relating to and calls between defendant and above-quoted findings Ronald in accordance with the and con- clusions. January 21 1982 Virginia,
On filed an in seek- plaintiff action ing of visitation. The record contains modification no indication of action, if any, the final Virginia plaintiffs taken court on February motion. On 12 1982 a in filed motion custody cause in sought which he of Ronald and asked that plain- tiff be contempt previous held in orders of the court. 180 alleged Defendant father in this motion that he had made at- only tempts to reach his son in- telephone, success in four Mr. stances. O’Briant further had stated that alleged she intended prevent to future contact between him the child. plaintiffs attempts Defendant to his to pointed interference with 364 COURT OF v. O’Briant
O’Briant alleged efforts to “demean and tar- plaintiffs call Ronald and to eyes a as evidence that substantial nish” him Ronald’s custody justified original modification of of circumstances February Sheila directing 12 an was issued order. On order 25 a on motion on hearing O’Briant to at defendant’s 17 February 1982. was served Ms. O’Briant order on on The. Marion, attorney, February Joseph 24 February. plaintiffs On counsel, he was “no alleging withdraw as filed a motion to 3 effectively Plaintiff.” On able to with the longer communicate LaBarre filed an order which stated that Judge March reason, failed, February hear- excuse or to attend the without March, which hear- which the matter until at ing and continued served Mr. This order was on ing Marion, appear. was ordered to plaintiff again counsel record. On March of “no hearing, again offering scheduled court failed to attend the was for her absence.” The matter continued reason or excuse more, and LaBarre issued an order direct- April Judge once on May hearing directing a on further ing attend bring the minor before Court parties “produce 3 May hearing, Plaintiff did not attend this hearing. child” for the day, hav- she held the next the matter hearing nor did attend the pnce 4 May a On the court conducted ing again. been continued temporary absence and awarded cus- hearing despite plaintiffs tody of hearing Ronald defendant. At the conclusion of May plaintiff. Mr. was to withdraw as counsel for Marion allowed custody May an awarding temporary On order entered defendant, rights at permitting plaintiff the child to visitation and finding plaintiff and in his company, defendant’s residence No order was previous be in orders of the court. finding contempt. at this court’s regard entered time motions, relevant before questions presently not Various us, On 2 1983 the parties. were filed both matter seeking on defendant’s motion the cause hearing came on for that Mrs. O’Briant be asking of Ronald permanent hearing days, continued ten for contempt. Following held fact following and the LaBarre made numerous *5 conclusions of law: pertinent
1. and of has been a substantial material [T]here entry since the of the Consent Order entered circumstances materially 1980 which affects child’s November OF APPEALS and physical, psychological, emotional so as to war- well-being custody rant modification the Court with reference to the and changes visitation. That these have occurred prior to custody May to the subsequent temporary Order entered 2. That the is a Defendant fit and to have proper person custody care and primary of the minor child and the best custody interest of the child dictates that be awarded to the Defendant.
3. That the Plaintiff is rights entitled to limited of visita- tion with her son. Based upon the Plaintiffs conduct which the Court finds to be detrimental to the emotional and psychological welfare of her upon and based further grounds including days reasonable nine of in observa- Court very tion to conclude she has psychiatric some serious problems, the Court further concludes that visitation subject should be to several conditions. willfully, wantonly,
4. The has Plaintiff and without lawful excuse violated the lawful Orders of and is this Court as contempt of Court follows: willfully
A. The Plaintiff violated this Court’s Order of 22, 1981, December visitations to be allowed to the regarding Defendant.
B. willfully The as appear Plaintiff failed to Ordered at 25, 1982 hearing. willfully failed C. Plaintiff Ordered at 12, 1982. set for March hearing willfully D. The attempted ignore to avoid by violating and circumvent the lawful Orders of this Court 50(a) 50 and Uniformed Chapter [sic] an filing Virginia. Code action the State above-quoted Based on extensive of fact conclu- law, an order effect: following sions of the court entered Ronald, subject defendant was awarded primary which were to be exercised accord- rights, visitation Under ance with detailed conditions set out the trial court. *6 APPEALS O’Briant v. O’Briant thirty days court in terms of the order sentenced to violation, County jail the Durham for each in a resulting stayed days, total term of with sentence on condition that all of the order. plaintiff comply with [1] In her first assignment of error contends that a cir erred in had been concluding change court “there a sufficiently a of cumstances substantial to warrant modification custody any find order where the evidence nor previous neither a could such conclusion.” ing support 5043.7(a) relating an order provides Gen. Stat. Sec. N.C. any custody may a “upon of minor child be modified at time a cause and of circumstances.” showing changed motion “ . . . as used in the means such ‘Changed circumstances’ statute Harrell, 11 re a as affects the welfare of the child.” In (1971). 351, 354, 188, 181 S.E. 2d Such cir- App. changed N.C. i.e., substantial, be shown cir- cumstances must be must “[i]t have so welfare the child will be changed cumstances that the of custody is provision unless the modified.” adversely affected 401, 406, 140, Rothman, 170 S.E. 2d App. Rothman v. N.C. (1969). determination of the trial court reviewing the matters, custody are conclusive on findings court’s fact “[t]he them, any is evidence even competent if there appeal contrary, evidence to the though might sustain have may evidence also been ad- incompetent even some though Pritchard, 196, 262 S.E. 2d App. v. 45 N.C. mitted.” Pritchard 836, (1980). Finally, judge, we note “the trial having witnesses, see and hear the and the opportunity parties involving in cases vested with broad discretion Id. children.” case, we point to the instant first principles these
Applying is “detrimental court found that conduct out that the This crucial psychological welfare of her child.” the emotional findings relating to specific is buttressed numerous finding specific to Ronald and to instances made statements child. in manner detrimental in which Merely behaved findings made the court to illustrative the numerous following: effect are the Plaintiffs move to Virginia 18. That subsequent difficulty began experiencing Defendant July COURT OF son, age communication with his minor then *7 half, . . . called five and a in Bluefield. That the Defendant was refused conversa- phone on a number of occasions and by as stated to “punishment.” tions the Plaintiff she would an number get phone the Defendant that unlisted Bluefield, number or even move from phone or his in order to avoid calls. Virginia 1982, January February, 28. and the Defendant During difficulty experience phone continued to substantial with . . . only his several suc- visitation with minor son [with] be- attempts cessful calls out of completed 29, 9, 1982. ... A November 1981 and tween phone being number of calls resulted in the taken off the answered and hung up. hook or 1982, Plaintiff, May,
42. a to the 4th of the Subsequent a course of conduct calculated to major, upon set psychology family, lives Defendant and his willfully disrupt child, seriously deviously and designed and the minor year well-being of her seven old son damage the emotional forth. hereinafter set s visitation of during
These occurred the Plaintiff events 4, 5, 6, May 9:15 P.M. May about the Plaintiff on at
That child was in bed and where the minor came into the bedroom and that missing Virginia he was things him about the told his friends for him and how much surprises she had gifts by him. Plaintiff was told dog his missed That father, try his living he wanted to with minor child that Defendant. 6, 1982, and her May the Plaintiff evening
That on the Defendant to visit with home of the returned to the mother given a that had been puppy who was playing Ronald child Plaintiff then told the friends. That him some mother) Huff —the Plaintiffs (Virginia his grandmother kitten, him a that when the child asked the had gotten she was bewildered completely about his kitten grandmother story” Defendant this “kitten indicating to the was untrue. left,
A later after the Plaintiff had she called short time him he wanted to do about his asking the minor child what dog since he had a here he inferring dog Virginia, Virginia. need one in didn’t 9, 1982, Day, the Plain- Sunday, May Mother’s
That child, tiff, year mother of this seven old returned her son a Defendant and to hand to proceeded home of the toy this was a thinking That the paper bag. small Plaintiff, bag and found therein brought opened *8 he for his bought grandmother, card a candle that had and Huff, for the bought and the that he had Virginia present the minor child and he could not greatly upset Plaintiff. This why were returned. gifts his understand Plaintiff, who had evening further on that the That water took him in the back pistol, minor child a bought his shirt and soaking the child with water yard sprayed days she just the fact that two before notwithstanding pants a cold. having concern about the child had shown such 10, 1982 visit the Plaintiff and May 43. between At Wilson, was an episode the home of Mrs. there her child at of occasions “if asked his mother on a number which the child him, why she ever tell him that she did.” she didn’t loved child, 13, 1982, “I May guess the Plaintiff told the 44. On teeth,” fami- Defendant and his your meaning the they pulled you.” “will beat ly, that the Defendant 1982, 3, was a conversation between there 48. On June Plaintiff said child wherein the and the minor the Plaintiff you.” me to see “doesn’t want the Defendant to the minor Plaintiff stated 56. On June son, child, she boy, biological year old little a seven COURT OF APPEALS was going to his room around stay and let other kids home, in his room since he was not coming and the child in- dicated that he wanted his room left as it was. And she he, stated that worry shouldn’t toys, about his if he was down there in Durham. The Plaintiff further stated that there boy was a little down the street who had his dog killed son, son, and she asked her year minor her seven old did he Pierre, mind if we gave your him dog, that he had seen his dog, and couldn’t this boy your little have and the dog, child “No, can’t”, you said and he cries. And she further stated did he mind if she moved his room around and moved his fish around, and the child again pleaded “No.” And the Plaintiff here, cried, stated sorry that she felt for the kids they cried, and she and that she had talked to another Judge and said that he shouldn’t have to live down there in she, Plaintiff, County Durham and that was not coming anymore, down to visit that she badly by was treated father, child’s and the child cried and she hung up telephone. 2, 1982, conversations, July On there were two
the first conversation was where she inquired to where morning,” child “this and the child said that he didn’t remember, and she asked him “whether or not he was losing mind,” his and she stated that she was going not his bring Durham, toys down to and that she was going to his give fair”, toys away, pleaded and the child that “that was not *9 he cried and she hung up his face.
Our examination of the evidentiary record reveals ample support for the findings judge of the trial regarding plaintiffs treatment of seriously Ronald. Nor can it be questioned that such treatment is detrimental to the child’s In welfare. addition to evidence tend- to show that Ronald has ing visibly become on numerous oc- upset mother, casions following interactions with his the record also Schoenfeld, by contains the statements Dr. following Renee con- cerning the results of a evaluation of the child: “It psychological already is obvious that Ronald is disturbed and in conflict great the and divorce The child is regarding separation proceedings. The being angry worried about his with each other. ‘bat- parents certainly only tle’ will child arrangements become worse for the as time on.” goes support evidence tending additional
The record contains in circum- change a substantial LaBarre’s conclusion that First, changed is undisputed has it stances occurred. entry of the con- eight months after her of residence some place of residence parent’s change is that a sent While it true order. circumstances, change a substantial of itself amount to does not may child well welfare of the such a move on the the effects of modification of the requiring change to a of circumstances amount Gordon, App. v. N.C. Gordon order. original (1980). case, s to Virginia move In the instant S.E. 2d exercise difficulty in the of visita- by increased accompanied of by frustration by repeated father rights tion The the telephone. Ronald on to talk with attempts defendant’s by supported are regard fact in this findings of court’s conclusion re- the crucial support lend further evidence and Also significant, circumstances. a substantial garding Ronald has ex- finding that is the court’s controlling, not although live with his father. “very strong preference” pressed sum, then, finds abundant conclusion challenged we that the hold fact, amply which are in turn court’s is without of error by assignment evidence. merit.
[2] By
her next
assignment
error,
challenges
by
court:
law made
the trial
following conclusion
of visita-
rights
to limited
entitled
That the
which
Plaintiffs conduct
upon
Based
with her son.
tion
emotional
finds to be detrimental
Court
upon
based further
welfare of
psychological
days
observa-
nine
of Court
including
grounds
reasonable
very
psychiatric
serious
she has some
to conclude
tion
visitation
concludes that
further
and the Court
problems,
subject to several conditions.
be
should
neither
is supported
conclusion
that this
Plaintiff contends
judge.
made
the trial
findings of fact
nor
evidence
court,
involv-
deciding
cases
that the trial
It is well-settled
children,
evaluate the
may
upon
be called
custody of
ing the
v.
See
parties.
Spence
stability and fitness of the
emotional
*10
(1973).
671,
Durham,
is
clear
equally
the knowledge [its] (2d Sec. 15 everyday 1 Brandis North Carolina Evidence life.” on 1982). rev. ed. case, LaBarre’s choice of instant we think the words, psychi- suffers from “serious concluding plaintiff in conclusion, in Such a considered atric unfortunate. problems,” sense, plaintiffs causes of underlying relates to the its technical and, strictly may well exceed the limits of the speaking, behavior ill-serves hypertechnicality We think such expertise. trial court’s child, however, and out that the court’s point needs of the the conclusion, context, a ruling plain- amounts to considered This emotionally of Ronald. is not fit for presently tiff conclusion, and the court’s observa- plaintiffs based on conduct nine-day period, supported over plaintiff tion Fur- evidence. fact which are in turn findings of thermore, may any concluding court have committed error the inwas no psychiatric problems” suffers from “serious the above- way portion The crucial prejudicial plaintiff. “Based been plaintiff: upon has overlooked quoted conclusion which Court finds to be detrimental conduct the Plaintiff’s . . . her child visita- psychological the emotional and welfare of added.) (Emphasis several conditions.” subject be tion should Thus, contention that agree were we to even psychiatric has “serious concluding court erred of er- assignment be no different. The the result would problems,” is without merit. ror numerous making erred “in next contends the court contrary to evi- are unsupported fact which
findings of asks this Court regard, plaintiff in this argument dence.” In her evi- an absence of transcript and the for “to review the Record dence, the issue of necessary to the resolution of only as deems it done, and we find no error. This we have circumstances.” changed [3] Finally contends the court erred its conclusion court orders. prior was in willful following grounds: regard in this ruling court based its Order of willfully violated this Court’s A. The Plaintiff to be allowed to visitations regarding December Defendant.
372 OF APPEALS COURT
O’Briant v. O’Briant B. willfully The Plaintiff failed as appear to Ordered at 25, February 1982 hearing. willfully C. The Plaintiff failed as appear to Ordered at March 1982. hearing set for D. willfully attempted to avoid and ignore and circumvent the lawful Orders of violating this Court 50(a) 50 and Chapter of the Uniformed [sic] Code an filing Virginia. action the State of “In are contempt proceedings judge’s findings of fact con- by any clusive on when appeal supported competent evidence and only are reviewable purpose passing for the on their sufficien- Clark, 554, 571, cy warrant v. 294 judgment.” to Clark N.C. (1978). 243 S.E. 139 2d Our examination of the record reveals evidence ample sup- the court’s porting finding plaintiff repeatedly interfered Ronald, with defendant’s visitation with in violation of 22 1981. court order dated December That this violation evidentiary willful cannot be in light doubted of the for finding the court’s number of calls resulted in the phone “[a] taken off the hook or answered and We being hung up.” also believe findings regarding plaintiffs the court’s failure appear to for two scheduled are hearings the evidence. The record had adequate shows that notice in both instances: February the order 1982 directing plaintiff appear at the February. was served hearing on on Plaintiffs at- torney, February, present in court on was informed on that March, case was date that the continued until and a copy of directing the order 12 March appear hearing at the attorney was mailed her and 1982. on March Plaintiffs may she be held contention that not for failure to contempt at- tend which were hearings place, continued thus did not take novel, entirely while unpersuasive. It belabors the obvious to may point plaintiffs out that failure to attend well have been a event, any factor in the court’s case. In decision to continue the the evidence supports plaintiffs the court’s conclusion that failure was willful and lawful to ly ordered without excuse. Final- that, contention, contrary we note had more than she adequate question notice that the whether should sub- be of the court orders would one prior be held in jects hearing beginning in relation to three decision
While we affirm the court’s above, result we reach a different grounds the four outlined *12 We are aware of ruling. the court’s fourth basis for regard to the none, decision, may person that a holding are cited to no and we in forum in the an action another contempt filing be held in for If, such conduct. prohibiting a or enjoining absence of court order contends, in to hold sought as defendant the trial court pretext as a for contempt “using [Virginia] proceeding for May 3 as ordered” on justifiable coming in not to court reasons failure to attend plaintiffs court should have identified order. May prior 3 violative of the court hearing the action Thus, in finding plaintiff LaBarre’s order portion Judge that her serve ordering in to Virginia for an action contempt filing all days her other thirty jail, compliance in conditioned on order, be vacated. of the must provisions February 24 is: of the order entered portion The result that defendant with limited of the child to the awarding affirmed; is privileges and conditional visitation February plain- 1983 finding of the order entered portion grounds on the three prior court orders contempt tiff in thirty days jail in for her serve ordering discussed above affirmed; of the order portion act contemptuous each contempt filing in for finding plaintiff entered is vacated. Virginia in an action in part.
Affirmed in vacated part, VAUGHN concurs. Judge
Chief in part. WELLS dissents
Judge dissenting part. Wells which affirms majority opinion part I from that dissent sentencing contempt finding plaintiff the trial court’s counts) (two obey court’s order days failing for jail was found Whether in the case. hearings at court, trial was not mentioned civil criminal or G.H.G., Realty Co. v. Inc. Winston have been on these proper I either would agree but do not 5 of the General Statutes. Chapter under the facts I all concur. respects, In other REALTY, INC., COMPANY, INC., WINSTON REALTY
WINSTON a Cor- d/b/a SNELLING, G.H.G., INC., poration AND SNELLING North Caro- v. t/a Corporation lina No. 8312SC790 1984) (Filed September agency practices Competition employment § trade 1— 1. Unfair —unfair —suffi- ciency of evidence practices, plaintiffs unfair action to recover for trade defendant violated G.S. the claim and verdict evidence *13 95-47.6(2) (9) qualified applicants” by advertising “pre-screened, were it, reliability through experience quickly whereas the work available verified; president investigated plaintiffs nor applicants had neither been applicant’s employee him that an in-state defendant’s told testified that checked; such and defendant admitted at trial that no had been references was made. check damages practices plaintiffs Competition § —cause 1— unfair trade 2. Unfair resulting plaintiffs damages allegedly from In an action to recover through employment agency, bookkeeper evidence employment a damages from defendant’s viola- resulted was sufficient to show practices evidence to show statute where the tended unfair trade tion of the representations hiring upon false plaintiffs president relied defendant’s bookkeeper. practices alleged contributory negli- § Competition 1— unfair trade 3. Unfair — gence not a defense practices ac- Contributory negligence a defense in an unfair trade is not 75-1.1. tion. G.S. ap- employment agency § Act Competition 1— —Unfair Trade Practices 4. Unfair plicable applied to defendant’s activities recom- Unfair Trade Practices Act employers, and there no merit mending employees and other only buyer-seller apply rela- should that the Act to defendant’s contention competitors. tionships competition business between dissenting. Judge Hedrick