No. 8615DC716 | N.C. Ct. App. | Mar 3, 1987
Defendant’s main argument is that the course the trial court followed in awarding and changing custody in this case was contrary to law. The argument, in substance, is that instead of determining custody initially on the basis of the facts that then existed and requiring the other party to show a substantial change of circumstances as G.S. 50-13.7 requires, that the court in effect left the determination in abeyance for several months by imposing conditions designed to improve the future conduct of the parties and that defendant’s conduct thereafter was not a change of circumstances under our law. While the argument is not entirely without basis and the course that the court followed was certainly irregular, in our opinion it was not invalid. In custody matters the child’s welfare, rather than the conduct of the parties, is the controlling factor; and both initially and later the court’s findings with respect to the child’s welfare fully justify the orders that were entered. Leaving aside the superfluous reformative provisions of the initial order, the unchallenged and accepted findings that both parents were fit to have custody and that the child’s best interests required joint custody were enough to support it. And, of course, the court’s later findings as to the child’s poor
Defendant’s other contention, that the trial court erred in denying her motions to continue the 25 November 1985 hearing and to grant her a new hearing because she then had no counsel, is also without merit. The stated basis for this contention is that the trial judge permitted her counsel, Robert C. Bryan, to withdraw just four days before the hearing, too late for her to obtain other counsel, and that she had to represent herself to her clear disadvantage. While the court did permit Mr. Bryan to withdraw from the case almost on the eve of the hearing, this did not cause defendant to be unrepresented in the hearing. For the record indicates that Mr. Bryan, as defendant knew, was in the case not to handle or even participate in any hearing required, but merely to advise Attorney Susan Lewis, whose motion to withdraw as defendant’s counsel was filed two months before the hearing involved and was granted two weeks later. The record also indicates that defendant knew when Ms. Lewis asked to be relieved as her lawyer that she had to obtain counsel to handle the case but failed to do so during the two months that intervened; and that though defendant was notified of the hearing three weeks ahead of time she did not move for a continuance until the plaintiff and his witnesses were in court ready to proceed with the hearing. Under the circumstances neither the court nor Mr. Bryan’s belated withdrawal can properly be blamed for defendant not being represented at the hearing, and the denial of her motion was not an abuse of discretion.