CLAYTON v. CLAYTON

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Docket Number

No. 817DC257

Attorney(S)

Biggs, Meadows, Etheridge Johnson by William D. Etheridge and Lee A. Spinks, and C. Ray Joyner, for the plaintiff-appellant. Hopkins Allen by Grover Prevatte Hopkins and Janice Watson Davidson for the defendant-appellee.

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Smart Summary

Factual and Procedural Background

In 1978, the defendant received an absolute divorce, while the plaintiff received custody of the parties’ minor child subject to the defendant’s visitation rights. After the plaintiff remarried, she and her new husband planned to move to Tulsa, Oklahoma. [1]

On 8 August 1979, the defendant sought a temporary restraining order preventing the plaintiff from taking the child outside North Carolina. The court issued the order, but the plaintiff left the State with the child that afternoon. [2][3][4]

At a 14 August 1979 hearing, the plaintiff was absent. The trial court awarded temporary custody to the defendant, directed that a bench warrant issue for the plaintiff under N.C. Gen. Stat. § 14-320.1, and ordered her to show cause why she should not be held in contempt for violating the restraining order. [5]

The plaintiff moved under Rule 60 of the North Carolina Rules of Civil Procedure for relief from the order based on insufficient notice and service. The trial court denied the motion and maintained its custody and visitation orders. The plaintiff appealed. [6][7]

Legal Issues Presented

Whether the plaintiff received adequate notice, including the statutory ten-day notice, before custody was changed. [8][9]
Whether the plaintiff violated N.C. Gen. Stat. § 14-320.1 by taking the child outside North Carolina. [10][11][12]
Whether the plaintiff could properly be ordered to show cause for contempt when there was no evidence that she knew of the temporary restraining order before leaving the State. [13][14][15]

Arguments of the Parties

Defendant-Appellee's Argument

The defendant asserted that the ten-day notice requirement of N.C. Gen. Stat. § 50-13.5(d)(1) did not apply because he had not moved for custody. [16]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Hege, 205 N.C. 625, 630, 172 S.E. 345, 347 (1934)	“Wilful,” when used in a criminal statute, means acting purposely and deliberately in violation of law.	The court used this principle in evaluating whether the plaintiff could be held in contempt without evidence that she knowingly violated the restraining order. [14][15]
State v. Falkner, 182 N.C. 793, 798, 108 S.E. 756, 758 (1921)	“Unlawfully” concerns whether conduct is permitted or required by law, while “willfully” means knowingly acting with stubborn purpose.	The court concluded that the record did not establish the willful disobedience required for contempt. [14][15]

Court's Reasoning and Analysis

The temporary restraining-order petition and order addressed visitation and restriction of the plaintiff’s and child’s movement, but did not notify the plaintiff that custody might be changed. N.C. Gen. Stat. § 50-13.5(d)(1) requires ten days’ notice for a custody motion in a pending action. The court held that this notice requirement applies even if the defendant did not formally move for custody because it protects the parties’ right to a fair hearing before custody is taken from one parent. [8][9][16]

Because the plaintiff received neither notice of a potential custody change nor ten days’ notice, the portion of the order awarding temporary custody to the defendant was improper and had to be reversed under Rule 60. [17]

The court then considered the bench-warrant provision. Section 14-320.1 applies when a person transports a child outside the State with intent to violate an existing custody order. When the plaintiff left North Carolina, she still had custody of the child and therefore did not remove him in violation of a custody order. The trial court consequently erred in refusing relief from that portion of the order. [10][11][12][18]

Finally, criminal contempt requires willful disobedience of a lawful court order. The record did not establish when the temporary restraining order was served through the plaintiff’s husband. Since the plaintiff left between 1:00 and 1:30 p.m., and there was no evidence that she knew of the order before leaving, the record did not show purposeful and knowing disobedience. [13][14][15]

Holding and Implications

REVERSED. The Court of Appeals held that the custody change, bench-warrant provision, and contempt-related provision could not stand on the record presented. The trial court’s refusal to grant the plaintiff Rule 60 relief was reversed. [17][18][15][19][20]

The decision directly affected the challenged custody, arrest, and contempt provisions. The opinion does not identify broader implications or announce a new precedent.

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DEBORAH P. CLAYTON (NOW RICHARDSON) v. JAMES R. CLAYTON

1. Divorce and Alimony 23.4, 25.7 — change of child custody — insufficient notice of hearing A petition for a temporary restraining order and the temporary order issued which referred only to allowing child visitation privileges to the defendant and to restraining the movement of plaintiff and the child did not constitute proper notice of a hearing on change of custody of the child and gave no ten-day notice as to change of custody as required by G.S. 50-13.5.

2. Abductions 1 — transportation of child outside State in violation of custody order The trial court erred in ordering that a bench warrant be issued for plaintiff's arrest for transporting her child outside the State with intent to violate a custody order in violation of G.S. 14-320.1 where plaintiff had custody of her child when she left the State with him and did not remove him from the State in violation of a custody order.

3. Contempt of Court 3.2 — violation of temporary restraining order — absence of notice of order The trial court erred in ordering plaintiff to show cause why she should not be held in contempt for violating a temporary restraining order enjoining her from removing her child from the State where there was no evidence that plaintiff had notice of the temporary restraining order prior to leaving the State. G.S. 5A-11 (a)(3).

Judge WEBB dissenting.

In 1978 defendant husband was granted an absolute divorce from plaintiff wife and wife was granted custody of the minor child of the marriage, subject to the visitation rights of the husband. In July 1979 plaintiff remarried, and plaintiff and her new husband decided to move to Tulsa, Oklahoma where the husband had been accepted into a Bible college.

On 8 August 1979, defendant petitioned the court for a temporary restraining order to prevent the wife from taking their child outside of the State. The defendant alleged that the wife was planning to move to Oklahoma to frustrate his visitation rights and that the resulting loss in visitation would result in irreparable harm to both the child and the father.

At 11:52 a.m. on 8 August 1979, Judge Tom Matthews issued a temporary restraining order enjoining the plaintiff from removing the child from the State pending a hearing on 14 August 1979. The sheriff was directed to serve the complaint and order on the plaintiff. The sheriff's certificate shows process was received on 8 August 1979 and was returned to the court on 10 August 1979. The time of service was not indicated. Substitute service was attained by leaving copies with plaintiff's husband at plaintiff's dwelling house.

Between 1:00 and 1:30 p.m. on 8 August 1979, plaintiff left Rocky Mount and drove to the Raleigh-Durham Airport with the child. They departed on a plane for Nashville, Tennessee at approximately 2:30 or 3:00 p.m. On or about 13 August 1979, plaintiff's husband picked up plaintiff and her son in Nashville, Tennessee driving on to Tulsa, Oklahoma. Plaintiff has not returned to North Carolina since that time.

On 14 August 1979 a hearing was held on defendant's petition for a temporary restraining order. The plaintiff was not present in person or by counsel. The court found that the plaintiff had been served by leaving a copy of the temporary restraining order with her husband at her usual place of abode. The court ordered that temporary custody of the child be awarded to the defendant. The court further concluded that a bench warrant should be issued for the arrest of the plaintiff pursuant to N.C. Gen. Stat. 14-320.1 unless the child was found in North Carolina before 12:15 a.m. on 16 August 1979. The court ordered plaintiff to appear on 11 September 1979 to show cause why she should not be held in contempt of court for violating the temporary restraining order.

On 4 October 1979, plaintiff filed a motion pursuant to Rule 60 of the North Carolina Rules of Civil Procedure seeking relief from the 16 August 1979 order of the court because of insufficient notice and service.

By order of the court filed 15 December 1980 the trial court concluded that the temporary restraining order had been properly served on plaintiff. The court ordered that plaintiff's Rule 60 motion be denied, and kept in force its previous orders in regard to custody and visitation of the child. Plaintiff appealed from the judgment.

MARTIN (Robert M.), Judge.

We initially consider plaintiff's assignment of error concerning the change in custody ordered by the court on 16 August 1979. The petition for a temporary restraining order and the temporary order filed on 8 August 1979 refer only to allowing visitation privileges to the defendant and to restraining the movement of the plaintiff and child. This petition and order were inadequate to constitute proper notice of a hearing on change of custody, and gave no 10-day notice as to change of custody as required by N.C. Gen. Stat. 50-13.5. Therefore the trial court erred in giving the defendant temporary custody in its 16 August 1979 order.

N.C. Gen. Stat. 50-13.5 outlines the procedure in actions for custody or support of minor children. 50-13.5 (d)(1) provides that "[m]otions for custody of a minor child in a pending action may be made on 10 days notice to the other parties and after compliance with G.S. 50A-4."

Defendant asserts that because he did not move to get custody, the provisions of 50-13.5 (d)(1) are not applicable. We disagree. N.C. Gen. Stat. 50-13.5 (d)(1) is designed to give the parties to a custody action adequate notice in order to insure a fair hearing. Before divesting plaintiff of custody of her son, she was entitled to the notice set forth in the statute.

The petition for the temporary restraining order and the temporary order issued did not provide notice of a potential change in custody and in no way provided ten days notice. As a result, that portion of the 16 August 1979 order granting custody to the defendant must be reversed pursuant to plaintiff's Rule 60 motion.

Plaintiff is seeking relief from the 16 August 1979 order of the court. That order, in addition to changing the custody of the child, also ordered that a bench warrant be issued for plaintiff's arrest for violating N.C. Gen. Stat. 14-320.1 and ordered plaintiff to appear before the court to show why she should not be held in contempt for violating the terms of the temporary restraining order.

N.C. Gen. Stat. 14-320.1 reads in part as follows:

When any court of competent jurisdiction in this State shall have awarded custody of a child under the age of sixteen years, it shall be a felony for any person with the intent to violate the court order to take or transport, or cause to be taken or transported, any such child from any point within this State to any point outside the limits of this State or to keep any such child outside the limits of this State.

Clearly on 8 August 1979 when plaintiff left the State with her son she had custody of the child and did not remove him from the State in violation of a custody order. Thus it was error for the judge not to relieve the plaintiff, pursuant to her Rule 60 motion, from this portion of the 16 August 1980 order.

Finally plaintiff was ordered to appear and show cause why she should not be held in contempt for violating the temporary restraining order of the court.

N.C. Gen. Stat. 5A-11 (a)(3) provides that "[w]illful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution" constitutes criminal contempt. In re Hege, 205 N.C. 625, 630, 172 S.E. 345, 347 (1934) states that "[t]he word `wilful,' when used in a statute creating an offense, implies the doing of the act purposely and deliberately in violation of law." (Citation omitted.) State v. Falkner, 182 N.C. 793, 798, 108 S.E. 756, 758 (1921), holds that "[t]he term unlawfully implies that an act is done, or not done, as the law allows, or requires; while the term willfully implies that the act is done knowingly and of stubborn purpose."

There is no evidence in the record that the plaintiff wilfully disobeyed any order lawfully issued by the court. The judge signed the temporary restraining order on 8 August 1979 at 11:52 a.m. There is no evidence regarding the time at which the order was served on plaintiff by substituted service on her husband. Plaintiff left her home between 1:00 and 1:30 p.m. on 8 August 1979 and proceeded to fly out of the State. Without any evidence that plaintiff had notice of the temporary restraining order prior to leaving the State, she cannot be held in contempt for purposely violating this order.

For the foregoing reasons the trial court's refusal to grant relief to plaintiff from the 16 August 1979 order must be reversed.

Reversed.

Judge WELLS concurs.

Judge WEBB dissents.