Smith v. Rhodes , 16 N.C. App. 618 ( 1972 )

192 S.E.2d 607 (1972) 16 N.C. App. 618

George E. SMITH, Jr.
v.
Dorothy Patricia Smith RHODES.

No. 7228DC718.

Court of Appeals of North Carolina.

November 22, 1972.

Riddle & Shackelford by Robert E. Riddle, Asheville, for plaintiff appellant.

Robert S. Swain by Joel B. Stevenson, Asheville, for defendant appellee.

GRAHAM, Judge.

One of the findings of fact relied upon by the trial court to support a change in custody is "[t]hat the two minor children. . . now desire to live and reside with their mother, the defendant, and to visit with their father, the plaintiff, during vacation times." There is no evidence in the record to support this finding. Apparently it is based on information obtained during a private conversation which the trial judge had with one of the children, over plaintiff's objection, and out of the presence of plaintiff and his counsel. Plaintiff's first assignment of error encompasses exceptions to the court's private examination of the child and to the finding of fact apparently arising therefrom. The assignment of error must be sustained.

All parties in a court proceeding have a constitutional right to be present at all of its stages so that they may hear the evidence and have an opportunity to refute it. Consequently, while the trial judge may question a child in open court in a custody proceeding, he cannot do so privately except by the consent of the parties. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782. In accord: Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357; Horton v. Horton, 12 N.C.App. 526, 183 S.E.2d 794, cert. denied, 279 N.C. 727, 184 S.E.2d 884; Cook v. Cook, 5 N.C.App. 652, 169 S.E.2d 29.

The judgment is vacated and this cause is remanded for rehearing.

Error and remanded.

VAUGHN and HEDRICK, JJ., concur.