Clayton v. Clayton , 54 N.C. App. 612 ( 1981 )

MARTIN (Robert M.), Judge.

We initially consider plaintiffs 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)(l) 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)(l) are not applicable. We disagree. N.C. Gen. Stat. § 5043.5(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 plaintiffs 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-ll(a)(3) provides that “[wjillful 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.