In Re Woodell

117 S.E.2d 4 (1960) 253 N.C. 420

In the Matter of Donna Faye WOODELL.

No. 522.

Supreme Court of North Carolina.

November 23, 1960.

Moser & Moser, Asheboro, for petitioner, appellee.

Ottway Burton, Asheboro, for respondents, appellants.

PARKER, Justice.

Steve and Beulah Woodell assign as errors: (1) The recital in Judge Hooks' order dated 7 June 1960 that it appears to him that it would be to the best interest of Donna Faye Woodell that petitioner's motion for a modification of Judge Sharp's order be heard at the earliest possible date, and that Steve and Beulah Woodell have had sufficient notice of the motion, and that no further notice of such motion should be given; (2) the signing of the order.

G.S. § 1-581 reads: "When notice of a motion is necessary, it must be served ten days before the time appointed for the hearing; but the court or judge may, by an order made without notice, prescribe a shorter time."

The written motion for a modification of Judge Sharp's order is in the record, had been served on Steve and Beulah Woodell on 12 April 1960, and presumably was before Judge Hooks. It appeared from the face of this motion that changed circumstances since Judge Sharp's order called for a different arrangement of custody to protect and promote the welfare of Donna Faye Woodell. Contrary to appellants' argument that the recital of facts in Judge Hooks' order of 7 June 1960 has no evidence to support it, there was evidence in the written motion to support the recital in his order of June 1960 that it would be to the best interests of the child for the motion to be heard at the earliest possible date, and that appellants had had sufficient notice of the motion.

In the hearing before Judge Hooks on 9 June 1960 appellants were represented by counsel and offered evidence. This Court said in Collins v. North Carolina State Highway Comm., 237 N.C. 277, 74 S.E.2d 709, 714: "A party who is entitled to notice of a motion may waive notice. A party ordinarily does this by attending the hearing of the motion and participating in it." Appellants did not request Judge Hooks to continue the hearing on 9 June 1960 to a later date. There is nothing in the record to indicate that at the hearing on 9 June 1960 appellants had any evidence, or desired to present any evidence, other than what they presented, or that they lacked sufficient time to prepare for hearing the motion, which motion had been served on them on 12 April 1960, or that they were prejudiced in any way by having the hearing on 9 June 1960. Appellants' three assignments of error in respect to Judge Hooks' order of 7 June 1960, and as to having the hearing of petitioner's motion on 9 June 1960 are overruled.

Appellants in their brief have not discussed, or even referred to, their assignment of error to the order of Judge Hooks of 9 June 1960 awarding the custody of Donna Faye Woodell to her mother. Judge Hooks' findings of fact in the order stand unchallenged. His findings of fact show changed circumstances calling for a different arrangement to protect and promote the welfare of Donna Faye Woodell. His findings of fact, which are supported by evidence in the record, support his conclusions and order awarding the custody of this child to her mother. This Court said in James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759, 761; "Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it." No error of law appears on the face of the record.

The order of Judge Hooks signed on 7 June 1960, and his order signed on 9 June 1960 are

Affirmed.