Lee v. Lee

246 S.E.2d 49 (1978) 37 N.C. App. 371

Linda M. LEE (now Wilber) Plaintiff Petitioner,
v.
William F. LEE, Defendant Respondent.

No. 7726DC642.

Court of Appeals of North Carolina.

August 1, 1978.

James L. Roberts, Charlotte, for plaintiff-appellant.

R. Kent Brown, Charlotte, for defendant-appellee.

MITCHELL, Judge.

The plaintiff assigns as error the trial court's failure to allow her motion to dismiss as to willful contempt at the close of the defendant's evidence and again at the close of all of the evidence. She contends that the court did not find and the evidence did not support a finding of "willfulness" on her part in violating the 3 September 1975 order. She further contends that, even if her violation of the order was willful, it was negated by the condition of the defendant and his apartment as set forth in the trial court's findings. We do not agree. As the defendant's evidence was sufficient to withstand the plaintiff's motion to dismiss both at the close of the defendant's evidence and at the close of all of the evidence, denial of those motions was proper.

The trial court found in its order of 12 April 1977 that the plaintiff had not allowed visitation pursuant to the order of 3 September 1975. The trial court further found that the plaintiff "willfully and without sufficient legal excuse or justification" defied that order. The trial court's findings in this regard were supported by competent evidence, and in contempt proceedings such findings are conclusive on appeal when so supported. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

A review of the record on appeal indicates that the plaintiff's own testimony was that, since September of 1976, she had not complied with the order of 3 September 1975. She made no attempt to petition the court for a modification of the 1975 order so as to require the defendant to keep his premises clean and refrain from the use of alcohol or drugs when exercising visitation rights. Instead, she chose to continue to ignore the 1975 order with regard to the defendant's visitation rights. This violation of the 1975 order was not justified. See Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

The plaintiff further contends that, prior to a finding of willful contempt, the trial court must find that the contemnor had the "present ability to perform" pursuant to the order violated. The plaintiff argues that there was no evidence in the record showing she was in a position to comply with the visitation order, and that the omission of this finding was fatal. We do not agree.

In Moore v. Moore, 35 N.C.App. 748, 242 S.E.2d 642 (1978), we upheld a finding that the defendant was in willful contempt for failing to transfer an automobile title pursuant to a prior order for child support. No specific finding as to the defendant's present ability to transfer the title had been made. We found that none was required, although the evidence before the trial court was sufficient to enable it to reasonably conclude that the defendant had been possessed of the present ability to comply. We find Moore analogous to the present case, in that there was plenary evidence introduced here to justify a finding of the present ability to comply. Cf. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978) (Finding of willful refusal to obey a visitation order supported by plenary evidence and contemnor's contention that she had no knowledge of the existence or terms of the prior order was without merit.)

The plaintiff's final contention is that the trial court was without authority to issue its order of 7 April 1977 which modified the defendant's visitation rights established in prior orders, as this was done without notice to the plaintiff. This contention has merit. On 11 January 1977 the court ordered the plaintiff to appear and show cause why she should not be adjudged in willful contempt for failure to abide by the terms of the 3 September 1975 order. No notice that custody or visitation would be considered was given. Based upon the evidence adduced at its hearing conducted pursuant to the order of 11 January 1977 directing the plaintiff to show cause why she should not be held in contempt, the trial court entered its order of 7 April 1977 modifying prior orders concerning the defendant's visitation rights. The trial court was without authority to transform the show cause hearing, on its own motion and without notice to the plaintiff, into a hearing on the issue of modification of the defendant's visitation rights as set forth in prior orders. Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967). See also Conrad v. Conrad, 35 N.C.App. 114, 116, 239 S.E.2d 862, 863 (1978). The trial court's order of 7 April 1977 must be and is, therefore, vacated.

For reasons previously set forth herein, we find that portion of the trial court's judgment of 12 April 1977 adjudging the plaintiff to be in contempt was supported by competent evidence, and it is affirmed. As the record reveals and both counsel agree that the plaintiff has complied with that portion of the contempt judgment of 12 April 1977 permitting her to purge herself of contempt, issues relating to the validity of the conditions imposed therein have become moot and need not be considered or discussed.

Affirmed in part and vacated in part.

PARKER and HEDRICK, JJ., concur.