In re the Custody of Cox

MORRIS, Judge.

At the end of the hearing with respect to the whereabouts of James Earl Cox, the following transpired:

“Court : As to Virginia Minton Moon, I firmly believe that she knew — I don’t know that she knows now, but I think she knew when she had James Earl Cox in her presence and carried him to Mr. Burton’s office and let him leave without saying anything about it, that she knew that it was against the order of the court. She was in court when the order was made, and I think she has interfered with the operation of the court orders, and I would like to sign a judgment to that effect holding that the court finds as a fact that she did know at the time she carried the child into Mr. Burton’s office that he was away from the Children’s Home without permission; that she had knowledge of that fact; that she had knowledge that she should inform the authorities of his whereabouts, and she intentionally and wilfully failed to do so.

Mr. Ivey: Would the court on its own motion be inclined to hold her in contempt?

Court : I think you better go through the regular procedure.

Mr. Burton: If your Honor please, we would like to object and except to the court’s finding of that fact.

Court : Let the record show that counsel for the defendant, Virginia Minton Cox Moon, excepts.

This is Respondent, Virginia Minton Cox Moon’s Exception NO. 2.

Mr. Burton : And we would like to give notice to the North Carolina Court of Appeals — notice of appeal to the North Carolina Court of Appeals.

Court : All right. You are given 45 days them 30.”

It is completely obvious that no order was entered from which respondent could appeal. We find no order of any kind in the record. The court simply stated that he would like to find as a fact that respondent knew the whereabouts of the child and further indicated that at proper contempt proceedings, he would do so. This exception is the subject of assignment of error No. 2 which we find to be without merit.

Respondent’s argument that the court had no jurisdiction over the matter we find to be specious. This assignment of error is overruled.

The record contains the motion of petitioner for his release, his affidavit, and the order releasing him from custody for contempt. There is nothing in the record indicating that evidence was taken or that any type of hearing was had. There is in the record an affidavit of Ottway Burton, counsel for respondent. No exception was taken to its inclusion. We, therefore, assume that it speaks the truth. According to the affidavit, no hearing was held on 10 May 1973 as stated in the order, although counsel for petitioner was in the courtroom. Respondent was ready to give evidence as to petitioner’s ability to pay. Petitioner’s counsel made no effort to have the motion heard. On 15 May 1973, respondent’s counsel found the order releasing petitioner in a box in the clerk’s office. Upon telephone inquiry to the judge, he learned the order had been signed in Chapel Hill at an alumni meeting on 11 May 1973, without a hearing. There had been no agreement that an order could be signed out of the district.

Petitioner sought to have himself purged of contempt. The burden was his to show facts sufficient to warrant his release. Respondent is entitled to rebut the evidence if she can. Although the order recites that petitioner’s relatives have raised $2,000 which they are willing to use for his benefit, there is no evidence to support that finding. We note that respondent’s counsel in his brief set forth evidence in behalf of his client to rebut petitioner’s motion. This, of course, we did not consider. The place for the giving of testimony is in open court and not in a brief filed in an appellate court. This is highly improper. Nevertheless, we are of the opinion that the trial court acted hastily in signing and entering the order purging petitioner of contempt and ordering his discharge from custody. The order is, therefore, vacated and the matter remanded for further proceedings consistent with this opinion.

Remanded.

Chief Judge Brock and Judge Parker concur.