I.
[1] Defendant first argues the court erred in entering its 16
August 2001 judgment because defendant was not given sufficient
notice of the hearing supporting the judgment as required by G.S.
§ 50-13.5(d)(1) and G.S. § 50A-205(a). After careful review, we
disagree.
N.C. Gen. Stat. § 50-13.5(d)(1)(2003) provides:
Service of process in civil actions for the
custody of minor children shall be as in other
civil actions. . . . Motions 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-205.
G.S. § 50A-205 provides that notice and an opportunity to be heard
must be provided to all interested parties before a child custody
determination can be made. N.C. Gen. Stat. § 50A-205(a) (2003).
In this case, the defendant's attorney was timely served on 10
May 2001 with a copy of the motion seeking a modification of child
custody and notice of hearing for 6 June 2001.
See N.C. Gen. Stat.
§ 1A-1, Rule 5(b) (2003) (papers may be served upon either the
party or the party's attorney of record). On 6 June 2001, the
hearing was continued in open court to 23 July 2001. Neither thedefendant nor his attorney was present in court and neither
received written notice informing them of the new hearing date.
Defendant does not challenge service of the motion seeking a
modification in custody or notice of the 6 June 2001 hearing.
Defendant argues that he should have been served with written
notice that the 6 June 2001 hearing had been continued until 23
July 2001. Whether a party has adequate notice is a question of
law.
Barnett v. King, 134 N.C. App. 348, 350, 517 S.E.2d 397, 399
(1999).
“N.C. Gen. Stat. § 50-13.5(d)(1) is designed to give the
parties to a custody action adequate notice in order to insure a
fair hearing.”
Clayton v. Clayton, 54 N.C. App. 612, 614, 284
S.E.2d 125, 127 (1981). Adequate notice is defined as “notice
reasonably calculated, under all circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections.”
Randleman v. Hinshaw,
267 N.C. 136, 140, 147 S.E.2d 902, 905 (1966)(internal quotations
omitted).
It is generally held that parties have constructive notice of
all orders and motions made during a regularly scheduled court
date.
Wood v. Wood, 297 N.C. 1, 6, 252 S.E.2d 799, 802 (1979).
For example, in
Danielson v. Cummings, this Court held that no
written notice of dismissal was required to effectuate adequate
notice to the opposing party where the dismissal was announced in
open court. 43 N.C. App. 546, 547, 259 S.E.2d 332, 333 (1979),
judgment aff'd, 300 N.C. 175, 265 S.E.2d 161 (1980). However, we
have held that this rule can bend when necessary to “embrace commonsense and fundamental fairness.”
Hagins v. Redevelopment Comm'n of
Greensboro, 275 N.C. 90, 98, 165 S.E.2d 490, 495 (1969).
There is no need to bend the general rule in this case because
the defendant admits that he was on actual notice that a motion to
modify custody was set to be heard on 6 June 2001, but was
continued to some date in the future in order to accommodate his
need to find new counsel. Thus, defendant had a duty to either
attend the 6 June 2001 hearing or affirmatively inquire as to the
date on which the new hearing was scheduled.
See Collins v. North
Carolina State Highway & Public Works Comm'n, 237 N.C. 277, 282, 74
S.E.2d 709, 714 (1953) (parties have a duty to attend either
personally or through their attorneys all regularly scheduled court
dates). In addition, defendant had actual notice of the scheduled
court date prior to leaving for his planned vacation, but chose to
proceed with the trip rather than attend the hearing. He made no
attempt to employ counsel to request a continuance of the hearing,
even though he had been afforded a substantial period of time
within which to procure new counsel. Therefore, we hold defendant
was given adequate notice of hearing and an opportunity to be heard
in this case as required by G.S. § 50-13.5(d)(1) and G.S. § 50A-
205(a).
[2] Defendant next argues that he was not given sufficient
notice that he could be held in contempt of court pursuant to G.S.
§ 5A-23 for wilful failure to pay his child support. N.C. Gen.
Stat. 5A-23(a1) (2003) provides that a party is given adequate
notice of a contempt proceeding by an aggrieved party if the
aggrieved party serves a motion to show cause and a notice ofhearing at least five days in advance of the hearing. Defendant
was timely served on 10 May 2001 with both a motion to show cause
and a notice of hearing for 6 June 2001. We hold that such service
was adequate notice of the contempt proceeding in this case.
II.
[3] Defendant next asserts the trial court erroneously
adjudicated him to be in civil contempt. “The standard of review
for contempt proceedings is limited to determining whether there is
competent evidence to support the findings of fact and whether the
findings support the conclusions of law.”
Sharpe v. Nobles, 127
N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997). Because the trial
court erroneously placed the burden upon defendant, its findings do
not support its conclusion of contempt.
Effective 1 December 1999, the legislature amended G.S. § 5A-
23 by adding subsection (a1). N.C. Gen. Stat. § 5A-23(a1) (1999).
Subsection (a1) provides as follows:
Proceedings for civil contempt may be
initiated by motion of an aggrieved party
giving notice to the alleged contemnor to
appear before the court for a hearing on
whether the alleged contemnor should be held
in civil contempt. A copy of the motion and
notice must be served on the alleged contemnor
at least five days in advance of the hearing
unless good cause is shown. The motion must
include a sworn statement or affidavit by the
aggrieved party setting forth the reasons why
the alleged contemnor should be held in civil
contempt.
The burden of proof in a hearing
pursuant to this subsection shall be on the
aggrieved party.
N.C. Gen. Stat. § 5A-23(a1)(2003)(emphasis added). In addition to
permitting a contempt proceeding to be initiated by order or notice
of a judicial official issued upon a finding of probable cause, thestatute as amended also allows a contempt proceeding to be
initiated upon motion and notice by an alleged aggrieved party
without a judicial finding of probable cause. N.C. Gen. Stat. §
5A-23(a)(2003).
The contempt proceeding in this case was initiated by a motion
and notice of hearing filed by plaintiff, the alleged aggrieved
party, rather than an order or notice issued by a judicial
official. Thus, there is no basis to shift the burden of proof to
the alleged contemnor in this case.
See Plott v. Plott, 74 N.C.
App. 82, 85, 327 S.E.2d 273, 275 (1985) (if a judicial official
enters an order to show cause or a notice of contempt, the burden
shifts to the alleged contemnor to prove that he or she was not in
wilful contempt of the court's prior order). Pursuant to the
provisions of G.S. § 5A-23(a1), the burden is on the alleged
aggrieved party to show wilful contempt. However, in its order,
the trial court found that because defendant did not show cause as
to why his failure to pay his child support obligations was not
wilful, the defendant was
per se wilfully in contempt of the
mediated consent order. Because the trial court erroneously placed
the burden on defendant to prove a lack of wilful contempt, the
trial court's finding of fact does not support its conclusion of
law. Thus, we must vacate the defendant's adjudication of wilful
civil contempt.
III.
[4] Next, defendant argues the trial court erred when it found
a substantial change in circumstances affecting the welfare of the
minor children sufficient to justify a change of custody. Whendetermining whether the trial court erred in modifying an existing
child custody order, this Court must determine whether there was
substantial evidence to support the trial court's findings of fact,
and whether its conclusions of law are properly supported by such
facts.
Shipman v. Shipman, 357 N.C. 471, 474-75, 586 S.E.2d 250,
253-54 (2003). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.”
Id. at 474, 586 S.E.2d at 253 (internal quotation
omitted).
Evidence in the record supports the trial court's findings
that defendant had visited his children only for brief periods
rather than those visitations provided for in the mediated consent
judgment; that he had interfered with the children's counseling,
even to the extent of canceling a session when the children were
not scheduled to be with him; and that he became angry and enraged
when communicating with the plaintiff even when the children were
present. Though defendant argues that only a four month period had
elapsed from the initial custody order until plaintiff's motion,
and that plaintiff had not presented any testimony by a
professional suggesting that the children were in need of
counseling at the time he canceled their counseling session, the
trial court's findings support its conclusion that a substantial
change of circumstances affecting the welfare of the minor children
had occurred. Defendant's assignment of error to the contrary is
overruled.
IV.
[5] Finally, defendant argues the trial court erred when it
denied his motion for a new trial pursuant to G.S. § 1A-1, Rule 59;
or in the alternative, to set aside its 16 August 2001 judgment
pursuant to G.S. § 1A-1, Rule 60. We disagree.
A motion for a new trial pursuant to G.S. § 1A-1, Rule 59 must
be served not later than ten days after entry of the judgment.
N.C. Gen. Stat. § 1A-1, Rule 59(b) (2003). In this case, the
judgment was entered on 16 August 2001; the motion for a new trial
was served on 26 September 2001 and filed on 28 September 2001.
Since defendant's Rule 59 motion was untimely, the trial court
properly denied it.
Rule 60 permits a judgment to be set aside upon grounds of
mistake, inadvertence, excusable neglect, newly discovered
evidence, fraud, or any other reason justifying relief from the
operation of the judgment. N.C. Gen. Stat. § 1A-1, Rule 60(b)
(2003). Defendant contends that his lack of notice that the
hearing had been continued to 23 July 2001, his attorney's
withdrawal on the day of the hearing, and the fact that neither he
nor any representative was present at the 23 July 2001 hearing
constitute sufficient grounds to grant relief pursuant to this
rule.
Defendant does not specify the basis of his motion for relief
under Rule 60, however, his arguments can only be viable under the
justification of excusable neglect, Rule 60(b)(1), or grounds set
forth pursuant to Rule 60(b)(6).
A trial court's determination to
either grant or deny a Rule 60(b) motion will not be disturbed
absent a showing of abuse of discretion.
Danna v. Danna, 88 N.C.App. 680, 686, 364 S.E.2d 694, 698,
disc. review denied, 322 N.C.
479, 370 S.E.2d 221 (1988). After careful review, we discover no
abuse of the trial court's discretion in its denial of defendant's
Rule 60 motion to set aside the 16 August 2001 judgment.
The grounds for excusable neglect are established as a matter
of law.
Mitchell County Dep't of Soc. Servs. v. Carpenter, 127
N.C. App. 353, 356, 489 S.E.2d 437, 439 (1997),
aff'd, 347 N.C.
569, 494 S.E.2d 763 (1998). “[W]hat constitutes excusable neglect
depends upon what, under all the surrounding circumstances, may be
reasonably expected of a party in paying proper attention to his
case.”
Higgins v. Michael Powell Builders, 132 N.C. App. 720, 726,
515 S.E.2d 17, 21 (1999). The record shows that defendant had
notice of the motion to modify custody and find defendant in civil
contempt, was aware that the motion was set for hearing on 6 June
2001, and was aware the hearing had been continued on 6 June 2001
until some date in the future. On 20 July 2001, defendant was put
on actual notice that the hearing was scheduled for 23 July 2001.
Furthermore, defendant was aware for at least two months that his
attorney intended to withdraw and that he needed to obtain new
counsel. As previously discussed, defendant had an affirmative
duty to inquire as to the date to which his hearing had been
continued, and thus, may not now assert that his negligence in
failing to do so constituted excusable neglect.
See In re Hall, 89
N.C. App. 685, 688, 366 S.E.2d 882, 885,
disc. review denied, 322
N.C. 835, 371 S.E.2d 277 (1988) (“A party may not show excusable
neglect by merely establishing that she failed to obtain an
attorney and was ignorant of the judicial process.”);
see alsoJones v. Statesville Ice & Fuel Co., 259 N.C. 206, 209, 130 S.E.2d
324, 326 (1963)(“(p)arties who have been duly served with summons
are required to give their defense that attention which a man of
ordinary prudence usually gives his important business, and failure
to do so is not excusable”) (internal quotation omitted).
The grounds for setting aside judgment pursuant to Rule
60(b)(6) are equitable in nature.
Howell v. Howell, 321 N.C. 87,
91, 361 S.E.2d 585, 587 (1987). What constitutes cause to set
aside judgment pursuant to Rule 60(b)(6) is determined by whether
(1) extraordinary circumstances exist; and (2) whether the action
is necessary to accomplish justice.
Id., 361 S.E.2d at 588. No
grounds for excusable neglect or setting aside the judgment
pursuant to Rule 60(b)(6) were established in this case.
Defendant's telephone calls requesting a continuance three days
before the scheduled hearing were not sufficient to excuse his
failure to attend the hearing or mandate a setting aside of the
judgment pursuant to Rule 60(b)(6). Rule 40(b) of the North
Carolina Rules of Civil Procedure provides:
No continuance shall be granted except upon
application to the court. A continuance may be
granted only for good cause shown and upon
such terms and conditions as justice may
require.
N.C. Gen. Stat. § 1A-1, Rule 40(b) (2003). A telephone call,
absent extenuating circumstances, does not qualify as application
to the court. Defendant's planned vacation to Hawaii does not
constitute extenuating circumstances in this case since he had
adequate time beforehand to personally apply to the court for a
continuance based on his vacation plans. Furthermore, defendant'sfailure to pay proper attention to his case does not constitute
good cause to grant a continuance.
[6] Finally, the trial court's failure to grant a continuance
due to the withdrawal of defendant's attorney on the day of the
hearing does not mandate a setting aside of the judgment pursuant
to Rule 60(b)(6). “[A]n attorney's withdrawal on the eve of the
trial of a civil case is not
ipso facto grounds for a continuance.”
Shankle v. Shankle,
289 N.C. 473, 484, 223 S.E.2d 380, 387 (1976).
In such a situation, the trial court must examine the circumstances
of the case and determine “whether immediate trial or continuance
will best serve the ends of justice.”
Id. at 485, 223 S.E.2d at
387. In this case, defendant had over two months notice of his
attorney's intent to withdraw, and as such, the trial court did not
abuse its discretion when it decided not to grant a continuance in
the matter.
Lamb v. Groce, 95 N.C. App. 220, 222, 382 S.E.2d 234,
236 (1989) (where party had two weeks notice of attorney's intent
to withdraw, trial court did not abuse its discretion in denying a
continuance of the matter). In conclusion, we find no excusable
neglect nor any cause to set aside the judgment pursuant to Rule
60(b)(6), and thus, no abuse of discretion by the trial court in
denying defendant's Rule 60 motion.
Affirmed in part, vacated in part.
Chief Judge EAGLES and Judge LEVINSON concur.
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