{
  "id": 8523755,
  "name": "MARY ELIZABETH BASS, Petitioner v. ROBERT J. BASS, JR., Respondent",
  "name_abbreviation": "Bass v. Bass",
  "decision_date": "1992-02-18",
  "docket_number": "No. 9126DC296",
  "first_page": "439",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T19:24:40.355340+00:00",
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  "casebody": {
    "judges": [
      "Judges COZORT and ORR concur."
    ],
    "parties": [
      "MARY ELIZABETH BASS, Petitioner v. ROBERT J. BASS, JR., Respondent"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nIn her first and second assignments of error, petitioner argues the trial court erred in dismissing her complaint based on her absence when her trial counsel was present and prepared to proceed. We agree.\nJudge Boner\u2019s order recited that he dismissed petitioner\u2019s complaint because the \u201cPetitioner was not present, and her testimony in court would be necessary because this matter is contested.\u201d In Terry v. Bob Dunn Ford, Inc., 77 N.C. App. 457, 335 S.E.2d 227 (1985), this court stated:\n\u201c[0]ur research fails to disclose . . . any statute, rule of court or decision which mandates the presence of a party to a civil action or proceeding at the trial of, or a hearing in connection with, the action or proceeding unless the party is specifically ordered to appear. Those who are familiar with the operation of our courts in North Carolina know that quite frequently a party to a civil action or proceeding does not appear at the trial or a hearing related to the action or proceeding.\"\nHamlin v. Hamlin, 302 N.C. 478, 482, 276 S.E.2d 381, 385 (1981). Plaintiff had not been ordered to appear for trial. The appearance of his attorney of record was sufficient to meet the requirement that he prosecute his action.\nTerry, 77 N.C. App. at 458, 335 S.E.2d at 228. Here, too, the petitioner had not been ordered to appear at trial. Therefore, it was error to dismiss her complaint based on her absence. Accordingly, this case must be reversed and remanded for determination of the amount of any permanent ongoing child support and the exact amount of arrears.\nWe also note that G.S. 52A-12.2 provides that in child support cases where \u201cthe obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the complaint or offers evidence constituting a defense, the court, upon request of either party, shall continue the hearing to permit evidence relative to the duty to be adduced by either party by deposition or by appearing in person before the court.\u201d (Emphasis added.)\nBecause of our disposition of petitioner\u2019s first two assignments of error, we do not reach her remaining assignments.\nReversed and remanded.\nJudges COZORT and ORR concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General T. Byron Smith, for the petitioner-appellant.",
      "Ronald Williams, P.A., by Ronald C. Williams, for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "MARY ELIZABETH BASS, Petitioner v. ROBERT J. BASS, JR., Respondent\nNo. 9126DC296\n(Filed 18 February 1992)\nDivorce and Separation \u00a7 464 (NCI4th)\u2014 child support hearing\u2014 absence of petitioner \u2014 dismissal\nThe trial court erred by dismissing a child support hearing based on the absence of petitioner where petitioner had not been ordered to appear. Moreover, N.C.G.S. \u00a7 52A-12.2 provides that in child support cases where the obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the complaint or offers evidence constituting a defense, the court, upon request of either party, shall continue the hearing to permit evidence relative to the duty to be adduced by either party by deposition or by appearing in person before the court.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 346, 1018.\nAPPEAL by petitioner from order entered 14 December 1990 by Judge Richard D. Boner in MECKLENBURG County District Court. Heard in the Court of Appeals 14 January 1992.\nPetitioner and respondent were married on 24 May 1970 in Goldsboro, North Carolina; during their marriage one child was born in North Carolina. On 1 April 1981 petitioner and respondent entered into a written \u201cStipulation\u201d on child support which was later incorporated into their 11 May 1981 Iowa divorce decree. Petitioner is now a resident of Virginia. Respondent is a resident of North Carolina.\nOn 25 January 1990 petitioner filed this URESA action to enforce the Iowa decree and to collect $12,400.00 in arrears. On 26 June 1990 respondent filed a motion to vacate the arrears, to vacate that portion of the support order requiring respondent to pay support after his child graduated from high school, and in the alternative to reduce the amount of monthly child support. That same day, the court continued the matter until 14 August 1990.\nThe trial court held a hearing on 14 August 1990 and entered an order on 11 October 1990. That order found: \u201c[t]hat the Respondent owe[d] an arrearage ... in excess of $13,000.00\u201d; \u201c[t]hat an Order for temporary support in the amount of $220.00 per month was entered in open Court on August 14, 1990\u201d; and that the respondent signed a \u201cStipulation\u201d which provided that he would pay monthly child support payments of $450.00 \u201cuntil [his daughter] reached the age of 22 years if she is enrolled in an accredited college or university.\u201d The court concluded that \u201cthe Respondent . . . contractually obligated himself to support [his daughter] until she ... reached the age of 22 years if she is enrolled in an accredited college or university,\u201d and that this obligation was enforceable in North Carolina. The court also denied respondent\u2019s 15 August 1990 verified motion requesting the court to declare the Iowa judgment void and that the North Carolina courts were not available to enforce the Iowa order. The court then continued the matter until 16 October 1990 \u201cto determine the amount of permanent ongoing child support and . . . the exact amount of arrears.\u201d\nOn 16 October 1990 the case was continued until 11 December 1990. The court also ordered the respondent to continue paying $220.00 per month as temporary support.\nOn 11 December 1990 Judge Boner conducted a hearing during which the petitioner\u2019s attorney, attempted to introduce evidence to verify respondent\u2019s daughter\u2019s attendance at an accredited college. The respondent objected claiming that the evidence concerned a contested matter and that the petitioner should be required to be present to testify. Petitioner argued that if the judge wanted to require the petitioner\u2019s attendance, he should grant her a continuance. Judge Boner concluded that \u201cPetitioner was not present, and her testimony in court would be necessary because this matter is contested.\u201d He then denied the motion for continuance; dismissed the matter without prejudice and relieved the respondent of his obligation to make further payments. Petitioner appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General T. Byron Smith, for the petitioner-appellant.\nRonald Williams, P.A., by Ronald C. Williams, for respondent-appellee."
  },
  "file_name": "0439-01",
  "first_page_order": 467,
  "last_page_order": 470
}