{
  "id": 8525251,
  "name": "CHRISTOPHER LEON JONES, Plaintiff v. SABRINA GWENDOLYN ENGLISH JONES, Defendant",
  "name_abbreviation": "Jones v. Jones",
  "decision_date": "1993-03-02",
  "docket_number": "No. 915DC1307",
  "first_page": "293",
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  "casebody": {
    "judges": [
      "Judges WELLS and EAGLES concur."
    ],
    "parties": [
      "CHRISTOPHER LEON JONES, Plaintiff v. SABRINA GWENDOLYN ENGLISH JONES, Defendant"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nThis dispute arose in August- 1987 when plaintiff-father filed for custody of his only child, Heather Beth Jones (\u201cBeth\u201d), alleging that she had been sexually abused by one of her mother\u2019s boyfriends. Primary custody of Beth had been given to her mother, defendant in this action, pursuant to a separation agreement. The court entered a temporary emergency order on the date of plaintiffs filing placing custody with plaintiff. Subsequent court orders placed custody with maternal and paternal grandparents on an alternating basis, and later only with paternal grandparents. In June 1988 plaintiff and defendant entered into a consent order awarding primary custody to plaintiff and secondary custody to defendant. The consent order stipulated that when defendant had custody of Beth she could not stay overnight with a boyfriend.\nIn April 1990 plaintiff filed a motion alleging that defendant was not fit to have any custody at all, due to overnight visits with boyfriends while Beth was in the house, and seeking suspension of her visitation rights. Defendant filed a response and counter-motion. No hearing was held at this point, however, because defendant\u2019s attorney withdrew from the case due to a conflict of interest. In February 1991 defendant filed a motion for contempt and enforcement of visitation rights. She had previously orally agreed to suspend visitation as recommended by Dr. Nancy Peters, a child psychologist who had counselled Beth. The record indicates very serious problems were created by the mother\u2019s behavior. When it appeared that visitation would be suspended indefinitely, defendant filed the motion to enforce visitation. Plaintiff responded to defendant\u2019s motion, incorporating the allegations of his April 1990 motion and requesting the relief prayed for in that motion as to child support.\nJudge Tucker held a hearing on these motions, both plaintiff\u2019s April 1990 motion and defendant\u2019s February 1991 motion, and entered an order on 2 May 1991 modifying the consent order and changing primary custody from plaintiff to defendant due to a \u201csubstantial change in circumstances.\u201d Plaintiff appealed this order as well as the denial of his Rule 52, 59 and 62 post-trial motions. Plaintiff\u2019s petition for writ of supersedeas and motion for temporary stay were also denied.\nPlaintiff brings forth two arguments on appeal. First, he argues the trial court improperly changed custody ex mero motu, because neither party had raised the issue of custody and plaintiff did not receive notice that custody would be an issue at the 2 May 1991 hearing. Second, plaintiff contends the trial court\u2019s judgment was not supported by competent findings of fact and conclusions of law.\nN.C.G.S. \u00a7 5043.7(a) provides that \u201can order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.\u201d \u00a7 5043.7(a) (1987). Furthermore, a party is entitled to 10 days notice of a motion for custody in a pending action. \u00a7 5043.5(d)(1) (Cum. Supp. 1992).\nThe case of Clayton v. Clayton, 54 N.C. App. 612, 284 S.E.2d 125 (1981), is instructive on this issue. In that case defendant husband filed a restraining order to prevent plaintiff, his former wife, from taking their child out of the state. Plaintiff had primary custody of the child at the time. Questions were raised concerning service of the temporary restraining order upon, the plaintiff. On the day the order was left at her primary residence, plaintiff and the child left the state to move to Oklahoma. The trial court found that plaintiff had been properly, served and awarded temporary custody to defendant. Plaintiff appealed to this Court after denial of her Rule 60 motion for appropriate relief based on insufficient notice and service. 54 N.C. App. at 613-14, 284 S.E.2d at 126.\nThis Court reversed the trial court, holding that the order changing custody was in error. Defendant\u2019s petition only alleged potential violations of his visitation rights; he did not ask for a change in custody. Thus, the petition and restraining order were inadequate notice of a change in custody under N.C.G.S. \u00a7 50-13.5(d)(l). The Court noted that \u201c[b]efore divesting plaintiff of custody of her son, she was entitled to the notice set forth in the statute.\u201d 54 N.C. App. at 614, 284 S.E.2d at 127.\nWe will consider what issues were raised in the motions before Judge Tucker at the time of the hearing to determine whether primary custody was in issue and whether adequate notice was given. In his order, Judge Tucker recites that the hearing was held \u201cupon Motion filed by Plaintiff on April 20, 1990 wherein the Plaintiff sought among other things that the Defendant\u2019s rights for visitation be suspended, and Motion filed by Defendant on February 22,1991 wherein Defendant sought to enforce visitastion [sic] rights and such other relief as the Court deemed just and proper.\u201d\nIn his April 1990 motion plaintiff requested that he be awarded sole custody of Beth, that the court determine defendant was not fit, proper or suitable to have custody, that defendant\u2019s visitation rights be suspended, and that defendant pay child support to plaintiff. In her February 1991 motion, defendant asked the court to find plaintiff in contempt for failure to abide by the consent order, and asked the court to award reasonable attorney\u2019s fees and order reasonable visitation. Plaintiff\u2019s response incorporated by reference his motion filed in April 1990, and requested that defendant\u2019s motions be denied, and that he be granted the relief prayed for in the April 1990 motion as to child support.\nWe find that the issue of primary custody was not properly before the trial court. Plaintiff\u2019s request for sole custody in his April 1990 motion did not contemplate or give notice of a possible change of custody, because plaintiff already had primary custody. He merely wanted to completely suspend defendant\u2019s visitation privileges. Furthermore, in his response to defendant\u2019s February 1991 motion plaintiff prayed for the relief requested in the April 1990 motion only as to child support. Decisively, in her motion defendant did not ask for a change of custody, but only moved to enforce her visitation rights. Because there was no motion for custody before the trial court, there was no notice of a motion for custody as required by \u00a7 50-13.5(d)(l). Neither party knew the trial court would be deciding the issue of primary custody. The hearing revolved around defendant\u2019s visitation rights, as the trial judge indicated in the first paragraph of his judgment.\nBecause we are reversing the judgment of the trial court, we find it unnecessary to address plaintiffs other argument. We remand with instructions to reinstate plaintiff\u2019s custody and for further proceedings as may be appropriate.\nReversed and remanded.\nJudges WELLS and EAGLES concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "James K. Larrick for plaintiff-appellant.",
      "Lanier & Fountain, by Lori A. Gaines, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CHRISTOPHER LEON JONES, Plaintiff v. SABRINA GWENDOLYN ENGLISH JONES, Defendant\nNo. 915DC1307\n(Filed 2 March 1993)\nDivorce and Separation \u00a7 460 (NCI4th)\u2014 change of child custody\u2014 no notice to parties \u2014not properly before court\nThe issue of primary custody of a child was not properly before the trial court where plaintiff\u2019s request for sole custody in his April 1990 motion did not contemplate or give notice of a possible change in custody because plaintiff already had primary custody and merely wanted to completely suspend defendant\u2019s visitation privileges; in his response to defendant\u2019s February 1991 motion plaintiff prayed for the relief requested in the April 1990 motion only as to child support; and defendant did not ask for a change of custody in her motion, but only moved to enforce her visitation rights. Because there was no motion for custody before the trial court, there was no notice of a motion for custody as required by N.C.G.S. \u00a7 50-13.5(d)(l).\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1006* 1008.\nPower of court, on its own motion, to modify provisions of divorce decree as to custody of children, upon application for other relief. 16 ALR2d 664.\nAppeal by plaintiff from orders entered 2 May 1991 (nunc pro tunc for 19 April 1991) and 27 June 1991 (nunc pro tunc for 30 May 1991) by Judge Elton G. Tucker in Pender County District Court. Heard in the Court of Appeals 8 December 1992.\nJames K. Larrick for plaintiff-appellant.\nLanier & Fountain, by Lori A. Gaines, for defendant-appellee."
  },
  "file_name": "0293-01",
  "first_page_order": 321,
  "last_page_order": 325
}