{ "id": 8552895, "name": "MARIE PONDER CLARK v. PATRICIA PROFFITT CLARK, and CECIL CLARK, Guardian of GENE WAYNE CLARK, JOHN LLOYD CLARK, GAMBELL CLARK, GILA CLARK", "name_abbreviation": "Clark v. Clark", "decision_date": "1974-11-20", "docket_number": "No. 7424DC747", "first_page": "589", "last_page": "595", "citations": [ { "type": "official", "cite": "23 N.C. App. 589" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "182 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556319 ], "year": 1971, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0618-01" ] }, { "cite": "186 S.E. 2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "13 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555080 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/13/0643-01" ] }, { "cite": "130 S.E. 2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561042 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0461-01" ] } ], "analysis": { "cardinality": 629, "char_count": 14023, "ocr_confidence": 0.559, "pagerank": { "raw": 1.0664607418373105e-07, "percentile": 0.5585111332745655 }, "sha256": "54a2de5306ec3c4d32c5f37c51e23eb753d15eacb3373787f7310040fbc7b45e", "simhash": "1:8617a14eb0100045", "word_count": 2330 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Baley concur." ], "parties": [ "MARIE PONDER CLARK v. PATRICIA PROFFITT CLARK, and CECIL CLARK, Guardian of GENE WAYNE CLARK, JOHN LLOYD CLARK, GAMBELL CLARK, GILA CLARK" ], "opinions": [ { "text": "MORRIS, Judge.\nPlaintiff\u2019s first assignment of error relates to the denial of her motions to dismiss at the conclusion of the defendant\u2019s evidence and at the conclusion of all the evidence. Plaintiff concedes that, nothwithstanding the intentions of the parties to restrict subsequent modifications of the consent judgment the District Court had authority to change the custody provisions therein. Thomas v. Thomas, 259 N.C. 461, 130 S.E. 2d 871 (1963). Plaintiff maintains, however, that a judgment awarding custody cannot be modified or disturbed except upon evidence proving a \u201csubstantial change of circumstances.\u201d She contends that such a change has not been shown in this case and therefore her motions to dismiss should have been granted. After carefully reviewing the record, we find that plaintiff\u2019s motions were properly denied.\nWe recognize the well-established principle that a change in circumstances must be shown in order to modify an order relating to the custody of a minor child. G.S. 50-13.7; G.S. 50-16.9; McDowell v. McDowell, 13 N.C. App. 643, 186 S.E. 2d 621 (1972), and cases cited therein. In this case, however, we conclude that the defendant was not required to show a change in circumstances.\nWe note that no change in custody was made in this case. In fact the only effect of the order was to modify the visitation privileges of the defendant. In this regard we think Item 4 of the consent judgment of 11 August 1972 is especially pertinent. Item 4 provides as follows:\n\u201c4. This cause is retained for further orders and particularly for entry of special order further specifying the visiting privileges of the defendant, Patricia Proffitt Clark, which said special order only may be entered without showing of change of condition but any such special order shall be entered only after appropriate notice.\u201d (Emphasis supplied.)\nWhere the parties have specifically agreed to allow the trial judge to modify visitation privileges of a party without requiring a showing of change of condition, we are of the opinion, and so hold, that they are bound by their agreement. Thus, in this case, even assuming arguendo that defendant was unable to show a \u201csubstantial change in circumstances,\u201d plaintiff has no grounds for complaint.\nThe only other question raised on appeal by the plaintiff is whether the trial judge erred in refusing to hear and consider evidence concerning the mental and physical condition of the children, including medical evidence not available on 3 October 1973, but discovered and offered at the 4 March 1974 hearing and prior to the entry of the order of modification. We note that the record does not include the evidence that was purportedly offered and refused. Since appellant did not incorporate the excluded evidence into the record and thus disclose the alleged error, this assignment of error will not be considered. \u201cAn exception to the exclusion of evidence will not be considered when the record fails to disclose what the excluded evidence would have been.\u201d Barringer v. Weathington, 11 N.C. App. 618, 621, 182 S.E. 2d 239 (1971).\nFor the foregoing reasons, the order of the trial judge is affirmed.\nAffirmed.\nJudges Hedrick and Baley concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Gudger and Sawyer, by Lamar Gudger, and Ronald W. Howell for plaintiff appellant.", "Riddle and Shackelford, P.A., by John E. Shackelford, for defendant appellee." ], "corrections": "", "head_matter": "MARIE PONDER CLARK v. PATRICIA PROFFITT CLARK, and CECIL CLARK, Guardian of GENE WAYNE CLARK, JOHN LLOYD CLARK, GAMBELL CLARK, GILA CLARK\nNo. 7424DC747\n(Filed 20 November 1974)\n1. Divorce and Alimony \u00a7 24\u2014 child visitation privileges \u2014 consent to modification without showing change of condition\nWhere the parties to a consent custody order agreed to allow the trial court to modify defendant\u2019s visitation privileges without a showing of change of condition, they are bound by their agreement and the court properly modified defendant\u2019s visitation privileges without such a finding.\n2. Appeal and Error \u00a7 49 \u2014 failure of record to show excluded evidence\nAn exception to the exclusion of evidence will not be considered when the record fails to show what the excluded evidence would have been.\nAppeal by plaintiff from Braswell, Judge, 1 April 1974 Session of District Court held in Madison County. Heard in the Court of Appeals 16 October 1974.\nPlaintiff seeks review of an order entered 10 April 1974 modifying certain provisions of a consent custody judgment which had been entered into by the parties and their counsel in open court at a previous trial on 11 August 1972. This case initially arose upon the complaint of the plaintiff filed 3 May 1972 seeking award of custody of the plaintiff\u2019s four grandchildren. On that date, upon motion of the plaintiff, an order was entered granting immediate temporary custody of the children to the plaintiff and an order secured prohibiting removal of the children from North Carolina to the State of Alabama by their mother, Patricia Proffitt Clark, the defendant. This order was continued in effect by consent until the date of the trial and until entry of the 11 August 1972 consent judgment.\nThe consent judgment contains extensive findings of fact based upon evidence produced at the hearing and the admissions of the parties. These findings establish that the defendant abandoned her husband and children on 15 August 1967; that she thereafter granted to her husband the custody of the children by deed of separation; that following her husband\u2019s death in 1969 defendant permitted the children to remain in the sole care and keeping of the plaintiff, their grandmother; that during the years 1969, 1970, 1971 and 1972, the children resided continuously with the plaintiff who provided \u201cfor their care and keeping, their discipline, their education, their development and their supervision . . . and . . . assumed custodial responsibilities for said children and stood in loco parentis to them; ...\u201d until the date of the entry of the consent judgment. The findings further establish that during this period of four years the defendant seldom visited or telephoned her children and never corresponded with them or with the plaintiff concerning them. The judgment also finds that by this course of indifference and by \u201cher course of misconduct, incident to her separation from her husband and her state of living in Buncombe County and in Jefferson County, Alabama, in particulars known to the parties and their counsel, disclosed to the court but by agreement not set forth in this order, she, the said defendant, did abandon her said children.\u201d\nThe consent judgment concludes that the plaintiff has properly cared for the children and was \u201cthe fit and proper person to have and be awarded their care and custody\u201d; that the defendant mother was \u201cnot a fit and proper person to have the care and custody of said children\u201d; that the place of abode of the defendant mother was \u201cnot a fit and proper place for the upbringing of the said infant children\u201d; and that it was in the \u201cbest interests of the children that their care and custody be awarded to the plaintiff.\u201d Upon these findings and conclusions the consent judgment awarded the custody of the children to the plaintiff, made, provisions for the defendant to visit with the children with transportation of the children to be provided by defendant\u2019s mother, and made provision for the posting of bond to guarantee that the children not be removed by the defendant from North Carolina to Birmingham, Alabama, the place of the defendant\u2019s residence.\nThe record shows that bond was posted and that the defendant thereafter visited her children regularly as specified in the judgment. No further hearings concerning the custody of the children were held until 3 October 1973, when the case came to trial on the defendant\u2019s motion for a change of custody. This motion asserted that on 9 December 1972 the defendant married David Fowler, the man with whom she previously had been living in Birmingham, Alabama, and accused the plaintiff of various acts designed to obstruct and interfere with defendant\u2019s visits with her children.\nAt the hearing on her motion, defendant testified that at the time of the trial on 11 August 1972 and the entry of the consent judgment, she was not married to David Fowler but that within two weeks after he obtained his divorce from his first wife they were married and are now living together as lawfully wedded husband and wife; that at the time of the trial and entry of the consent judgment she had limited income and assets but that since her marriage to David Fowler, she had secured a job from which she derives substantial earnings and that her husband had received several pay raises which had improved their economic condition and their ability to provide for the children; and finally that at the time of the trial she and David Fowler were living together in a two bedroom townhouse but were now living in a three bedroom apartment. Defendant also testified to difficulty in reaching her children by telephone on several occasions and expressed dissatisfaction with the clothing provided by the plaintiff to the children when they visited her on one or more weekends. She further testified to wanting the children to attend her wedding to David Fowler and to facts from which she concluded that the plaintiff was responsible for the children\u2019s failure to attend the wedding. Friends of the defendant from Birmingham, Alabama, testified that her general reputation was excellent and that her home always was neat and clean.\nThe plaintiff and the defendant, Cecil Clark, Guardian of the testamentary estate of the children each testified at length about the care and upbringing the children received from the plaintiff. Other witnesses were tendered by the plaintiff to establish her good reputation and to describe the care, love and attention which she had provided for the children from 1967 until the date of the hearing. At the conclusion of the defendant\u2019s testimony and at the conclusion of all the evidence, plaintiff moved for a dismissal or for summary judgment in her favor. Both motions were denied. At this time a suggestion was made by the court that it might be helpful to have the services of a child psychologist. The court deferred rendering any judgment in the matter until the parties decided whether a psychological examination of the children would be desirable and court was \u201cadjourned sine die\u201d subject to having the matter \u201crecalled upon notice as necessary.\u201d\nOn 15 February 1974 the defendant filed a motion for entry of order, and upon plaintiff\u2019s answer thereto and upon plaintiff\u2019s motion to reopen the matter for the presentation of additional evidence suggesting a change of conditions, a second proceeding was held on 4 March 1974. At this hearing the court refused to consider the psychiatric report of one Dr. John Patton, who had interviewed the children at the request of the plaintiff when the parties were unable to agree upon a psychiatrist or psychologist. The court also refused to permit Dr. Patton to be called to give testimony and noted plaintiff\u2019s exception, treating the tender of Dr. Patton\u2019s report as equivalent to tender of his testimony. Instead the four children were interviewed in open court.\nUpon the basis of the testimony of the oldest child, Gene Wayne Clark, then nearly 14 years of age, the court found that he was \u201cinsistent in stating his intention to refuse to move from the home of his grandmother (plaintiff) and the community in which he has been reared.\u201d The court also noted that Gene Wayne Clark appeared to be \u201cof unusual maturity for his years\u201d and \u201cthat all of the children are very close in their love and affection for one another.\u201d\nBased on these and other findings the court concluded as a matter of law that there had been \u201ca substantial change in circumstances affecting the children\u201d since the order awarding custody of the children to the plaintiff on 11 August 1972; that both plaintiff and defendant and her husband were fit and proper persons to serve as parent (s) to the children but that \u201ca sudden permanent change of custody and place and community of residence for the children at this time could do violence and harm to their welfare and future development\u201d and \u201cthat permanent separation of the children from each other at this time would not be in their best interests.\u201d It, therefore, was ordered that plaintiff would continue to have custody of the four children and that defendant would continue to have the privilege of having her children visit with her at the residence of her parents one weekend every month as per the consent judgment of 11 August 1972. In addition, it was ordered that the consent judgment be modified to the extent that the defendant would have \u201cthe privilege of visiting with her children and of having her children visit with her one, two, three or four of them at the same time, in or out of the presence of the children\u2019s paternal relatives and in or out of the State of North Carolina, as shall be mutually agreed upon between the parties, on such occasions, in such manner and for such periods of time as shall not interfere unreasonably with school attendance, health, emotional or moral well-being and development of the said children or any of them.\u201d It further was stated \u201c[t]hat acts of omission or commission by either the plaintiff or the defendant with respect to any or all of the children which tend to interfere with the development or existence of a natural bond of affecton among the children themseslves, or between any of the children and their mother or their grandmother, shall constitute grounds for such modification of this order as shall, after hearing, appear in the best interests of the said children or any of them.\u201d Finally defendant was required to post a bond of $7,500 to insure return of the children to the plaintiff following their visits with defendant and her husband in the State of Alabama.\nAdditional facts necessary for decision are set forth in the opinion.\nGudger and Sawyer, by Lamar Gudger, and Ronald W. Howell for plaintiff appellant.\nRiddle and Shackelford, P.A., by John E. Shackelford, for defendant appellee." }, "file_name": "0589-01", "first_page_order": 617, "last_page_order": 623 }