{ "id": 8522323, "name": "SHEILA HUFF O'BRIANT v. HUBERT RONNIE O'BRIANT", "name_abbreviation": "O'Briant v. O'Briant", "decision_date": "1984-09-18", "docket_number": "No. 8314DC991", "first_page": "360", "last_page": "374", "citations": [ { "type": "official", "cite": "70 N.C. App. 360" } ], "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": "243 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "year": 1978, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "198 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560184 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0671-01" ] }, { "cite": "265 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551543 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0495-01" ] }, { "cite": "262 S.E. 2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548003 ], "year": 1980, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0189-01" ] }, { "cite": "170 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548309 ], "year": 1969, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0401-01" ] }, { "cite": "181 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554849 ], "year": 1971, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0351-01" ] } ], "analysis": { "cardinality": 1021, "char_count": 29854, "ocr_confidence": 0.83, "pagerank": { "raw": 2.3415996402266377e-07, "percentile": 0.7922363427365843 }, "sha256": "f86776922c2458f8ad1224f6511df547cd9b85e27c4f1be56188cb2c4e4279ba", "simhash": "1:e52988e84ca63cf5", "word_count": 4984 }, "last_updated": "2023-07-14T18:14:59.534868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN concurs.", "Judge WELLS dissents in part." ], "parties": [ "SHEILA HUFF O\u2019BRIANT v. HUBERT RONNIE O\u2019BRIANT" ], "opinions": [ { "text": "HEDRICK, Judge.\nThe procedural history of this case, though lengthy, is necessary to an understanding of the issues raised by appellant and so is fully outlined below:\nOn 31 October 1980 Sheila O\u2019Briant filed suit against defendant seeking, among other things, custody of and support for Ronald O\u2019Briant, the only child born of the marriage between plaintiff and defendant. A consent order was entered on 25 November 1980 whereby plaintiff was awarded custody of Ronald, then four years old, and support for the child. The order contained detailed provisions concerning defendant\u2019s visitation rights, including a clause stating that defendant might have Ronald visit him on alternate weekends. The consent order further provided that each party had the right to make \u201ca reasonable number of telephone calls\u201d to the child. In July 1981, plaintiff moved from Durham, North Carolina, to Bluefield, Virginia, where she lives with her mother, Virginia Huff. On 15 October 1981 defendant filed a motion in the cause in which he alleged that plaintiff was \u201ccurtailing telephone calls\u201d to his son and \u201crefusing visitation on weekends when this defendant has the right to have his son with him. . . .\u201d That same day ex parte orders were issued directing plaintiff to honor defendant\u2019s visitation rights and to appear before the court and show cause \u201cwhy the defendant\u2019s visitation right should not be clarified and made more certain due to the change of circumstances that have come about since November 25, 1980.\u201d On 19 October plaintiff filed a motion in the cause in which she alleged that defendant \u201cgrabbed the minor child\u201d on 16 October 1981 approximately six hours before his visitation was scheduled, and that defendant had failed to return Ronald on Sunday evening as required by court order. Plaintiff asked that defendant be held in contempt for his actions and, in a later motion, that she be awarded attorney\u2019s fees. Defendant responded, claiming that his actions were prompted by plaintiffs announced intention to defy the court orders relating to defendant\u2019s visitation rights. On 22 December 1981 Judge La-Barre entered an order in which he made the following pertinent findings and conclusions:\nVII. That the evidence heard herein bares out the fact that there is probable cause to believe that the plaintiff violated or intended to violate the prior Orders of this Court by attempting to refuse or alter visitation as previously ordered and refusing to allow the defendant certain phone calls with the minor child as previously ordered herein.\nVIII. That the actions of the plaintiff regarding the defendant\u2019s visitation with the minor child in attempting to alter or prevent same, was the actual cause of the plaintiff having to engage her attorney to do the work herein. That the plaintiff, therefore, is entitled to no attorney\u2019s fees in this case.\nIX. That due to the change of residence of the plaintiff and the burden placed on the defendant by this 1 change of residence in exercising visitation with the minor child, the visitation originally set out in the Consent Judgment should be altered and that the plaintiff should share in the expense of the exercise of these visitation privileges by the defendant as hereinafter ordered.\nX. That it would be in the best interests of the minor child that the defendant have unlimited and unmonitored phone calls with said child so long as they not interfere with the child\u2019s welfare and are not intended to harass the child or the plaintiff.\nJudge LaBarre\u2019s order held that defendant was not in contempt and modified the provisions of the 25 November 1980 consent order relating to visitation and telephone calls between defendant and Ronald in accordance with the above-quoted findings and conclusions.\nOn 21 January 1982 plaintiff filed an action in Virginia, seeking modification of visitation. The record contains no indication of the final action, if any, taken by the Virginia court on plaintiffs motion. On 12 February 1982 defendant filed a motion in the cause in which he sought custody of Ronald and asked that plaintiff be held in contempt of the previous orders of the court. Defendant father alleged in this motion that he had made 180 attempts to reach his son by telephone, with success in only four instances. Mr. O\u2019Briant further alleged that plaintiff had stated that she intended to prevent future contact between him and the child. Defendant pointed to plaintiffs interference with his attempts to call Ronald and to plaintiffs alleged efforts to \u201cdemean and tarnish\u201d him in Ronald\u2019s eyes as evidence that a substantial change of circumstances justified modification of the original custody order. On 12 February an order was issued directing Sheila O\u2019Briant to appear at a hearing on defendant\u2019s motion on 25 February 1982. The. order was served on Ms. O\u2019Briant on 17 February. On 24 February plaintiffs attorney, Joseph Marion, filed a motion to withdraw as counsel, alleging that he was \u201cno longer able to communicate effectively with the Plaintiff.\u201d On 3 March Judge LaBarre filed an order which stated that plaintiff failed, without excuse or reason, to attend the 25 February hearing and which continued the matter until 12 March, at which hearing plaintiff was ordered to appear. This order was served on Mr. Marion, plaintiffs counsel of record. On 12 March plaintiff again failed to attend the scheduled court hearing, again offering \u201cno reason or excuse for her absence.\u201d The matter was continued once more, and on 28 April Judge LaBarre issued an order directing plaintiff to attend a hearing on 3 May and further directing the parties to \u201cproduce and bring before this Court the minor child\u201d for the 3 May hearing. Plaintiff did not attend this hearing, nor did she attend the hearing held the next day, the matter having been continued pnce again. On 4 May the court conducted a hearing despite plaintiffs absence and awarded temporary custody of Ronald to defendant. At the conclusion of the hearing on 4 May Mr. Marion was allowed to withdraw as counsel for plaintiff. On 14 May an order was entered awarding temporary custody of the child to defendant, permitting plaintiff visitation rights at defendant\u2019s residence and in his company, and finding plaintiff to be in contempt of previous orders of the court. No order was entered at this time in regard to the court\u2019s finding of contempt. Various motions, not relevant to the questions presently before us, were filed by both parties. On 2 February 1983 the matter came on for hearing on defendant\u2019s motion in the cause seeking permanent custody of Ronald and asking that Mrs. O\u2019Briant be held in contempt. Following a hearing that continued for ten days, Judge LaBarre made numerous findings of fact and the following pertinent conclusions of law:\n1. [T]here has been a substantial and material change of circumstances since the entry of the Consent Order entered on November 25, 1980 which materially affects the child\u2019s physical, psychological, and emotional well-being so as to warrant modification by the Court with reference to the custody and visitation. That these changes have occurred prior to and subsequent to the temporary custody Order entered May 4, 1982.\n2. That the Defendant is a fit and proper person to have the primary care and custody of the minor child and the best interest of the child dictates that custody be awarded to the Defendant.\n3. That the Plaintiff is entitled to limited rights of visitation with her son. Based upon the Plaintiffs conduct which the Court finds to be detrimental to the emotional and psychological welfare of her child, and based further upon reasonable grounds including nine days of in Court observation to conclude that she has some very serious psychiatric problems, and the Court further concludes that visitation should be subject to several conditions.\n4. The Plaintiff has willfully, wantonly, and without lawful excuse violated the lawful Orders of this Court and is in contempt of Court as follows:\nA. The Plaintiff willfully violated this Court\u2019s Order of December 22, 1981, regarding visitations to be allowed to the Defendant.\nB. The Plaintiff willfully failed to appear as Ordered at the February 25, 1982 hearing.\nC. The Plaintiff willfully failed to appear as Ordered at the hearing set for March 12, 1982.\nD. The Plaintiff willfully attempted to avoid and ignore and circumvent the lawful Orders of this Court by violating the provisions of Chapter 50 and 50(a) of the Uniformed [sic] Code by filing an action in the State of Virginia.\nBased on extensive findings of fact and the above-quoted conclusions of law, the court entered an order to the following effect: defendant was awarded primary custody of Ronald, subject to plaintiffs visitation rights, which were to be exercised in accordance with detailed conditions set out by the trial court. Under the terms of the court order plaintiff was sentenced to thirty days in the Durham County jail for each contempt violation, resulting in a total term of 120 days, with sentence stayed on condition that plaintiff comply with all provisions of the order.\nIn her first assignment of error plaintiff contends that the court erred in concluding that \u201cthere had been a change in circumstances sufficiently substantial to warrant a modification of a previous custody order where neither the evidence nor any finding could support such a conclusion.\u201d\nN.C. Gen. Stat. Sec. 5043.7(a) provides that an order relating to custody of a minor child may be modified at any time \u201cupon motion in the cause and a showing of changed circumstances.\u201d \u201c \u2018Changed circumstances\u2019 as used in the statute . . . means such a change as affects the welfare of the child.\u201d In re Harrell, 11 N.C. App. 351, 354, 181 S.E. 2d 188, 189 (1971). Such changed circumstances must be substantial, i.e., \u201c[i]t must be shown that circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified.\u201d Rothman v. Rothman, 6 N.C. App. 401, 406, 170 S.E. 2d 140, 144 (1969). In reviewing the determination of the trial court in custody matters, \u201c[t]he court\u2019s findings of fact are conclusive on appeal if there is any competent evidence to support them, even though the evidence might sustain findings to the contrary, and even though some incompetent evidence may also have been admitted.\u201d Pritchard v. Pritchard, 45 N.C. App. 189, 196, 262 S.E. 2d 836, 840 (1980). Finally, we note that \u201cthe trial judge, having the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving the custody of children.\u201d Id.\nApplying these principles to the instant case, we first point out that the court found that plaintiffs conduct is \u201cdetrimental to the emotional and psychological welfare of her child.\u201d This crucial finding is buttressed by numerous findings relating to specific statements made by plaintiff to Ronald and to specific instances in which plaintiff behaved in a manner detrimental to the child. Merely illustrative of the numerous findings made by the court to this effect are the following:\n18. That subsequent to the Plaintiffs move to Virginia in July of 1981, the Defendant began experiencing difficulty with telephone communication with his minor son, then age five and a half, in Bluefield. . . . That the Defendant called on a number of occasions and was refused phone conversations by the Plaintiff as \u201cpunishment.\u201d The Plaintiff stated to the Defendant that she would get an unlisted phone number or change her phone number or even move from Bluefield, Virginia in order to avoid his calls.\n28. During January and February, 1982, the Defendant continued to experience substantial difficulty with phone visitation with his minor son . . . [with] only several successful telephone calls completed out of 180 attempts between November 29, 1981 and February 9, 1982. ... A number of calls resulted in the phone being taken off the hook or answered and hung up.\n42. Subsequent to the 4th of May, 1982, the Plaintiff, a psychology major, set upon a course of conduct calculated to willfully disrupt the lives of the Defendant and his family, and the minor child, and deviously designed to seriously damage the emotional well-being of her seven year old son as hereinafter set forth.\nThese events occurred during the Plaintiff s visitation of May 4, 5, 6, 7 and 9, 1982.\nThat on May 4, 1982 at about 9:15 P.M. the Plaintiff came into the bedroom where the minor child was in bed and told him about the things he was missing in Virginia and that she had gifts and surprises for him and how much his friends and his dog missed him. That the Plaintiff was told by the minor child that he wanted to try living with his father, the Defendant.\nThat on the evening of May 6, 1982, the Plaintiff and her mother returned to the home of the Defendant to visit with Ronald who was playing with a puppy that had been given to him by some friends. That the Plaintiff then told the child that his grandmother (Virginia Huff \u2014 the Plaintiffs mother) had gotten him a kitten, and that when the child asked the grandmother about his kitten she was completely bewildered by this indicating to the Defendant that this \u201ckitten story\u201d was untrue.\nA short time later after the Plaintiff had left, she called the minor child asking him what he wanted to do about his dog in Virginia, inferring that since he had a dog here he didn\u2019t need one in Virginia.\nThat on Sunday, May 9, 1982, Mother\u2019s Day, the Plaintiff, the mother of this seven year old child, returned to the home of the Defendant and proceeded to hand to her son a small paper bag. That the child, thinking that this was a toy brought by the Plaintiff, opened the bag and found therein a card and a candle that he had bought for his grandmother, Virginia Huff, and the present that he had bought for the Plaintiff. This greatly upset the minor child and he could not understand why his gifts were returned.\nThat further on that evening the Plaintiff, who had bought the minor child a water pistol, took him in the back yard and sprayed the child with water soaking his shirt and pants notwithstanding the fact that just two days before she had shown such concern about the child having a cold.\n43. At the May 10, 1982 visit between the Plaintiff and her child at the home of Mrs. Wilson, there was an episode in which the child asked his mother on a number of occasions \u201cif she loved him, why didn\u2019t she ever tell him that she did.\u201d\n44. On May 13, 1982, the Plaintiff told the child, \u201cI guess they pulled your teeth,\u201d meaning the Defendant and his family, and that the Defendant \u201cwill beat you.\u201d\n48. On June 3, 1982, there was a conversation between the Plaintiff and the minor child wherein the Plaintiff said that the Defendant \u201cdoesn\u2019t want me to see you.\u201d\n56. On June 25, 1982, the Plaintiff stated to the minor child, a seven year old little boy, her biological son, that she was going to change his room around and let other kids stay in his room since he was not coming home, and the child indicated that he wanted his room left as it was. And she stated that he, the child, shouldn\u2019t worry about his toys, if he was down there in Durham. The Plaintiff further stated that there was a little boy down the street who had his dog killed and she asked her minor son, her seven year old son, did he mind if we gave him your dog, that he had seen Pierre, his dog, and couldn\u2019t this little boy have your dog, and the child said \u201cNo, you can\u2019t\u201d, and he cries. And she further stated did he mind if she moved his room around and moved his fish around, and the child again pleaded \u201cNo.\u201d And the Plaintiff stated that she felt sorry for the kids here, that they cried, and she cried, and that she had talked to another Judge and that Judge said that he shouldn\u2019t have to live down there in Durham County and that she, the Plaintiff, was not coming down to visit anymore, that she was treated badly by the child\u2019s father, and the child cried and she hung up the telephone.\n57. On July 2, 1982, there were two conversations, and the first conversation was where she inquired as to where the child was \u201cthis morning,\u201d and the child said that he didn\u2019t remember, and she asked him \u201cwhether or not he was losing his mind,\u201d and she stated that she was not going to bring his toys down to Durham, and that she was going to give his toys away, and the child pleaded that \u201cthat was not fair\u201d, and he cried and she hung up in his face.\nOur examination of the record reveals ample evidentiary support for the findings of the trial judge regarding plaintiffs treatment of Ronald. Nor can it be seriously questioned that such treatment is detrimental to the child\u2019s welfare. In addition to evidence tending to show that Ronald has become visibly upset on numerous occasions following interactions with his mother, the record also contains the following statements by Dr. Renee Schoenfeld, concerning the results of a psychological evaluation of the child: \u201cIt is obvious that Ronald is already disturbed and in great conflict regarding the separation and divorce proceedings. The child is worried about his parents being angry with each other. The \u2018battle\u2019 arrangements will certainly only become worse for the child as time goes on.\u201d\nThe record contains additional evidence tending to support Judge LaBarre\u2019s conclusion that a substantial change in circumstances has occurred. First, it is undisputed that plaintiff changed her place of residence some eight months after entry of the consent order. While it is true that a parent\u2019s change of residence does not itself amount to a substantial change of circumstances, the effects of such a move on the welfare of the child may well amount to a change of circumstances requiring modification of the original custody order. Gordon v. Gordon, 46 N.C. App. 495, 265 S.E. 2d 425 (1980). In the instant case, plaintiff s move to Virginia was accompanied by increased difficulty in the exercise of visitation rights by defendant father and by repeated frustration of defendant\u2019s attempts to talk with Ronald on the telephone. The court\u2019s findings of fact in this regard are supported by the evidence and lend further support to the crucial conclusion regarding a substantial change of circumstances. Also significant, although not controlling, is the court\u2019s finding that Ronald has expressed a \u201cvery strong preference\u201d to live with his father. In sum, then, we hold that the challenged conclusion finds abundant support in the court\u2019s findings of fact, which are in turn amply supported by the evidence. The assignment of error is without merit.\nBy her next assignment of error, plaintiff challenges the following conclusion of law made by the trial court:\n3. That the Plaintiff is entitled to limited rights of visitation with her son. Based upon the Plaintiffs conduct which the Court finds to be detrimental to the emotional and psychological welfare of her child, and based further upon reasonable grounds including nine days of in Court observation to conclude that she has some very serious psychiatric problems, and the Court further concludes that visitation should be subject to several conditions.\nPlaintiff contends that this conclusion is supported neither by the evidence nor by the findings of fact made by the trial judge.\nIt is well-settled that the trial court, in deciding cases involving the custody of children, may be called upon to evaluate the emotional stability and fitness of the parties. See Spence v. Durham, 283 N.C. 671, 198 S.E. 2d 537 (1973). It is equally clear that, in making such an evaluation, the court, sitting as the trier of fact, may exercise its \u201cown reason and common sense, and use the knowledge acquired by [its] observation and experience in everyday life.\u201d 1 Brandis on North Carolina Evidence Sec. 15 (2d rev. ed. 1982).\nIn the instant case, we think Judge LaBarre\u2019s choice of words, in concluding that plaintiff suffers from \u201cserious psychiatric problems,\u201d was unfortunate. Such a conclusion, considered in its technical sense, relates to the underlying causes of plaintiffs behavior and, strictly speaking, may well exceed the limits of the trial court\u2019s expertise. We think such hypertechnicality ill-serves the needs of the child, however, and point out that the court\u2019s conclusion, considered in context, amounts to a ruling that plaintiff is not presently emotionally fit for custody of Ronald. This conclusion, based on plaintiffs conduct and the court\u2019s observation of plaintiff over a nine-day period, is supported by the findings of fact which are in turn supported by the evidence. Furthermore, any error the court may have committed in concluding the plaintiff suffers from \u201cserious psychiatric problems\u201d was in no way prejudicial to plaintiff. The crucial portion of the above-quoted conclusion has been overlooked by plaintiff: \u201cBased upon the Plaintiff\u2019s conduct which the Court finds to be detrimental to the emotional and psychological welfare of her child . . . visitation should be subject to several conditions.\u201d (Emphasis added.) Thus, even were we to agree with plaintiffs contention that the court erred in concluding that plaintiff has \u201cserious psychiatric problems,\u201d the result would be no different. The assignment of error is without merit.\nPlaintiff next contends the court erred \u201cin making numerous findings of fact which are unsupported and contrary to the evidence.\u201d In her argument in this regard, plaintiff asks this Court \u201cto review the Record and the transcript for an absence of evidence, only as it deems necessary to the resolution of the issue of changed circumstances.\u201d This we have done, and we find no error.\nFinally plaintiff contends the court erred in its conclusion that plaintiff was in willful contempt of prior court orders. The court based its ruling in this regard on the following grounds:\nA. The Plaintiff willfully violated this Court\u2019s Order of December 22, 1981, regarding visitations to be allowed to the Defendant.\nB. The Plaintiff willfully failed to appear as Ordered at the February 25, 1982 hearing.\nC. The Plaintiff willfully failed to appear as Ordered at the hearing set for March 12, 1982.\nD. The Plaintiff willfully attempted to avoid and ignore and circumvent the lawful Orders of this Court by violating the provisions of Chapter 50 and 50(a) of the Uniformed [sic] Code by filing an action in the State of Virginia.\n\u201cIn contempt proceedings the judge\u2019s findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment.\u201d Clark v. Clark, 294 N.C. 554, 571, 243 S.E. 2d 129, 139 (1978).\nOur examination of the record reveals ample evidence supporting the court\u2019s finding that plaintiff repeatedly interfered with defendant\u2019s telephone visitation with Ronald, in violation of the court order dated 22 December 1981. That this violation was willful cannot be doubted in light of the evidentiary support for the court\u2019s finding that \u201c[a] number of calls resulted in the phone being taken off the hook or answered and hung up.\u201d We also believe the court\u2019s findings regarding plaintiffs failure to appear for two scheduled hearings are supported by the evidence. The record shows that plaintiff had adequate notice in both instances: the order directing plaintiff to appear at the 25 February 1982 hearing was served on plaintiff on 17 February. Plaintiffs attorney, present in court on 25 February, was informed on that date that the case was continued until 12 March, and a copy of the order directing plaintiff to appear at the 12 March hearing was mailed to her and to her attorney on 3 March 1982. Plaintiffs contention that she may not be held in contempt for failure to attend hearings which were continued and thus did not take place, while novel, is entirely unpersuasive. It belabors the obvious to point out that plaintiffs failure to attend may well have been a factor in the court\u2019s decision to continue the case. In any event, the evidence supports the court\u2019s conclusion that plaintiffs failure to appear as ordered was willful and without lawful excuse. Finally we note that, contrary to plaintiffs contention, plaintiff had more than adequate notice that the question whether she should be held in contempt of prior court orders would be one of the subjects of the hearing beginning on 2 February 1983.\nWhile we affirm the court\u2019s decision in relation to three of the four grounds outlined above, we reach a different result in regard to the fourth basis for the court\u2019s ruling. We are aware of no decision, and we are cited to none, holding that a person may be held in contempt for filing an action in another forum in the absence of a court order enjoining or prohibiting such conduct. If, as defendant contends, the trial court sought to hold plaintiff in contempt for \u201cusing the [Virginia] proceeding as a pretext for justifiable reasons in not coming to court as ordered\u201d on 3 May 1982, the court should have identified plaintiffs failure to attend the 3 May hearing as the action violative of the prior court order. Thus, that portion of Judge LaBarre\u2019s order finding plaintiff in contempt for filing an action in Virginia and ordering her to serve thirty days in jail, conditioned on her compliance with all other provisions of the order, must be vacated.\nThe result is: that portion of the order entered 24 February 1983 awarding custody of the child to the defendant with limited and conditional visitation privileges to the plaintiff is affirmed; that portion of the order entered 24 February 1983 finding plaintiff in contempt of prior court orders on the three grounds discussed above and ordering her to serve thirty days in jail for each contemptuous act is affirmed; that portion of the order entered 24 February 1983 finding plaintiff in contempt for filing an action in Virginia is vacated.\nAffirmed in part, vacated in part.\nChief Judge VAUGHN concurs.\nJudge WELLS dissents in part.", "type": "majority", "author": "HEDRICK, Judge." }, { "text": "Judge Wells\ndissenting in part.\nI dissent from that part of the majority opinion which affirms the trial court\u2019s finding plaintiff in contempt and sentencing her to 30 days in jail (two counts) for failing to obey the court\u2019s order to appear at hearings in the case. Whether plaintiff was found in criminal or civil contempt was not mentioned by the trial court, but I do not agree that either would have been proper on these facts under the provisions of Chapter 5 of the General Statutes. In all other respects, I concur.", "type": "dissent", "author": "Judge Wells" } ], "attorneys": [ "Robert A. Hassell for plaintiff, appellant.", "Arthur Vann for defendant, appellee." ], "corrections": "", "head_matter": "SHEILA HUFF O\u2019BRIANT v. HUBERT RONNIE O\u2019BRIANT\nNo. 8314DC991\n(Filed 18 September 1984)\n1. Divorce and Alimony \u00a7 25.9\u2014 child custody \u2014 change of circumstances \u2014 sufficiency of evidence\nEvidence was sufficient to support the trial court\u2019s finding that there had been a change in circumstances sufficiently substantial to warrant modification of a child custody order where it tended to show that plaintiff moved with the child from Durham County to Bluefield, Virginia; the move was accompanied by increased difficulty in the exercise of visitation rights by defendant and by repeated frustration of defendant\u2019s attempts to talk with his child by phone; plaintiff made many statements to the child which were detrimental to his emotional and psychological welfare; the child was upset on numerous occasions following interactions with his mother; and the child expressed a very strong preference to live with his father. G.S. 50-13.7(a).\n2. Divorce and Alimony \u00a7 25.9\u2014 child custody \u2014 emotional fitness of parent \u2014 sufficiency of evidence\nThe trial court\u2019s wording that plaintiff suffered from \u201cvery serious psychiatric problems\u201d in concluding that she was not then emotionally fit for custody of her child, though improper, was not prejudicial to plaintiff, since the court\u2019s conclusion with regard to fitness, based on plaintiffs conduct and the court\u2019s observation of plaintiff over a nine-day period, was supported by the findings of fact which were in turn supported by the evidence.\n3. Contempt of Court \u00a7 6.2\u2014 interference with visitation rights \u2014 failure to appear \u2014 filing action in another state \u2014 sufficiency of evidence of contempt\nThe trial court did not err in concluding that plaintiff was in willful contempt of prior court orders where the evidence showed that plaintiff repeatedly interfered with defendant\u2019s telephone visitation of their child, and plaintiff failed to appear for scheduled hearings; however, the trial court erred in holding plaintiff in contempt on the ground that she willfully attempted to avoid, ignore and circumvent lawful orders of the court by filing an action in Virginia.\nJudge Wells dissenting in part.\nAPPEAL by plaintiff from LaBarre, Judge. Order entered 24 February 1983 in District Court, Durham County. Heard in the Court of Appeals 20 August 1984.\nThis is a civil action instituted by plaintiff mother for custody and support of the minor child born of the marriage between plaintiff and defendant. On 25 November 1980 a consent order was entered whereby plaintiff received custody of the child and defendant was ordered to pay child support. On 12 February 1982 defendant father filed a motion in the cause seeking a change of custody of the child and asking that plaintiff be found to be in contempt of previous orders entered by the court. On 24 February 1983 Judge LaBarre entered an order, which consumes thirty pages in the record, granting custody of the child to defendant, giving plaintiff limited and conditional visitation rights, and sentencing plaintiff to 120 days in jail for four separate contempt violations, such term being stayed on condition that plaintiff fully comply with all provisions of the order. Plaintiff appealed.\nRobert A. Hassell for plaintiff, appellant.\nArthur Vann for defendant, appellee." }, "file_name": "0360-01", "first_page_order": 392, "last_page_order": 406 }