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Osborne v. Osborne

March 17, 1998

BARRY LEWIS OSBORNE, PLAINTIFF,
v.
LYNNE LINETT OSBORNE, DEFENDANT.



Appeal by plaintiff from order entered 18 October 1996 by Judge Margaret L. Sharpe in Forsyth County District Court. Heard in the Court of Appeals 29 October 1997.

The opinion of the court was delivered by: Lewis, Judge.

Plaintiff and defendant were married in September 1989. Defendant gave birth to the only child of the marriage in April 1990. On 17 February 1995, plaintiff filed a complaint seeking divorce from bed and board, alimony, equitable distribution, child custody, child support, and attorney fees. Plaintiff also moved that defendant be ordered to submit to a psychological evaluation. Defendant answered and moved that both parties and their minor child be ordered to undergo psychological evaluations.

Plaintiff sent defendant a "Notice of Hearings" stating that on 13 April 1995, he would move for child custody and child support, exclusive possession of the marital homeplace, alimony pendente lite, and attorney fees. Plaintiff's Notice to defendant continued, "YOU WILL HEREBY TAKE NOTICE that, unless the said hearings are commenced and concluded on the said dates and times, the same will be continued from time to time upon Order of a Presiding Judge without further notice until the same are heard and concluded."

An order filed 4 April 1995 awarded defendant temporary custody of the child and set forth plaintiff's visitation rights. The hearing scheduled for 13 April 1995 was continued to 19 June 1995. The 19 June hearing was rescheduled for 31 August 1995 at plaintiff's request. On 31 August, plaintiff again moved to continue the hearing. The district court reset the hearing for 5 December 1995 and ordered each party to undergo psychological evaluations. On 13 November 1995 plaintiff was held in contempt and ordered imprisoned for not meeting his interim child support obligations.

The hearing scheduled for 5 December 1995 did not take place because plaintiff had not completed his psychological evaluations as ordered. The hearing was continued to 8 February 1996, but on that day the parties' child had chicken pox and the hearing never occurred. According to plaintiff's affidavit, it was agreed that defendant's attorney would secure a new hearing date and notify plaintiff's attorney.

On 28 February 1996, the district court signed an "Order of Continuance," nunc pro tunc 8 February 1996, continuing the hearing to 11 April 1996 at 2:00 p.m. This order was not filed until 15 May 1996. Plaintiff's sworn statement is that his attorney first learned of the 11 April hearing on 10 April 1996, at 3:30 p.m., when counsel for defendant mentioned it in a telephone conversation.

At the 11 April 1996 hearing plaintiff's attorney moved for a continuance on the ground that he had not received proper notice. This motion was denied. The district court found that plaintiff had been notified of the hearing on 28 February 1996, when (1) the hearing date was posted with the secretary for the District Court Judges on the chamber's hearing calendar; and (2) defendant's attorney "placed a copy of order of continuance in the mail box (located in the Clerk's office)" of plaintiff's attorney. The "mail box" mentioned here refers to one of a series of open boxes located in the Forsyth County Clerk's Office, each of which is reserved for a different attorney. The boxes are used to receive information from the clerk's office and from other attorneys. They are not official depositories for the United States Postal Service.

Plaintiff's attorney was present during the entire hearing on 11 April 1996. Plaintiff arrived at 4:25 p.m. and was present for the last thirty minutes of the hearing.

On 23 August 1996, before the district court had made a final disposition of the matters raised at the 11 April 1996 hearing, plaintiff moved for a new trial on the ground that he received insufficient notice of the 11 April hearing. This motion was heard and denied on 5 September 1996. Sometime before 18 September 1996, the district court Judge made it known that she intended to award custody of the child to defendant. Another hearing was held on 18 September 1996 to determine the amount of child support. Plaintiff received full notice of and testified at this hearing. By order dated 18 October 1996, the district court awarded defendant custody of the child and ordered plaintiff to pay child support. Plaintiff appeals.

Plaintiff has abandoned assignments of error 3 and 4 by failing to argue them in his brief. N.C.R. App. P. 10 and 28.

We first address whether plaintiff was properly notified of the 28 February 1996 "Order of Continuance," which continued the hearing on custody and child support to 11 April 1996. Statute provides, "The procedure in actions for custody and support of minor children shall be as in civil actions, except as provided in this section and in G.S. 50-19." N.C. Gen. Stat. § 50-13.5(a) (1995). It is further provided,

Motions for support of a minor child in a pending action may be made on 10 days notice to the other parties and compliance with G.S. 50-13.5(e). 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-4.

N.C. Gen. Stat. ยง 50-13.5(d)(1). In this case, defendant requested both child custody and child support at the 11 April hearing and presented argument in support of her request. Therefore, she was required to ...


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