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Hebenstreit v. Hebenstreit

Court of Appeals of North Carolina

March 17, 2015

JORDAN HEBENSTREIT, Plaintiff,
v.
RACHEL HEBENSTREIT, Defendant

Heard in the Court of Appeals: February 3, 2015.

Ferrier Law, P.L.L.C., by Kimberly M. Ferrier, for plaintiff.

Lana S. Warlick, for defendant.

TYSON, Judge. Judges ELMORE and DAVIS concur.

OPINION

Page 650

Appeal by plaintiff from order entered 20 May 2014 by Judge Louis F. Foy, Jr. in Onslow County District Court, No. 13 CVD 2449.

TYSON, Judge.

Plaintiff appeals from the trial court's order, which ruled his motion for contempt had previously been adjudicated, was not properly before the court, and which dismissed his motion. We reverse and remand.

I. Background

The parties were married in 2010 and separated in July of 2012. One child was born of the marriage. On 14 August 2013, the district court granted plaintiff an absolute divorce from defendant. With consent of the parties, the court also awarded the parties joint legal custody of the minor child. Defendant-mother was awarded primary physical custody. Plaintiff-father was awarded secondary physical custody and liberal visitation privileges.

The custody order sets forth plaintiff's visitation schedule with the child. The court awarded plaintiff visitation every other weekend, and recited a schedule for visitation on holidays. On 9 September 2013, less than a month after entry of the custody order, plaintiff filed a motion for contempt. Plaintiff alleged defendant absconded with the child to Texas without plaintiff's permission, remained there for six weeks, and refused to return the child to North Carolina. Plaintiff also sought modification of the 14 August 2013 custody order to award primary custody of the child to him.

Plaintiff's attorney calendared the motion for contempt. The case appeared on the district court calendar on 30 September 2013, before the Honorable Anne B. Salisbury. When the matter was called for hearing, neither plaintiff nor plaintiff's attorney were present. Defendant's attorney, Lana S. Warlick, Esq., appeared on behalf of defendant. The record shows Ms. Warlick filed a notice of appearance on 1 July 2013 and represented defendant at the custody hearing.

Plaintiff's counsel represented to the court that she contacted Ms. Warlick's office when she filed the motion for contempt and was informed that Ms. Warlick no longer represented defendant. Ms. Warlick was retained for purposes of the contempt hearing subsequent to plaintiff's filing of the contempt motion. Plaintiff's attorney stated she was unaware that defendant was represented by counsel on the day of the hearing.

Defendant's attorney did not move for dismissal and requested the court to continue the matter. The court dismissed, sua sponte, plaintiff's motion for contempt for failure to prosecute. The court also ordered the parties to attend custody mediation with regard to plaintiff's motion to modify the custody order.

Plaintiff filed a second motion for contempt on 7 October 2013. The motion alleges defendant had ...


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