In Re the Custody of Cox

Court of Appeals of North Carolina

In Re the Custody of Cox

210 S.E.2d 223, 24 N.C. App. 99, 1974 N.C. App. LEXIS 1938

CourtCourt of Appeals of North Carolina

DecidedDecember 4, 1974

Docket7419DC473

StatusPublished

Cited by4 cases

This text of 210 S.E.2d 223 (In Re the Custody of Cox) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re the Custody of Cox, 210 S.E.2d 223, 24 N.C. App. 99, 1974 N.C. App. LEXIS 1938 (N.C. Ct. App. 1974).

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Opinion

*101 BROCK, Chief Judge.

Respondent contends that her due process rights were infringed when the trial judge refused to provide a court reporter. In McAlister v. McAlister, 14 N.C. App. 159, 187 S.E. 2d 449, cert. denied, 281 N.C. 315, 188 S.E. 2d 898, a case of first impression in North Carolina, we held that failure to provide a court reporter, where a court reporter was unavailable, was not fatal where there was no showing of prejudice. No prejudice has been shown. This assignment of error is without merit and is overruled.

Respondent assigns as error that the trial judge should have disqualified himself from hearing the cause by reason of interest or prejudice. Respondent filed a motion requesting Judge Sapp to disqualify himself and to transfer the case to another judge. The motion was denied. Respondent argues that on every discretionary ruling in this cause, the trial judge has ruled against her. We have carefully examined the record, the record of this case on its prior two appeals to this Court, and the allegations of respondent contained in her motion to remove the trial judge. There is no substantial evidence to support either respondent’s allegations or respondent’s arguments. This assignment of error is overruled.

Respondent argues that it was error for Superior Court Judge Seay to issue a writ of habeas corpus for petitioner. A simple reading of G.S. 17-6 disposes of respondent’s argument:

“Application for the writ shall be made in writing, signed by the applicant — (1) To any one of the justices or judges of the Appellate Division. (2) To any one of the superior court judges, either during a session or on vacation.”

We have carefully considered each of respondent’s three remaining assignments of error and feel that no useful purpose can be served by an ad seriatum discussion. In our opinion respondent had a fair hearing free from prejudicial error.

Affirmed.

Judges Morris and Martin concur.

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*101 BROCK, Chief Judge.

Respondent contends that her due process rights were infringed when the trial judge refused to provide a court reporter. In McAlister v. McAlister, 14 N.C. App. 159, 187 S.E. 2d 449, cert. denied, 281 N.C. 315, 188 S.E. 2d 898, a case of first impression in North Carolina, we held that failure to provide a court reporter, where a court reporter was unavailable, was not fatal where there was no showing of prejudice. No prejudice has been shown. This assignment of error is without merit and is overruled.

Respondent assigns as error that the trial judge should have disqualified himself from hearing the cause by reason of interest or prejudice. Respondent filed a motion requesting Judge Sapp to disqualify himself and to transfer the case to another judge. The motion was denied. Respondent argues that on every discretionary ruling in this cause, the trial judge has ruled against her. We have carefully examined the record, the record of this case on its prior two appeals to this Court, and the allegations of respondent contained in her motion to remove the trial judge. There is no substantial evidence to support either respondent’s allegations or respondent’s arguments. This assignment of error is overruled.

Respondent argues that it was error for Superior Court Judge Seay to issue a writ of habeas corpus for petitioner. A simple reading of G.S. 17-6 disposes of respondent’s argument:

“Application for the writ shall be made in writing, signed by the applicant — (1) To any one of the justices or judges of the Appellate Division. (2) To any one of the superior court judges, either during a session or on vacation.”

We have carefully considered each of respondent’s three remaining assignments of error and feel that no useful purpose can be served by an ad seriatum discussion. In our opinion respondent had a fair hearing free from prejudicial error.

Affirmed.

Judges Morris and Martin concur.

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210 S.E.2d 223, 24 N.C. App. 99, 1974 N.C. App. LEXIS 1938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-custody-of-cox-ncctapp-1974.

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