Potts v. Potts

198 S.E.2d 203, 19 N.C. App. 193, 1973 N.C. App. LEXIS 1610

• Court: Court of Appeals of North Carolina
• Decided: August 8, 1973
• Docket: 7319DC279
• Status: Published

Opinion

BROCK, Judge.

Defendant assigns as error that the facts found by Judge Warren are not supported by the evidence.

The order appealed from recites: “The Court, after hearing evidence and testimony in this cause from the plaintiff, finds the following facts.” It appears from the foregoing recitation that an evidentiary hearing was conducted by Judge Warren; however, appellant has failed to include the evidence in the record on appeal. Appellant did file five sheets of paper each of which is marked substantially as follows: “Designated plaintiff’s exhibit # _presumably offered and accepted into evidence at hearing on November 14, 1972.” (Emphasis added.) The source of relevancy of these five sheets of paper is not clear and they will not be considered.

Where there is evidence offered before the trial court and appellant assigns as error that the evidence does not support the findings of fact by the trial judge, but does not include the evidence in the record on appeal, we will presume the facts found are supported by competent evidence.

Defendant assigns as error that the hearing was conducted in the absence of defendant and his counsel. The record reflects that the hearing on plaintiff’s motion had been continued at defendant’s request and was set for a day certain. Defendant and his counsel were well aware of the date set. Counsel apparently had another conflict and requested a further continuance. The trial court delayed the hearing for a part of the day to accommodate defense counsel, but when the matter was again reached the trial court proceeded to hear, the plaintiff’s evidence. Under the circumstances disclosed by this record defendant has failed to show an abuse of discretion.

Affirmed.

Judges VAUGHN and Baley concur.