Smith v. Rhodes

Court of Appeals of North Carolina

Smith v. Rhodes

192 S.E.2d 607, 16 N.C. App. 618, 1972 N.C. App. LEXIS 1778

CourtCourt of Appeals of North Carolina

DecidedNovember 22, 1972

Docket7228DC718

StatusPublished

Cited by3 cases

This text of 192 S.E.2d 607 (Smith v. Rhodes) 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.

Bluebook

Smith v. Rhodes, 192 S.E.2d 607, 16 N.C. App. 618, 1972 N.C. App. LEXIS 1778 (N.C. Ct. App. 1972).

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Opinion

GRAHAM, Judge.

One of the findings of fact relied upon by the trial court to support a change in custody is “[t]hat the two minor children . . . now desire to live and reside with their mother, the defendant, and to visit with their father, the plaintiff, during vacation times.” There is no evidence in the record to. support this finding. Apparently it is based on information obtained during a private conversation which the trial judge had with one of the children, over plaintiff’s objection, and out of the presence of plaintiff and his counsel. Plaintiff’s first assignment of error encompasses exceptions to the court’s private examination of the child and to the finding of fact apparently arising therefrom. The assignment of error must be sustained.

*620 All parties in a court proceeding have a constitutional right to be present at all of its stages so that they may hear the evidence and have an opportunity to refute it. Consequently, while the trial judge may question a child in open court in a custody proceeding, he cannot do so privately except by the consent of the parties. Raper v. Berrier, 246 N.C. 193, 97 S.E. 2d 782. In accord: Shepherd v. Shepherd, 273 N.C. 71, 159 S.E. 2d 357; Horton v. Horton, 12 N.C. App. 526, 183 S.E. 2d 794, cert. denied, 279 N.C. 727; Cook v. Cook, 5 N.C. App. 652, 169 S.E. 2d 29.

The judgment is vacated and this cause is remanded for rehearing.

Error and remanded.

Judges Vaughn and Hedrick concur.

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GRAHAM, Judge.

One of the findings of fact relied upon by the trial court to support a change in custody is “[t]hat the two minor children . . . now desire to live and reside with their mother, the defendant, and to visit with their father, the plaintiff, during vacation times.” There is no evidence in the record to. support this finding. Apparently it is based on information obtained during a private conversation which the trial judge had with one of the children, over plaintiff’s objection, and out of the presence of plaintiff and his counsel. Plaintiff’s first assignment of error encompasses exceptions to the court’s private examination of the child and to the finding of fact apparently arising therefrom. The assignment of error must be sustained.

*620 All parties in a court proceeding have a constitutional right to be present at all of its stages so that they may hear the evidence and have an opportunity to refute it. Consequently, while the trial judge may question a child in open court in a custody proceeding, he cannot do so privately except by the consent of the parties. Raper v. Berrier, 246 N.C. 193, 97 S.E. 2d 782. In accord: Shepherd v. Shepherd, 273 N.C. 71, 159 S.E. 2d 357; Horton v. Horton, 12 N.C. App. 526, 183 S.E. 2d 794, cert. denied, 279 N.C. 727; Cook v. Cook, 5 N.C. App. 652, 169 S.E. 2d 29.

The judgment is vacated and this cause is remanded for rehearing.

Error and remanded.

Judges Vaughn and Hedrick concur.

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Bluebook (online)

192 S.E.2d 607, 16 N.C. App. 618, 1972 N.C. App. LEXIS 1778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rhodes-ncctapp-1972.

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