Published on:

Child Custody and Excusable Neglect

In Price v. Boccardy, the North Carolina Court of Appeals, in an unpublished opinion, reviewed Defendant’s appeal from the trial court’s order denying Defendant’s Rule 60(b) motion to set aside a final custody order.

Price v. Boccardy,  COA20-127 (N.C. App 2020).

Facts:  Plaintiff and Defendant were the parents of a minor child, three-year-old A.B. Plaintiff Mother filed a verified complaint seeking custody, claiming that the minor child was at substantial risk for bodily injury and sexual abuse. Plaintiff received an ex parte order awarding her temporary legal and physical custody. Defendant filed an answer denying Plaintiff’s allegations and a counterclaim seeking temporary and permanent legal and physical custody. The trial court’s March 7, 2018 order included that the ex parte order would remain in effect, with Defendant Father receiving at least one supervised visitation per week until the permanent hearing was scheduled.

After several hearings on the matter with both parties represented by counsel, on August 8, 2028 the Court entered a temporary order awarding full legal and physical custody to Plaintiff Mother, and Defendant received supervised visits for a minimum of one hour per week, providing for further hearings upon completion of an evaluation of the family. The trial court entered an order modifying the temporary order when the supervised visit location expelled the  Defendant. Defendant would be allowed to resume the visits when he agreed to follow all the visitation location rules, including not bringing weapons on the site.

The case was scheduled for a special setting hearing on March 5, 2019. On February 13, 2019 Defendant’s counsel filed a notice of withdrawal over differences of opinion on which witnesses would testify at trial. Defendant was present in Court to contest counsel’s withdrawal. Defendant’s counsel received an order to withdraw even though the judge told Defendant that nothing could be heard without the attorneys being present. Defendant claims he did not learn of Counsel’s order to withdraw until it was received by mail on March 1, 2019.

The current matter came on for hearing on March 5, 2019, with Plaintiff and her counsel present. The Court had the bailiff check outside the courtroom for Defendant. The Court confirmed that both parties were mailed the notice of hearing. The Court contacted Defendant’s former counsel confirming that Defendant had been made aware of the court hearing date.

The Court began the trial. After hearing Plaintiff’s evidence, the superior Court clerk received a call from Defendant after being alerted to the court date by the former counsel’s paralegal. Defendant notified the clerk that he was two hours away and believed the trial was scheduled for March 7 rather than March 5. The clerk advised Defendant to wait for a call back before heading to the Court. The clerk called back, stating the trial was complete and a ruling was entered in the matter. A final permanent order granted legal and physical custody of the minor child, permitted Defendant to re-establish visitation under the November 2018 order.

Defendant filed a motion seeking to set aside the custody order under Rule 60(b)(1) of the North Carolina Rules of Civil Procedure, claiming his failure to appear for the permanent custody hearing was due to excusable neglect. The same judge that heard the permanent custody action denied Defendant’s motion to set aside the custody order as Defendant’s failure to appear was not due to excusable neglect.

Issue:  Was the trial court abusing its discretion by denying the Defendant’s Rule 60(b)(1) motion to set aside the custody order.

Holding:  No.

Rationale:  The N.C. Supreme Court in Sink v. Easter, 217 S.E.2d 532, 541 (N.C. 1975), held that review of a motion for relief under 60(b) be limited to determining whether the Court abused its discretion. In White v. White, 324 S.E.2d 829, 833 (N.C. 1985), the N.C. Supreme Court held that a ruling should be given great deference and be upset only upon a showing that the Court’s actions were manifestly unsupported by reason and a showing that the decision was arbitrary to a degree that it could not have been the result of a reasoned decision.

This Court held in Mitchell County DSS v. Carpenter, 489 S.E.2d 437, 439 (N.C. App. 1997) that excusable neglect is a question of law and fully reviewable on appeal; however, the decision is final if competent evidence supports its conclusion.

Defendant challenged three of the trial court’s findings of facts claiming facts did not support them. The N.C. Supreme Court in Sisk v. Transylvania Cmty. Hosp. Inc., 695 S.E.2d 429, 434 (N.C. 2010), held that findings of fact by a trial judge, if supported by competent evidence, shall be conclusive, even if evidence to the contrary exists. This Court held that erroneous findings of fact, not necessary in determining the outcome of the case, do not constitute reversible error. In re T.M., 638 S.E.2d236, 240 (N.C. App. 2006).

This Court determined in Trivette v. Trivette, 590 S.E.2d 298, 304 (N.C. App. 2004), that a party’s negligence regarding a hearing date does not constitute excusable neglect. In Trivette, this Court held that Defendant’s failure to appear, having actual notice and aware he needed counsel, does not constitute excusable neglect. (Id.). Excusable neglect is dependent on all circumstances reasonably expected of a party in paying proper attention to his case. Defendant’s unchallenged findings of fact establish that Defendant had actual knowledge of the March 5 hearing.

Like Trivette, the trial court found that the Defendant had actual notice that the hearing set for March 5, 2019. The Defendant had almost one month to secure new counsel. Defendant had an affirmative duty to inquire about the date of his hearing and cannot now assert his negligence to do so was excusable neglect.