Clark v. Clark

209 S.E.2d 545 (1974)

23 N.C. App. 589

Marie Ponder CLARK v. Patricia Proffitt CLARK et al.

No. 7424DC747.

Court of Appeals of North Carolina.

November 20, 1974.

*547 Gudger & Sawyer by Lamar Gudger, Asheville, and Ronald W. Howell, Marshall, for plaintiff-appellant.

*548 Riddle & Shackelford, P. A. by John E. Shackelford, Asheville, for defendants-appellees.

MORRIS, Judge.

Plaintiff's first assignment of error relates to the denial of her motions to dismiss at the conclusion of the defendant's evidence and at the conclusion of all the evidence. Plaintiff concedes that, notwithstanding the intentions of the parties to restrict subsequent modifications of the consent judgment the District Court had authority to change the custody provisions therein. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963). Plaintiff maintains, however, that a judgment awarding custody cannot be modified or disturbed except upon evidence proving a "substantial change of circumstances". She contends that such a change has not been shown in this case and therefore her motions to dismiss should have been granted. After carefully reviewing the record, we find that plaintiff's motions were properly denied.

We recognize the well-established principle that a change in circumstances must be shown in order to modify an order relating to the custody of a minor child. G.S. § 50-13.7; G.S. § 50-16.9; McDowell v. McDowell, 13 N.C.App. 643, 186 S.E.2d 621 (1972), and cases cited therein. In this case, however, we conclude that the defendant was not required to show a change in circumstances.

We note that no change in custody was made in this case. In fact the only effect of the order was to modify the visitation privileges of the defendant. In this regard we think Item 4 of the consent judgment of 11 August 1972 is especially pertinent. Item 4 provides as follows:

"4. This cause is retained for further orders and particularly for entry of special order further specifying the visiting privileges of the defendant, Patricia Proffitt Clark, which said special order only may be entered without showing of change of condition but any such special order shall be entered only after appropriate notice." (Emphasis supplied.)

Where the parties have specifically agreed to allow the trial judge to modify visitation privileges of a party without requiring a showing of change of condition, we are of the opinion, and so hold, that they are bound by their agreement. Thus, in this case, even assuming arguendo that defendant was unable to show a "substantial change in circumstances", plaintiff has no grounds for complaint.

The only other question raised on appeal by the plaintiff is whether the trial judge erred in refusing to hear and consider evidence concerning the mental and physical condition of the children, including medical evidence not available on 3 October 1973, but discovered and offered at the 4 March 1974 hearing and prior to the entry of the order of modification. We note that the record does not include the evidence that was purportedly offered and refused. Since appellant did not incorporate the excluded evidence into the record and thus disclose the alleged error, this assignment of error will not be considered. "An exception to the exclusion of evidence will not be considered when the record fails to disclose what the excluded evidence would have been." Barringer v. Weathington, 11 N.C. App. 618, 621, 182 S.E.2d 239, 242 (1971).

For the foregoing reasons, the order of the trial judge is affirmed.

Affirmed.

HEDRICK and BALEY, JJ., concur.