Dishman v. Dishman

246 S.E.2d 819 (1978)

Shelia DISHMAN (Massey) v. Leonard Paul DISHMAN.

No. 7722DC709.

Court of Appeals of North Carolina.

August 15, 1978.

*822 Homesley, Jones, Gaines & Dixon by Wallace W. Dixon, Statesville, for plaintiff-appellant.

L. Hugh West, Jr., Statesville, for defendant-appellee.

CLARK, Judge.

Plaintiff's argument that the 26 April court did not have jurisdiction over the "res," the child, because the child was not present, overlooks the rule that in a child custody proceeding the court has continuing jurisdiction to do anything necessary at any time to supervise the welfare of the minor child, though the child is not actually before the court. G.S. 50-13.-5(c)(3); Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906 (1948); In re Greer, 26 N.C.App. 106, 215 S.E.2d 404 (1975). The court had jurisdiction at the time of the 1972 consent judgment and never lost it, regardless of where the child was from time to time.

Nor did the court, in the case sub judice, err in refusing to consider visitation rights, as such consideration would be a modification of the prior order's grant of exclusive custody to defendant and the court may modify custody or visitation only upon a showing of changed circumstances and on adequate motion in the cause. G.S. 50-13.7(a). Plaintiff's motion to set aside the 26 April order was not an adequate motion for this purpose.

Plaintiff's motion and her appeal from the adverse ruling does raise the question of whether the trial court erred in concluding that there was no excusable neglect. G.S. 1A-1, Rule 60(b) allows relief from "a final judgment, order, or proceeding." We find that the custody order of 26 June was a "final order" under the Rule, though the order could be changed subsequently upon a proper showing of change of circumstances under G.S. 50-13.7.

In the order appealed from, the court made no finding of meritorious defense. A court need not make findings as to meritorious defense after a hearing on a motion to set aside a judgment for excusable neglect when it concludes there was no excusable neglect shown. Whether or not there was a meritorious defense is immaterial in such case. Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266 (1946); Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67 (1945).

However, although it is not necessary that a court make findings as to meritorious defense when it finds adequate notice and concludes that there was no excusable neglect, it would be the better practice to make such findings. A court's conclusion as to excusable neglect is a conclusion of law and is reviewable and reversible. Powell v. Weith, 68 N.C. 342 (1873); U. S. I. F. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E.2d 787 (1975). The court's findings are generally conclusive on appeal if supported by any competent evidence, Carter v. Anderson, 208 N.C. 529, 181 S.E. 750 (1935); Wynnewood, supra, but findings made under a misapprehension of the law are not binding and if the findings are insufficient to support the conclusion the order will be reversed. Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84 (1949); Ellison v. White, 3 N.C.App. 235, 164 S.E.2d 511 (1968). Thus, a court may have its conclusion of no excusable neglect reversed, and, because it made no finding of the issue of meritorious defense, will have to make such findings on remand. It is better practice to make them at the initial hearing on the motion.

Rule 60(b)'s grounds for vacation of a prior judgment or order for "mistake, inadvertence, surprise, or excusable neglect" are the exact grounds spelled out in former G.S. 1-220, and cases decided under the former statute remain good authority. Doxol Gas v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890 (1971); Shuford, North Carolina Practice and Procedure, § 60-6, pp. 507-508. What constitutes "excusable neglect" depends on what may be reasonably expected of a party in paying proper attention to his case under all the surrounding circumstances. When a litigant has not properly prosecuted his case *823 because of some reliance on his counsel, the excusability of the neglect on which relief is granted is that of the litigant, not of the attorney. The neglect of the attorney will not be imputed to the litigant unless he is guilty of inexcusable neglect. Kirby v. Asheville Contracting Co., 11 N.C.App. 128, 180 S.E.2d 407 (1971); Shuford, supra. The law does not demand that a litigant in effect be his own attorney, when he employs one to represent him. The litigant must exercise proper care. Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, cert. den. 291 N.C. 176, 229 S.E.2d 689 (1976). But the litigant who employs counsel and communicates the merits of his case may reasonably rely on his counsel and counsel's negligence will not be imputed to him unless he has ample notice either of counsel's negligence or of a need for his own action. Norton, supra. Where a litigant fails to appear and a default judgment is rendered against him the law of "excusable neglect" is controlled by two old cases. Where it appeared, upon the defendant's motion to set aside a default judgment, that the same had been regularly calendared for trial, the defendant had notice thereof and was afforded full opportunity to file his answer, but that his attorney had failed to do so, his attorney's negligence was imputed to him. His neglect was not excusable. Gaster v. Thomas, 188 N.C. 346, 124 S.E. 609 (1924). But where no laches are attributable to the client, he will be granted relief. Geer v. Reams, 88 N.C. 197 (1883).

In the case sub judice, the court's conclusion that there was no excusable neglect was based on the findings that plaintiff was served with process and notified that the hearing on defendant's motion would be heard on 26 April and that she employed counsel and conferred with him and did not appear at hearing. These facts are supported by competent, uncontroverted evidence. However, they are insufficient to support the court's conclusion. In Gaster, supra, it was held that negligence in failure to appear was inexcusable in view of the fact that the case was duly calendared and the movant had actual knowledge. In the case sub judice, it was stipulated that the case did not appear on the printed trial calendar but was handwritten onto the add-on calendar by a deputy clerk. It does not appear from the record on appeal whether this calendaring procedure conformed to the rules arranged by the chief district judge under the provisions of G.S. 7A-146, but this is not determinative of the issues on appeal in view of actual notice to plaintiff, who relied on her attorney's advice to disregard the notice. It was the duty of her attorney to notify the court properly that he represented plaintiff and to determine whether the hearing was to be held on the date specified in the notice served upon her. His negligence in failing to perform this duty should not be imputed to her. Her failure to appear was understandable and excusable since she had the right to rely upon her counsel's representation that the case would not be heard on the date specified in the motion served upon her.

Because the trial court erred in its conclusion that there was no justifiable reason to set aside judgment, i. e., because there was no excusable neglect, the court's order denying plaintiff's motion is reversed and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

BROCK, C. J., and WEBB, J., concur.