Sturdivant v. Sturdivant , 31 N.C. App. 341 ( 1976 )

BRITT, Judge.

In the first assignment of error argued in his brief, plaintiff contends the trial court erred in its finding of fact to the effect that defendant disputed the seriousness of the child’s condition, for the reason that said finding was not supported by competent evidence. While this assignment might have merit from a technical standpoint, we are unable to perceive how plaintiff was prejudiced by the challenged finding since it had no bearing upon the relief granted.

In the second assignment of error argued in his brief plaintiff contends the court erred in entering the 15 April 1976 order for the reason that there were insufficient findings of fact supported by competent evidence to justify an award of custody of the child to defendant. We find no merit in this assignment.

The record discloses that defendant was awarded custody of the child by the order dated 24 February 1976 (filed 30 March 1976), that no exception was noted to any finding of fact or conclusion of law in said order, and that no exception was made to, or appeal taken from, the entry of said order. The only new relief granted by the 15 April 1976 order, the one from which plaintiff appealed, was the modification of the 30 March 1976 order to provide that plaintiff would have the care and custody of the child from 9 April 1976 until 1 May 1976, after which he would return the child to defendant. We hold that plaintiff has not properly presented the question which he attempts to raise by the second assignment argued in his brief, therefore, it is overruled. Rule 10, N. C. Rules of Appellate Procedure, 287 N.C. 698 (1975).

In the third assignment of error argued in his brief plaintiff seeks to raise questions regarding certain purported correspondence between defendant’s attorney and the physician and administrator of the hospital providing treatment and care for the child. Clearly said correspondence was not made a part of any of the court proceedings in this cause, therefore, we decline to afford it any consideration.

A review of this cause leaves the impression that while defendant has sought the processes of the court to provide her with relief, plaintiff has attempted to frustrate rulings of the court that were not pleasing to him. It appears that Judge Davis has heard all phases of the case from its inception and has acted with patience and understanding to all persons concerned. It further appears that in two instances plaintiff has frustrated orders of the trial court by giving notice of appeal to this court, the first of which was not perfected.

We consider it appropriate to point out that while an appeal from an order providing for the custody of a minor child removes the cause from the trial court to the appellate court, and pending the appeal the trial court is without jurisdiction to punish for contempt, taking an appeal does not authorize a violation of the custody order. “One who wilfully violates an order does so at his peril.” If the order is upheld by the appellate court, the violation may be inquired into when the cause is remanded to the trial court. Beall v. Beall, 290 N.C. 669, 228 S.E. 2d 407 (1976) ; Joyner v. Joyner, 256 N.C. 588, 124 S.E. 2d 724 (1962) ; Collins v. Collins, 18 N.C. App. 45, 196 S.E. 2d 282 (1973).

The order appealed from is affirmed and this cause is remanded to the district court for further proceedings not inconsistent with this opinion.

Affirmed.

Judges Vaughn and Martin concur.