Bass v. Bass , 105 N.C. App. 439 ( 1992 )

EAGLES, Judge.

In her first and second assignments of error, petitioner argues the trial court erred in dismissing her complaint based on her absence when her trial counsel was present and prepared to proceed. We agree.

Judge Boner’s order recited that he dismissed petitioner’s complaint because the “Petitioner was not present, and her testimony in court would be necessary because this matter is contested.” In Terry v. Bob Dunn Ford, Inc., 77 N.C. App. 457, 335 S.E.2d 227 (1985), this court stated:

“[0]ur research fails to disclose . . . any statute, rule of court or decision which mandates the presence of a party to a civil action or proceeding at the trial of, or a hearing in connection with, the action or proceeding unless the party is specifically ordered to appear. Those who are familiar with the operation of our courts in North Carolina know that quite frequently a party to a civil action or proceeding does not appear at the trial or a hearing related to the action or proceeding."

Hamlin v. Hamlin, 302 N.C. 478, 482, 276 S.E.2d 381, 385 (1981). Plaintiff had not been ordered to appear for trial. The appearance of his attorney of record was sufficient to meet the requirement that he prosecute his action.

Terry, 77 N.C. App. at 458, 335 S.E.2d at 228. Here, too, the petitioner had not been ordered to appear at trial. Therefore, it was error to dismiss her complaint based on her absence. Accordingly, this case must be reversed and remanded for determination of the amount of any permanent ongoing child support and the exact amount of arrears.

We also note that G.S. 52A-12.2 provides that in child support cases where “the obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the complaint or offers evidence constituting a defense, the court, upon request of either party, shall continue the hearing to permit evidence relative to the duty to be adduced by either party by deposition or by appearing in person before the court.” (Emphasis added.)

Because of our disposition of petitioner’s first two assignments of error, we do not reach her remaining assignments.

Reversed and remanded.

Judges COZORT and ORR concur.