Craver v. Craver

• Decision Date: 03 October 1979
• Docket Number: No. 105,105
• Citation: 298 N.C. 231,258 S.E.2d 357
• Parties: Haydee C. CRAVER, Plaintiff, v. Paul E. CRAVER, Defendant, and United States of America, Defendant.
• Court: North Carolina Supreme Court

Page 357

258 S.E.2d 357

298 N.C. 231

Haydee C. CRAVER, Plaintiff, v. Paul E. CRAVER, Defendant and United States of America, Defendant.

No. 105.

Supreme Court of North Carolina.

Oct. 3, 1979.

Gene B. Gurganus, Jacksonville, for plaintiff-appellant.

Cameron & Collins, by E. C. Collins, Jacksonville, for defendant-appellee.

George M. Anderson, U. S. Atty., by Elaine R. Pope, Asst. U. S. Atty., Raleigh, for defendant U. S.

Rufus L. Edmisten, Atty. Gen., by R. James Lore, Associate Atty., Raleigh, for the state, amicus curiae.

EXUM, Justice.

We allowed plaintiff's petition for writ of certiorari pursuant to App.R. 21 to review two orders of the Court of Appeals, the latest in a series of rulings by District Court Judge Walter P. Henderson and the Court of Appeals in a dispute that has become procedurally entangled. Because of defendant's procedural defaults the Court of Appeals erred in making these orders. They are reversed.

Apparently unsatisfied with her estranged husband's support payments ¹ for her and two children born of the marriage, plaintiff filed action for alimony, child support, and divorce from bed and board on 16 March 1977. After a hearing Judge Henderson on 29 March 1977 ordered defendant to pay $325.00 per month alimony pendente lite and $225.00 per month for child support. The onset of litigation and Judge Henderson's order had a chilling effect on defendant's willingness to support his dependents, for as of 15 July 1977 defendant had made no alimony payments and was $187.00 in arrears in child support. In response to plaintiff's motion to find defendant in contempt, Judge Henderson conducted a hearing on 15 July 1977, found facts, and concluded that defendant's wilful failure to make payments as earlier ordered placed him in contempt of court. Judge Henderson ordered that defendant could purge himself of contempt by paying arrearages totaling $1,487.00. Judge Henderson also ordered defendant to execute an assignment of his retirement pay due from the United States to the extent of $550.00 per month for plaintiff's use. ² The assignment was to be executed on or before 1 September 1977. Should defendant fail to assign his retirement benefits as ordered, Judge Henderson directed him to appear on 9 September 1977 to show cause why his wages should not be attached and why he should not be punished for contempt.

On 27 September 1977, after a hearing, Judge Henderson entered an order in which he recited prior proceedings and found that defendant had wilfully failed to pay arrearages earlier determined to be due and had wilfully failed to assign his retirement pay. The order concluded that defendant was in contempt of court. The order (1) provided that the United States, as garnishee, ³ pay 65 percent of defendant's retirement pay into court for plaintiff's use; (2) committed defendant to jail for six months; and (3) provided that defendant could purge himself of contempt by executing an assignment of wages as earlier ordered. This is the only order from which defendant attempted to perfect an appeal.

On 22 November 1977 Judge Henderson, on motion of plaintiff pursuant to Civ.P.R. 70, appointed plaintiff's counsel, Mr. Gene Gurganus, as commissioner to execute an assignment of wages for defendant and ordered the United States to comply with the assignment. Defendant neither excepted to nor appealed from this order. Mr. Gurganus executed an assignment of defendant's retirement pay to the extent of $550.00 per month or 65 percent, whichever is less.

On 2 December 1977 defendant filed a petition for writ of supersedeas in the Court of Appeals. That Court on 6 December 1977 stayed Judge Henderson's 27 September 1977 order to the extent that it provided that more than 20 percent of defendant's retirement pay "be attached." The Court of Appeals also stayed Judge Henderson's 22 November 1977 order to the extent that it required Mr. Gurganus to "execute an assignment of more than twenty (20) percent of defendant's" retirement pay. Judge Henderson's orders, to the extent provided, were "stayed pending appellate review by this Court of the proceedings and the said orders of 27 September 1977 and 22 November 1977." The Court of Appeals further noted that "If the defendant fails to perfect appeal in accordance with the North Carolina Rules of Appellate Procedure, this stay order will be dissolved."

The parties being unable to agree to the record on appeal, Judge Henderson settled the record by order entered 16 February 1978 pursuant to App.R. 11(c). Rather than obtaining the clerk's certificate within ten days thereafter as required by App.R. 11(e) and filing the settled record in the Court of Appeals within ten days of the clerk's certificate as required by App.R. 12(a), defendant did nothing until 6 March 1978. On that date defendant petitioned the Court of Appeals for a writ of certiorari. Attached to the petition was the record on appeal as settled by Judge Henderson. The petition asked only that the Court of Appeals require Judge Henderson to amend the record to include certain items defendant contended were essential for determination of the dispute but which Judge Henderson had deleted when he settled the record. ⁴ Responding to this petition, the Court of Appeals postponed ruling "pending expiration of time for oral argument, or further order."

Thereafter on 6 April 1978 Judge Henderson dismissed defendant's appeal pursuant to App.R. 25 on the grounds: (1) the settled record on appeal was not presented to the clerk for certification within ten days after settlement, App.R. 11(e); (2) the record on appeal was not filed with the Court of Appeals within ten days after the clerk's certification, App.R. 12(a); and (3) the record on appeal was not filed with the Court of Appeals within 150 days after giving notice of appeal, App.R. 12(a).

Assuming no doubt that the end of litigation was in sight, plaintiff on 16 May 1978 moved the Court of Appeals to dissolve its earlier stays of Judge Henderson's 22 November and 27 September orders. Plaintiff argued in support of this motion that defendant had failed to perfect his appeal from these orders and that his appeal had been dismissed.

On 5 June 1978 the Court of Appeals responded to plaintiff's motion as follows: Referring to defendant's petition for writ of certiorari filed 6 March 1978, the Court of Appeals purported to grant certiorari and affirmed Judge Henderson's settlement of the record. Proceeding then without benefit of arguments or briefs, the Court of Appeals went on to conclude that Judge Henderson's 27 September 1977 order "attaching 65 percent of monies payable to defendant by the United States of America is contrary to law," referring to its opinions in Phillips v. Phillips, 34 N.C.App. 612, 239 S.E.2d 743 (1977) and Elmwood v. Elmwood, 34 N.C.App. 652, 241 S.E.2d 693 (1977). ⁵ The Court of Appeals vacated this order in its entirety and remanded the case to the district court "for further proceedings not inconsistent with" Phillips and Elmwood. Plaintiff's motion to dissolve the 6 December 1977 stays was denied.

We issued our writ of certiorari on plaintiff's application to consider the correctness of the Court of Appeals' 5 June 1978 rulings. We conclude that all these rulings must be vacated on procedural grounds.

Defendant's appeal from Judge Henderson's 27 September 1977 order was simply not before the Court of Appeals on 5 June 1978. Defendant's challenge to that order, Qua appeal on its merits, was derailed procedurally when defendant failed to comply with the Rules of Appellate Procedure following Judge Henderson's settlement of the record on appeal. Within ten days of the settlement on 16 February 1978 defendant was required to obtain the clerk's certification of the record. App.R. 11(e). Within ten days of the clerk's certification of the record, and no later than 150 days after giving notice of appeal, defendant was required to file the settled record in the Court of Appeals. App.R. 12(a). He did neither of these things. He did nothing within the time permitted by the Rules.

"Ordinarily our legal system operates in an adversary mode. One incident of this mode is that only those who properly appeal from the judgment of the trial divisions can get relief in the appellate divisions. This can be a strict requirement." In re Lancaster, 290 N.C. 410, 424, 226 S.E.2d 371, 380 (1976). The Rules of Appellate Procedure are mandatory. Walter Corporation v. Gilliam, 260 N.C. 211, 132 S.E.2d 313 (1963). They are designed to keep the process of perfecting an appeal flowing in an orderly manner. "Counsel is not permitted to decide upon his own enterprise how long he will wait to take his next step in the appellate process." Ledwell v. County of Randolph, 31 N.C.App. 522, 523, 229 S.E.2d 836, 837 (1976). Thus, where an appellant fails "within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed. Prior to the docketing of an appeal in an appellate court motions to dismiss are made to the court . . . from which appeal has been taken." App.R. 25. A failure by appellant to meet the requirements of App.R. 11(e), Ledwell v. County of Randolph, supra, or to comply with the mandate of App.R. 12(a), Byrd v. Alexander, 32 N.C.App. 782, 233 S.E.2d 654 (1977), works a loss of the right of appeal. In re DeFebio, 237 N.C. 269, 74 S.E.2d 531 (1953). Judge Henderson thus acted correctly on 6 April 1978 in dismissing defendant's appeal from the order of 27 September 1977. The Court of Appeals erred in ignoring this ruling. There being no appeal pending in the appellate division after the appeal's dismissal on 6 April, the Court of Appeals had no authority on 5 June to consider the merits of the order.

Nor was this order placed before the Court of Appeals for review by way of defendant's petition for certiorari filed on 6...