Gates v. Gates, 8322DC826

• Citation: 69 N.C.App. 421,317 S.E.2d 402
• Decision Date: 03 July 1984
• Docket Number: No. 8322DC826,8322DC826
• Parties: Claudine Johnson GATES (Speiser) v. Roy Lee GATES.
• Court: Court of Appeal of North Carolina (US)

Page 402

317 S.E.2d 402

69 N.C.App. 421

Claudine Johnson GATES (Speiser) v. Roy Lee GATES.

No. 8322DC826.

Court of Appeals of North Carolina.

July 3, 1984.

Brinkley, Walser, McGirt, Miller & Smith by Stephen W. Coles and Charles H. McGirt, Lexington, for defendant-appellant.

J. Calvin Cunningham and Charles E. Frye, III, Lexington, for plaintiff-appellee.

BECTON, Judge.

A father who unilaterally reduced support payments appeals from an order directing resumption of payments and payment of arrears and attorney's fees. Because of an error of law in computing the arrears, we remand.

I

Defendant father, Roy Gates, and plaintiff mother, Claudine Gates, now Speiser, separated in 1964. They had two children: Richard, born 29 June 1954, and Mary Robin, born 13 April 1963. On 29 April 1964 the father signed a confession of judgment which contained the following provision:

Roy Lee Gates the defendant ... does hereby confess judgment in favor of the plaintiff ... for payments to her for alimony and separate maintenance for herself and for subsistence, support and maintenance of the minor children of their marriage ... in the following manner and amounts: $30.00 on the 4th day of May, 1964, and a like amount of $30.00 on Monday of each succeeding week thereafter until all and each of the following events shall have occurred:

(1) The youngest of the aforesaid children shall reach the age of 21 years or should become self-supporting, marry, or die prior to reaching 21 years of age.

(2) The said wife shall die or remarry.

The confession of judgment stated the father's desire "to provide alimony for his said wife, until her death or re-marriage and to provide for the support and maintenance of the minor children of the said marriage, ... until they become of legal age."

In an Order entered 25 May 1970 the trial court found that the existing level of support was inadequate, and ordered the father to pay an additional $15 per week in child support, bringing the total to $45 per week. In 1974, the mother remarried. Without obtaining a court order, the father thereupon reduced the payments by two-thirds because of the remarriage and because the son had reached 18 and become self-supporting. The son was 20 at the time. The father ceased payments altogether when the daughter graduated from high school at the age of 18 in June 1981.

On 15 October 1982 the mother filed a motion asking that the father show cause why he should not be held in contempt for failure to comply with the court amended confession of judgment. After an evidentiary hearing, the trial court found the father in wilful contempt and ordered him to pay $13,500 in arrears and $600 in attorney's fees, and to resume regular payments of $45 per week. This Order, filed 21 January 1983, is the subject of the father's appeal. The mother cross appeals from a later Order denying her motion to dismiss the father's appeal.

II

We first address the mother's cross appeal, as well as her motion to dismiss filed with this Court; both seek dismissal of the father's appeal. The trial judge announced his decision in open court on 13 January 1983 and directed the mother's attorney to prepare a written order. The Order, filed 21 January 1983, directed the father to pay $13,500 in arrears and $600 in attorney's fees, and to resume regular payments of $45 per week. On 31 January 1982 the father filed a motion to amend the findings of fact pursuant to N.C.Gen.Stat. § 1A-1, Rule 52(b) (1983). That motion was denied 7 March 1983, and the father filed notice of appeal the same day. Contending that the Order was entered 13 January 1983, the mother moved to dismiss in the trial court for failure to give timely notice of appeal. The trial court denied the motion, which the mother renews here; her cross appeal raises the same issues.

Since Rule 52(b) allows motions to amend findings within 10 days of entry of judgment, and since such a motion tolls the running of the period for giving notice of appeal, 4A N.C.Gen.Stat.App. I(2A), N.C.R.App.P. 3(c)(ii) (Supp.1983), the decisive question is whether judgment was entered 13 January or 21 January 1983. If the clerk's notation of the trial court's oral order of 13 January constituted entry of judgment, the Rule 52(b) motion was not timely and the father's appeal is subject to dismissal. If, on the other hand, judgment was not entered until the filing of the written order on 21 January 1983, the Rule 52(b) motion was timely and the father has preserved his right to appeal. Determination of this question requires application of N.C.Gen.Stat. § 1A-1, Rule 58 (1983), which provides in pertinent part:

Subject to the provisions of Rule 54(b): Upon a jury verdict that a party shall recover only a sum certain or costs or that all relief shall be denied or upon a decision by the judge in open court to like effect, the clerk, in the absence of any contrary direction by the judge, shall make a notation in his minutes of such verdict or decision and such notation shall constitute the entry of judgment for the purposes of these rules. The clerk shall forthwith prepare, sign, and file the judgment without awaiting any direction by the judge.

In other cases where judgment is rendered in open court, the clerk shall make a notation in his minutes as the judge may direct and such notation shall constitute the entry of judgment for the purposes of these rules. The judge shall approve the form of the judgment and direct its prompt preparation and filing. [Emphasis added.]

The trial court's judgment required the payment of arrears and attorney's fees totalling $14,100 and payment of $45 per week until all the conditions in the confession for judgment were met. This entailed payment until Robin Gates reached 21, died, married or became self-supporting before reaching 21. None of these conditions obtained at the time of the order, when Robin Gates was not yet 21. She could die, marry, or become self-supporting before reaching that age, and therefore the amount due remained indefinite. We therefore hold that the judgment was not for a "sum certain." See Black's Law Dictionary 1287 (5th ed.1979); N.C.Gen.Stat. § 25-3-106 (1965); Id. official comment; Branch Banking and Trust Co. v. Creasy, 301 N.C. 44, 269 S.E.2d 117 (1980). Therefore the first paragraph of Rule 58 did not apply. Entry of judgment depended instead on the direction of the trial judge under the second paragraph. In the present case, no direction appears in the record. At a hearing on the mother's original motion to dismiss the father's appeal, the trial judge ruled that he did not direct entry of judgment on 13 January 1983 and that judgment therefore did not become effective until the written order of 21 January 1983. The trial judge ordered the erroneous entry stricken under N.C.Gen.Stat. § 1A-1, Rule 60(a) (1983).

Unfortunately, the cases do not provide us with clear guidance as to the validity of the trial judge's action in the case sub judice. The inattention of the trial bench to the directory mandate of the second paragraph of Rule 58 has resulted in conflicting decisions on the dismissal of appeals for failure to give timely notice following entry of judgment. In Arnold v. Varnum, 34 N.C.App. 22, 237 S.E.2d 272, disc. rev. denied and appeal dismissed, 293 N.C. 740, 241 S.E.2d 513 (1977), we upheld a ruling denying dismissal of the appeal when the trial judge subsequently ruled that he did not intend to direct judgment in his oral order, even though the order effectively denied all relief. In Byrd v. Byrd, 51 N.C.App. 707, 277 S.E.2d 472 (1981), on the other hand, we upheld a dismissal even though the relief granted was complex and no specific direction appeared in the record. See also Story v. Story, 27 N.C.App. 349, 219 S.E.2d 245 (1975) (similar facts). But in Taylor v. Triangle Porsche-Audi, Inc., 27 N.C.App. 711, 220 S.E.2d 806 (1975), disc. rev. denied, 289 N.C. 619, 223 S.E.2d 396 (1976), the absence of any actual direction to enter judgment was held to make the clerk's notation ineffective as entry. Relying on Taylor and the literal language of the rule, Shuford takes the position that the trial judge must give "actual" direction. W. Shuford, North Carolina Civil Practice and Procedure § 58-5 (2d ed.1981). This mirrors the federal decisions, which have consistently held that the identical federal rule gives the clerk no power to enter judgment under the second paragraph of Rule 58 absent a specific direction from the court. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2784 (1973); Trans-America Ins. Co. v. Cannon-Lowden Co., 400 F.Supp. 817 (D.Mont.1975).

Obviously, the better practice is for the trial judge to specifically direct the clerk as to entry of judgment, and for the parties to ensure that the provisions of such direction are included in the record on appeal. However, we agree with the result in the present case, supported at least in part by the case law. Arnold v. Varnum. As discussed above, the father's notice of appeal was thus timely under the tolling provisions of 4A N.C.Gen.Stat.App. I(2A), N.C.R.App.P. 3(c) (Supp.1983). The motion to dismiss and the cross appeal are denied, and we proceed to consider the merits.

III

The father brings forward numerous assignments of error, only a few of which require our detailed examination. Foremost among them is his contention that the trial court erred in ruling that the alimony and child support provisions of the 1964 order were not disjunctive and that accordingly he remained obligated to pay until all the conditions as set forth therein were met. We agree that the court incorrectly applied the law to arrive at this result.

At the time the father signed the confession of judgment in 1964, the age of majority was 21, as it had been at common law. In the 1971 N.C.Sess.Laws ch. 585, § 1, as codified at N.C.Gen.Stat. ch. 48A (1976), the General Assembly abrogated the common-law definition and...