McGinnis v. McGinnis

• Decision Date: 08 January 1980
• Docket Number: No. 7926DC142,7926DC142
• Citation: 261 S.E.2d 491,44 N.C.App. 381
• Parties: Carol C. McGINNIS v. Kermit D. McGINNIS.
• Court: North Carolina Court of Appeals

Page 491

261 S.E.2d 491

44 N.C.App. 381

Carol C. McGINNIS v. Kermit D. McGINNIS.

No. 7926DC142.

Court of Appeals of North Carolina.

Jan. 8, 1980.

Durant Williams Escott, Charlotte, for plaintiff-appellee.

Ellis M. Bragg, Jr., Charlotte, for defendant-appellant.

PARKER, Judge.

On this appeal defendant seeks to challenge both the 25 August 1978 order which vacated an order entered ten days earlier and the 28 November 1978 order which granted full faith and credit to portions of the New York decrees.

On 1 September 1978 defendant-husband gave timely notice of appeal from the order of 25 August 1978. He now contends that this notice of appeal divested the trial court of jurisdiction to enter further orders in the cause and, therefore, that the order of 28 November 1978 was a nullity. We disagree. "As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is Functus officio." Sink v. Easter, 288 N.C. 183, 197, 217 S.E.2d 532, 541 (1975); Accord, Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963). However, this rule does not apply where further proceedings in the trial court indicate that the appeal has been abandoned. Sink v. Easter, supra. The initial question for decision on this appeal is, therefore, whether defendant's appeal from the 25 August 1978 order was abandoned.

In Sink v. Easter, supra, plaintiff's action was dismissed for lack of jurisdiction, and on 28 March 1974, the trial judge denied plaintiff's motion to set aside the judgment under Rule 60(b) and plaintiff gave notice of appeal. On 1 April 1974 the court, on its own motion, set aside its order denying the motion, and on 9 May 1974, plaintiff submitted a "withdrawal and abandonment of appeal," which was allowed. On 16 May 1974 an order was entered allowing the Rule 60(b) motion, and defendant duly appealed. On appeal, our Supreme Court held that plaintiff's abandonment of the earlier appeal served to reinvest the trial court with jurisdiction over the entire cause: "We construe the proceedings appearing in the record on 1 April 1974 to constitute an adjudication by the court that plaintiff's prior appeal from the denial of her Rule 60(b) motion had been abandoned and that plaintiff, by appearing at said hearing, gave proper notice of her intention to abandon the same." 288 N.C. at 198, 217 S.E.2d at 542. In the later case of Bowen v. Motor Co., 292 N.C. 633, 234 S.E.2d 748 (1977), the court emphasized that Sink "should not be interpreted as holding that the mere filing of a motion directed to an order or judgment from which an appeal has previously been taken and the appearance at a hearing thereon constitutes an abandonment of the prior appeal, nothing else appearing." 292 N.C. at 636, 234 S.E.2d at 750. The Court in Bowen, supra, held that plaintiffs who filed notice of appeal, and who thereafter filed a motion to take a voluntary dismissal, had not abandoned their appeal so as to reinvest the lower court with jurisdiction.

In the present case, defendant properly gave notice of appeal on 1 September 1978, but between that date and 28 November 1978 when judgment was entered, a period of 88 days, he took no steps to perfect that appeal. Contrary to the mandate of App.R. 11(a) defendant neither tendered a proposed record on appeal within 30 days, nor did he seek any extension of time to settle such a record as permitted by App.R. 27(c). Defendant did file a motion on 18 September 1978 requesting the court to decline to render further rulings pending disposition of the appeal from the 25 August 1978 order, and only thereafter did he participate in oral argument directed to the merits. Had defendant done nothing more than participate in the hearing on 18 September 1978, we would be compelled to conclude, under the authority of Bowen v. Motor Co., supra, that defendant had not abandoned his appeal of 1 September 1978. However, in our opinion his failure to perfect that appeal by the time judgment was entered on 28 November 1978 constituted an abandonment which reinvested the trial court with jurisdiction to render further orders in the cause. In effect, during the period September to November 1978 defendant was actively seeking to ensure a judgment on the merits in his favor, while at the same time purporting to pursue, but failing to perfect, an appeal from a previous order which had operated to his disadvantage. Having neglected for 88 days after giving notice of appeal on 1 September 1978 to take any further step to perfect his appeal, defendant cannot now justly contend, merely because the 28 November 1978 order also disadvantaged him, that the court was without jurisdiction to render it.

We hold that the defendant's purported appeal from the 25 August 1978 order is not before this Court because defendant failed, after giving notice of appeal on 1 September 1978, to take any further timely step required by the Rules of Appellate Procedure to perfect his appeal from that order. Therefore, the only order which is now before this Court is that entered on 28 November 1978, from which defendant properly perfected an appeal.

We note at the outset that the 28 November 1978 order did not determine all of the issues raised in this action. Although the trial court enforced the 28 October 1977 New York decree to the extent that it had awarded plaintiff judgment for $4,225.00 in alimony and support arrearages, and although the court granted full faith and credit to the alimony and child support provisions of the 15 February 1977 New York decree, it ordered evidentiary hearings on defendant's motion to modify the latter decree. The Court also ordered further hearings on the issue of defendant's entitlement to suspension of alimony accruing on or after 5 June 1978, based on an amendment to the New York Domestic Relations Law, effective 5 June 1978, which permits suspension of alimony where a custodial parent has wrongfully interfered with visitation rights of the noncustodial parent. Despite the interlocutory nature of the 28 November 1978 order, we conclude that the defendant's appeal therefrom can be presently maintained. Since the order granting plaintiff-wife's claim for $4,225.00 in arrearages and granting full faith and credit to a decree imposing a continuing support obligation affects a "substantial right" of defendant, it is reviewable by virtue of G.S. 1-277 and G.S. 7A-27(d). See, Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976).

Proceeding to the merits of defendant's appeal, we first consider whether the trial court erred in giving full faith and credit to that portion of the New York decree of 28 October 1977 awarding plaintiff judgment for $4,225.00 in alimony and child support arrearages. Although defendant argues in his brief that the trial court could not properly entertain an action to enforce a foreign judgment without the introduction in evidence of a properly authenticated copy of that foreign judgment, we note that defendant, by his answer, has waived any defect in authentication of the judgment. See 2 Stansbury's North Carolina Evidence § 195 (Brandis Rev. 1973). Plaintiff attached to her complaint a copy of the 28 October 1977 New York judgment which she sought to enforce, and defendant, in his answer, admitted that the attached order was filed in the New York action.

Defendant also contends that the New York court issued the decree without giving him notice and an opportunity to be heard on the matter, thereby depriving him of his constitutional right to procedural due process. Article IV, § 1 of the Constitution of the United States, provides: "Full Faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." In a suit brought to enforce the judgment of a sister state, that judgment may be collaterally attacked only upon the following grounds: (1) lack of jurisdiction; (2) fraud in procurement; or (3) that it is against public policy. Howland v. Stitzer, 231 N.C. 528, 58 S.E.2d 104 (1950).

Defendant does not contend that the New York court entering the 28 October 1977 decree lacked jurisdiction or that there was fraud in the procurement of the decree. His contention is that the order, entered without notice and without an evidentiary hearing, was in violation of his due process rights and is contrary to the public policy of this state. If in fact defendant's right to due process was denied, the New York decree would not be entitled to full faith and credit. There is, however, no question in the present case that defendant had proper notice of the proceedings in the New York court which led to the judgment of which he complains. Defendant was personally served with process, and he filed pleadings and supporting documents in the New York Court. The question remaining, then, is whether defendant was given a reasonable opportunity to be heard. "If the defendant was denied a reasonable opportunity to be heard, a judgment rendered against him will be void in the State of rendition itself, if this state is a State of the United States, and in any event will not be recognized or enforced in other states." Restatement (Second) of Conflict of Laws § 25, Comment h (1971). We conclude that defendant was in fact afforded a "reasonable opportunity to be heard" and that enforcement of the judgment against him is not, therefore, against the public policy of this state.

The 28 October 1977 decree of the New York court was given full faith and credit recognition...