Spencer v. Spencer, COA02-334.

• Decision Date: 04 February 2003
• Docket Number: No. COA02-334.,COA02-334.
• Court: North Carolina Court of Appeals
• Parties: Rebecca Ann SPENCER, Plaintiff, v. Terry Edmund SPENCER, Defendant.

575 S.E.2d 780

156 NC App. 1

Rebecca Ann SPENCER, Plaintiff, v. Terry Edmund SPENCER, Defendant.

No. COA02-334.

Court of Appeals of North Carolina.

February 4, 2003.

Law Office of Ellen Arnold Kiernan, by Ellen Arnold Kiernan, Wilmington, for plaintiff appellant-appellee.

R. Kent Harrell, Burgaw, for defendant appellant-appellee.

McCULLOUGH, Judge.

Plaintiff Rebecca Ann Carroll, formerly Spencer, and defendant Terry Edmund Spencer were married on 18 May 1974. During their marriage, their daughter, Stephanie Ann Spencer, was born on 14 June 1980. The parties separated on 30 December 1988. On 6 April 1989, the parties filed a consent judgment with the New Hanover County District Court, which was signed by the Honorable Charles E. Rice.

This consent judgment contained several findings of fact, conclusions of law, and a decree. It was the complete embodiment of the issues between the parties, including child custody and visitation, statutory and non-statutory child support, spousal support and equitable distribution. The first six paragraphs are the general introductory paragraphs. Paragraphs 8 through 22 deal with all the above subjects. Paragraph 10, the focus of at least part of this appeal, is one of the several paragraphs that deals with child support, agreed upon by the parties. These include:

8. That the defendant should pay to the Clerk of Superior Court reasonable child support for the support and maintenance of the minor child.

....

10. That the parties should equally divide the cost for the college education of the daughter, STEPHANIE ANN SPENCER, including, but not limited to tuition, books, fees, room and board, clothing, transportation and other reasonable living expenses.

11. That the defendant shall maintain a policy of insurance providing coverage on his life in the sum of at least $100,000 naming the parties' child as beneficiary thereof. Said insurance shall be carried until husband's child support obligation shall cease.

....

19. Husband shall keep his present medical insurance on the minor child as long as his duty to support the minor child is in force.

Under the conclusions of law, the issue of child support is noted in Conclusion of Law No. 3, which simply states: "That the defendant shall provide reasonable support for the minor child." However, in the decree, the trial court orders:

2. That the defendant shall pay through the Clerk of Superior Court of New Hanover County the sum of One Hundred, Fifteen Dollars ($115.00) per week for the support and maintenance of the minor child and shall continue to do so until the minor child reaches eighteen (18) years of age, graduates from high school or otherwise becomes emanicpated. [sic]

3. That the defendant shall further keep the minor child on his present medical insurance and keep a $100,000 life insurance policy in force and effect with the minor child as the beneficiary until his obligation to provide support to said minor child has ended.

The provisions of paragraph 10 are notably missing from the decree even though the other child support provisions were included.

While the parties made other changes to the consent judgment, including a 3 January 1992 order for a change of language (involving a different section) and a 3 July 1998 dismissal of the statutory child support obligations under paragraphs 8 of the findings of fact and 2 of the decree after the child had become emancipated, this omission was never a problem until defendant ceased paying for college expenses. Eventually, plaintiff filed a motion pursuant to Rule 60(a) to correct the judgment on 12 January 2001. Her motion noted the absence of paragraph 10 from the decretal portion of the consent judgment. Plaintiff alleged that:

5. Since she started college, Defendant has paid sums toward Stephanie's educational expenses. However, Defendant failed to pay his share of all enumerated expenses and refused demand to pay same. Defendant recently advised Plaintiff and Stephanie that he intended to cease making payments toward Stephanie's college expenses when Stephanie reached the age of twenty-one (21).

Plaintiff argued that the failure to restate defendant's obligation to pay the college expenses as set forth in paragraph 10 "was a clerical mistake arising from oversight or omission."

This matter was heard before the Honorable L.W. Payne in the New Hanover County District Court on 28 February 2001. In an order entered 26 March 2001, the trial court noted that plaintiff contended that paragraph 10 "constitutes a legally binding agreement that defendant pay half the enumerated college expenses and that the absence of similar language in the conclusions of law and decretal portions of the order is a clerical omission or oversight[.]" It also noted that defendant contended "that the word `should' rather that [sic] `will' or `shall' is not a clear statement of intent and does not constitute a binding agreement." Ruling in favor of plaintiff and finding that such was an omission correctable by Rule 60(a), the trial court noted:

7. The Court notes in particular that paragraph 8 states that defendant "should pay ... reasonable child support". It is clear that this was intended as a legally binding obligation, and this intent was incorporated by mandatory "shall" language in the conclusions and decretal portions of the order. This obligation was in fact enforced by contempt in earlier proceedings herein.

8. In the hearing before the undersigned neither party offered evidence. However, plaintiff's counsel asserted, and defendant's counsel concurred, that defendant has in fact paid half of the college expenses during Stephanie's first three years of college.

9. Taken in isolation the language "should equally divide the cost" in paragraph 10 is arguably ambiguous as to whether it imports a legal obligation or merely a moral directive. However, in the total context of the consent order, particularly considering the use of the word "should" in paragraph 8, it is clear to this Court that the intent of the parties was to enter into a legally binding agreement that they "shall" divide the college costs. The behavior of the parties subsequent to the entry of the order is consistent with this clear statement of intent.

10. The absence of language concerning college expenses in the conclusions of law and decretal portions of the order is a clerical oversight or omission which should be corrected by the Court.

Defendant appeals from this order.

Although the order was filed on 28 March 2001, defendant was not served with a copy until 25 June 2001. Defendant filed his notice of appeal (NOA) with the trial court on 25 June 2001. The events that follow are the subject of the cross-appeal by plaintiff.

On 2 July 2001 (7 days from NOA), defendant filed a Request for Duplicate Copy of Verbatim Audio Court Record. Before making his request, defendant's counsel had spoken with Julie R. Ryan, a Certified Court Reporter, about transcribing the tapes when he received them. Ms. Ryan was already doing transcription work for him, and agreed to transcribe the tapes from the 26 March 2001 hearing. These tapes were not made available to defendant until 13 September 2001 (80 days from NOA) and defendant picked up the same on 14 September 2001 (81 days from NOA). Between the time when the tapes were requested and received, defendant had intermittently checked with the clerk's office to determine whether the copies had been completed. Once received, defendant forwarded the tapes to Ms. Ryan for transcription.

On 19 September 2001 (86 days from NOA), plaintiff filed a motion to dismiss defendant's appeal on the basis that defendant had failed to comply with the Rules of Appellate Procedure. Shortly thereafter, defendant filed a reply on 27 September 2001 (94 days from NOA), which included a letter from Ms. Ryan, signed on 21 September 2001 (88 days from NOA), stating that the letter served as a contract between her and defendant to prepare the transcript from the 26 March 2001 hearing. On 9 October 2001 (106 days from NOA), Ms. Ryan certified the delivery of the transcript to defendant.

A hearing was held on 29 October 2001 on plaintiff's motion to dismiss with the Honorable L.W. Payne again presiding. In denying plaintiff's motion, the trial court entered its order on 18 December 2001, finding that defendant had substantially complied with the Rules of Appellate Procedure. Plaintiff cross-appeals from this order.

Defendant appeals from the 28 March 2001 order and assigns as error the trial court's (I) modification of a prior court order pursuant to Rule 60(a) on the ground that the modification as entered by the trial court was a change in the substantive provision of the original order which affected defendant's substantive rights and was therefore not permitted under Rule 60(a); (II) Finding of Fact No. 9 on the ground that there was insufficient evidence to support it; (III) Finding of Fact No. 10 on the ground that there was insufficient evidence to support it.

Plaintiff cross-appeals from the 18 December 2001 order and assigns as error the trial court's denial of its motion to dismiss defendant's appeal pursuant to Rules 7 and 11 of the Rules of Appellate Procedure on the basis that defendant failed (I) to enter into a written contract with the Court Reporter or transcriptionist within 14 days of the filing of his notice of appeal; (II) to serve a proposed record on appeal within a maximum of 35 days from the filing of his notice of appeal in the event that defendant did not order a transcript of the hearing from which defendant appeals as is required by Rule 11 of the Rules of Appellate Procedure; (III) to file a motion or obtain an extension of time in which to produce a transcript of the hearing within a maximum of 74 days after filing of his notice of appeal as is required by Rule 7; and (IV) to timely serve a proposed record on appeal as required by Rule 9 in the event that a transcript was...