Stanback v. Stanback

• Decision Date: 06 June 1975
• Docket Number: No. 18,18
• Citation: 287 N.C. 448,215 S.E.2d 30
• Parties: Fred J. STANBACK, Jr. v. Vanita B. STANBACK.
• Court: North Carolina Supreme Court

Page 30

215 S.E.2d 30

287 N.C. 448

Fred J. STANBACK, Jr. v. Vanita B. STANBACK.

No. 18.

Supreme Court of North Carolina.

June 6, 1975.

Walser, Brinkley, Walser & McGirt by Walter F. Brinkley, Lexington, for defendant-appellant.

Norwood Robinson and George L. Little, Jr., of Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, Clarence Kluttz, Salisbury, for plaintiff-appellee.

HUSKINS, Justice:

In her first assignment defendant wife alleges the Court of Appeals erred in allowing an immediate appeal from the four interlocutory orders of the trial court.

Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment. Currin v. Smith, 270 N.C. 108, 153 S.E.2d 821 (1967); Steele v. Hauling Co., 260 N.C. 486, 133 S.E.2d 197 (1963); See 2 McIntosh, North Carolina Practice and Procedure § 1782 (1956); Annotation, Appealability of Order Pertaining to Pretrial Examination, Discovery, Interrogatories, Production of Books and Papers, or the Like, 37 A.L.R.2d 586 (1954). However, the appellate courts of this State in their discretion may review an order of the trial court, not otherwise appealable, when such review will serve the expeditious administration of justice or some other exigent purpose. See Howland v. Stitzer, 240 N.C. 689, 84 S.E.2d 167 (1954); Ward v. Martin, 175 N.C. 287, 95 S.E. 621 (1918); Trust Co. v. Morgan, Attorney General, 9 N.C.App. 460, 176 S.E.2d 860 (1970); 2 McIntosh, North Carolina Practice and Procedure § 1782(7) (Phillips Supp.1970), and cases cited therein. Such discretion is not intended to displace the normal procedures of appeal, but inheres to appellate courts under our supervisory power to be used only in those rare cases in which normal rules fail to administer to the exigencies of the situation. When discretionary review is allowed, the question of appealability becomes moot. Furr v. Simpson, 271 N.C. 221, 155 S.E.2d 746 (1967).

Such is the case here. The Court of Appeals determined that a trial on the merits of this protracted controversy would be facilitated by allowing immediate appeal from the pretrial orders. Accordingly, it reviewed the merits of the orders pursuant to its supervisory authority contained in G.S. § 7A--32(c). The issue of premature appeal thereupon became moot and arguments on the point were rendered feckless. Hence, we consider the opinion of the Court of Appeals on the merits of this controversy, expressing no opinion on the appealability of the interlocutory orders.

Assignment five, raising a second procedural point, alleges that Judge Crissman correctly dismissed plaintiff's appeal for failure to serve the statement of case on appeal within the time provided by law. Therefore, it is contended by defendant wife that the Court of Appeals should not have reached the merits of this cause.

The facts found by Judge Crissman in his order of dismissal show the following: Judge Exum held a hearing on 27 March 1974 to consider defendant's motion for the allowance of $2,000.00 to defray the expenses of preparing for the hearing on the motions pending at that time. In open court he announced that defendant's motion would be allowed and the parties agreed that the order allowing said motion could be signed at a subsequent time. The order was actually signed after the adjournment of that session of court, but was antedated 27 March 1974 and filed on 10 April 1974. Plaintiff gave notice of appeal in open court, and appearing upon Judge Exum's written order is a recital of that fact, to wit: 'The plaintiff excepts to the foregoing order and gives notice of appeal from the entry of said order in open court at the time of the announcement of the decision of the court.' Judge Exum's signature follows that recital.

Plaintiff's notice of appeal, given in open court following the announcement of the order, was sufficient to comply with the 'taking of appeal' and 'notice of appeal' requirements of G.S. §§ 1--279 and 1--280. While this record is silent regarding the formal entry of this appeal on the judgment docket, such deficiency is not fatal under G.S. § 1--280 since the taking of the appeal is not denied and notice has, in fact, been served in time. Simmons v. Allison, 119 N.C. 556, 26 S.E. 171 (1896); Atkinson v. R.R., 113 N.C. 582, 18 S.E. 254 (1893). 'The requirement that the appeal should be entered on the record is to furnish indisputable proof of the fact, and is immaterial when the fact of the appeal having been taken is not denied, and notice of appeal has, in fact, been served in time, or waived.' Barden v. Stickney, 130 N.C. 62, 40 S.E. 842 (1902).

Although the date of entry of the appeal on the judgment docket, if in fact so entered, does not appear on the face of this record, we are asked to determine whether plaintiff's statement of case on appeal was served within fifteen days From the entry of the appeal taken as required by G.S. § 1--282. Defendant wife contends the fifteen days began to run on 27 March 1974 when plaintiff gave notice of appeal in open court and that plaintiff's service of case on appeal on 23 April 1974 was not timely. We find this contention unsound.

There was an agreement 'that counsel for the parties would prepare and submit to the Court orders carrying out the rulings which were made by the Court.' In a letter to the trial judge dated 4 April 1974 counsel for defendant admitted that he had been instructed to prepare the orders. The record further reveals several other letters (written to the trial judge after the 27 March 1974 hearing) which point to disagreement over the substance of the court's ruling. This disagreement is substantiated by Judge Exum's letter of 12 April 1974 to the parties in which he scheduled a hearing to settle the controversy 'with regard to the form and perhaps the substance of the various recent orders.' Clearly, at the time the judgment was 'announced' on 27 March 1974 both the form and substance of the order to be drafted by counsel and mailed to Judge Exum for signing at some later date were unsettled.

On these facts this case is readily distinguishable from Land Co. v. Chester, 170 N.C. 399, 87 S.E. 111 (1915), cited by defendant wife. In that case judgment was rendered upon a jury verdict before adjournment of the court and the trial judge signed the judgment after adjournment. By agreement appellants were allowed ninety days to serve their case on appeal. Under the facts of that case the time for serving a statement of case on appeal was said to run from the adjournment of the term of court during which the judgment was rendered.

Here, there was no agreement for serving the case on appeal and more than the perfunctory signing of the order was required after the hearing was adjourned. The form and substance of the order, which was being prepared by the attorney for defendant wife, were in no sense final as of the 27 March 1974 hearing. Under these circumstances, 'the careful and experienced lawyer cannot decide what to do until he has seen and read the judgment.' Fisher v. Fisher, 164 N.C. 105, 80 S.E. 395 (1913). Therefore, we hold that under the facts of this case the time for serving a statement of case on appeal pursuant to G.S. § 1--282 began to run when the order, and the notice of appeal endorsed thereon, were filed on 10 April 1974. Plaintiff's service was thus within the period contemplated by that statute.

We next consider whether the Court of Appeals erred, as defendant contends, in holding plaintiff had a right to have this case transferred to the district court division.

This action was properly instituted in superior court prior to the establishment of the district court in the Nineteenth Judicial District which embraces Rowan County. After numerous proceedings in superior court a custody and support judgment, filed 10 May 1968, was entered following a hearing during the 11 March 1968 Civil Session of Rowan Superior Court. The present proceeding arises from defendant's motion in the cause to modify that judgment pursuant to G.S. § 50--13.7.

A judicial decree in a child custody and support matter is subject to alteration upon a change of circumstances affecting the welfare of the child and, therefore, is not final in nature. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649 (1967). Consequently, the jurisdiction of the court entering such a decree continues as long as the minor child whose custody is the subject of the decree remains within its jurisdiction. Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974); Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965). The Superior Court of Rowan County rendered the original support and custody judgment in this action and under the above principles maintained continuing jurisdiction over further proceedings. Unless that court was somehow divested of its continuing jurisdiction, it was the only court which could modify the earlier judgment upon a motion in the cause and a showing of a change of circumstances. Tate v. Tate, 9 N.C.App. 681, 177 S.E.2d 455 (1970); 3 Lee, North Carolina Family Law § 222 (Supp.1974).

Plaintiff contends that under the Judicial Department Act of 1965, codified in Chapter 7A of the General Statutes, the district court is now the Only proper division for hearing child custody and support matters. While G.S. § 7A--244 unquestionably allocates such matters to the District Court Division of the General Court of Justice, we are not persuaded that statute requires the district court to hear the motion in the cause filed in this case.

Under the Judicial Department Act of 1965 both trial divisions Concurrently possess the aggregate of original civil trial jurisdiction reposed in the General Court of Justice...