Von Ramm v. Von Ramm

Decision Date19 June 1990
Docket NumberNo. 8914DC701,8914DC701
Citation99 N.C.App. 153,392 S.E.2d 422
CourtNorth Carolina Court of Appeals
PartiesMarie S. VON RAMM v. Olaf T. VON RAMM.

Pulley, Watson, King & Hofler, P.A. by Tracy Kenyon Lischer and Donna B. Slawson, Durham, for plaintiff-appellee.

Maxwell, Martin, Freeman & Beason, P.A. by James B. Maxwell, Durham, for defendant-appellant.

GREENE, Judge.

Defendant appeals the trial court's 30 January 1989 judgment denying defendant's motion to set aside a 17 June 1988 judgment relating to child support payments.

The record shows that defendant was married to plaintiff when plaintiff filed a complaint for alimony pendente lite, child custody and support in 1984. The trial court entered an order granting plaintiff's request in 1984, including these conclusions of law:

Based upon the incomes, estates, and accustomed standard of living of the parties, [defendant] should pay to [plaintiff], to provide her sufficient means whereon to subsist during the pendency of this suit ... $1,124.00 ... per month; ... [defendant] should pay to [plaintiff] as child sup[p]ort the following: ... $2,959.00 per month ... [and] $1,835.00 per month, of said sum may be discharged by paying directly, if [defendant] so elects, the current house payment ... (emphasis added).

At the time the court granted defendant's divorce prayer, plaintiff and two children of the marriage occupied the family residence at 3433 Dover Road.

Defendant also filed a complaint requesting absolute divorce, which the court granted in 1986, reserving for later resolution the issue of equitable distribution. Trial of equitable distribution matters was in June, 1987, but prior to the court's entry of judgment, defendant filed a motion in the cause in October, 1987, requesting that the court modify the 1984 child support, alimony and child custody provisions. Plaintiff filed a response to defendant's motion and moved the court to hold defendant in contempt for failure to comply with the court's order to pay child school expenses, and plaintiff's medical and insurance expenses. The court heard argument concerning these motions in March, 1988.

The court entered equitable distribution judgment on 25 April 1988, which included a provision awarding plaintiff the house and lot at 3433 Dover Road.

On 17 June 1988, the trial court entered its order concerning defendant's motion to modify and for plaintiff's motion for contempt, in which it modified the 1984 judgment, reducing defendant's child support payments somewhat and concluding as matters of law that defendant should pay the expenses plaintiff requested in her contempt prayer and "[e]xcept where modified ... all other Orders governing support and maintenance of the minor children remain in full force and effect."

Within 10 days of entry of this order, defendant filed a Rule 59 motion to set it aside. In December, 1988, the court heard the parties' argument concerning defendant's motion to set aside the judgment and plaintiff's motion for contempt. On 30 January 1989, the court entered an order denying defendant's motion to set aside and instead of assessing defendant in contempt, ordered him to pay back child support and alimony to plaintiff.

Defendant gave written notice of appeal on 3 February 1989:

NOW COMES OLAF T. VON RAMM, the Defendant in the above captioned matter, through counsel, and hereby gives notice of appeal to the Court of Appeals of North Carolina from the [Judgment] entered on the 30th day of January, 1989, in the District Court of Durham County by The Honorable Richard G. Chaney in regard to issues surrounding the amount and manner of continuing payments of child support.

In the settled record on appeal, the parties stipulated that "[n]otice of Appeal from the judgments [of June 1988 and January 1989] was given in a proper and timely fashion."

Subsequent to docketing of the record on appeal, plaintiff moved this court to dismiss defendant's purported appeal from the 17 June 1988 judgment, asserting that defendant had appealed only from the 30 January 1989 judgment denying defendant's Rule 59 motion.


The issues are: (I) whether defendant's notice of appeal vested this court with jurisdiction to review the 17 June 1988 judgment; (II) whether the parties' stipulation to a notice of appeal can confer jurisdiction on a reviewing court; and (III) whether the trial court erred in denying defendant's motion to set aside the June 1988 judgment.


Defendant contends that the language of his notice of appeal "made apparent" his intent to appeal from the June 1988 judgment in addition to the January 1989 order. We disagree.

Proper notice of appeal requires that a party "shall designate the judgment or order from which appeal is taken ..." N.C.R.App.P. 3(d) (Cum.Supp.1989). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks, Com'r of Labor v. Gooden, 69 N.C.App. 701, 707, 318 S.E.2d 348, 352 (1984). A court "may not waive the jurisdictional requirements of [federal appellate] Rules 3 and 4, even for 'good cause shown' under Rule 2, if it finds that they have not been met." Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285, 291 (1988) (footnote omitted).

Notice of appeal from denial of a motion to set aside a judgment which does not also specifically appeal the underlying judgment does not properly present the underlying judgment for our review. Chaparral Supply v. Bell, 76 N.C.App. 119, 120, 331 S.E.2d 735, 736 (1985) (appellant's appeal of the court's denial of appellant's Rule 60 motion to set aside entry of summary judgment did not include appeal of the underlying summary judgment against appellant); see also Brooks (notice of appeal from judgment of contempt against appellant did not infer appellant's intent to appeal from a subsequent judgment dismissing appellant's counterclaim).

Despite these principles, we may liberally construe a notice of appeal in one of two ways to determine whether it provides jurisdiction over an apparently unspecified portion of a judgment. First, "a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake." Smith v. Independent Life Ins. Co., 43 N.C.App. 269, 274, 258 S.E.2d 864, 867 (1979), citing 9 Moore's Federal Practice § 203.17, 3-80--3-82 (2d ed. 1990) (footnotes omitted) (emphasis added). Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the "functional equivalent " of the requirement. Torres, 487 U.S. at 317, 108 S.Ct. at 2409, 101 L.Ed.2d at 291 (overlooking a party's failure to comply with a federal notice of appeal requirement of...

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    ...is not misled by the mistake." Evans v. Evans, 169 N.C. App. 358, 363, 610 S.E.2d 264 (2005) (quoting Von Ramm v. Von Ramm , 99 N.C. App. 153, 156–57, 392 S.E.2d 422 (1990) ). In view of the fact that DSS and the guardian ad litem have not moved to dismiss respondent-mother's appeal and hav......
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