Walton v. Walton
| Decision Date | 18 December 2018 |
| Docket Number | No. COA18-410,COA18-410 |
| Parties | Thomas S. WALTON, Plaintiff, v. Josie B. WALTON, Defendant. |
| Court | North Carolina Court of Appeals |
The Lea/Schultz Law Firm, P.C., by James W. Lea, III, Wilmington, for plaintiff-appellant.
No brief for appellee.
Thomas S. Walton ("Husband") appeals from the trial court's 16 August 2017 order requiring him to pay $2,750.00 per month in alimony to Josi B. Walton ("Wife"). We affirm in part, reverse in part, and remand.
Husband and Wife were married on 3 October 1998 and separated with the intent to remain separate and apart on 8 December 2015. The parties bore no children during their marriage. On 18 December 2015, Husband filed a complaint for equitable distribution and a motion for an ex parte temporary order of sequestration of the former marital residence. An ex parte temporary order of sequestration granting Husband the exclusive use of the marital residence was entered that same day.
Wife filed an answer on 22 December 2015 and asserted counterclaims for post-separation support, alimony, equitable distribution, interim distribution, sequestration of the marital home, attorney's fees, and a temporary restraining order. The trial court entered an order on post-separation support on 23 February 2016.
The parties' claims for equitable distribution and alimony were heard before the trial court over multiple hearings on 11-13 January 2017, 14 February 2017, and 11 April 2017. On 16 August 2017, the trial court entered an order on alimony and attorney's fees ("the Alimony Order"). The Alimony Order requires Husband to pay $2,750.00 per month in alimony to Wife. Husband filed timely notice of appeal of the Alimony Order.
Jurisdiction lies in this court pursuant to N.C. Gen. Stat. § 50-19.1 (2017), which permits the immediate appeal of an order adjudicating a claim for alimony.
We initially note multiple appellate rule violations regarding the record on appeal. The first page of Husband's contract with the transcriptionist to order a portion of the trial transcript is included within the record, but the second page is missing and it is unclear whether Husband contracted for the transcript within fourteen days of filing his notice of appeal on 14 September 2017. N.C. R. App. P. 7(a) ().
On 30 November 2017, Husband filed a motion for extension of time to produce the transcript pursuant to Rules 7(b)(1) and 27(c) of the Rules of Appellate Procedure with the trial court. On the 15 December 2017, the trial court granted an extension until 26 December to produce the transcript. On 22 December, Husband filed a second motion with the trial court seeking an extension until 26 January 2018. The trial court allowed this second motion on the same day. The transcript was delivered on 24 January 2018.
Rule of Appellate Procedure 7(b)(1) provide, in relevant part:
[T]he trial tribunal, in its discretion and for good cause shown by the appellant, may, pursuant to Rule 27(c)(1), extend the time to produce the transcript for an additional thirty days. Any subsequent motions for additional time required to produce the transcript may only be made pursuant to Rule 27(c)(2) to the appellate court to which appeal has been taken.
N.C. R. App. P. 7(b)(1) (emphasis supplied).
Based upon Rule 7(b)(1), the trial court did not have jurisdiction to allow Husband's subsequent 22 December motion for extension of time, and the transcript was not timely filed. Id.
As of 25 May 2018, Husband had not yet filed his appellant brief. On that date, Husband filed a motion for extension of time to file his brief, which this Court allowed by an order dated 29 May 2018. The Court's order gave Husband until 29 June 2018 to file his brief. On 25 June 2018, Husband filed a second motion for extension of time to file his brief. This motion indicated Husband had mistakenly only contracted to order transcripts for two of the five days of the trial on the parties' equitable distribution and alimony claims. Husband informed this Court that he had discovered his mistake and contracted with the transcriptionist to obtain the transcript for the three additional days of trial. By an order entered the 25 June 2018, this Court granted Husband until 30 July 2018 to file his brief.
On 26 July 2018, Husband filed a third motion for extension of time to file his brief. Husband explained in his third motion that the transcriptionist informed him that she expected to deliver the complete transcript on the 26 or 27 of July. Once he obtained the complete transcript, Husband intended to file a motion to amend the record on appeal to incorporate the additional three days of testimony. By an order entered 30 July 2018, this Court granted Husband until 9 August 2018 to file his brief.
On 7 August 2018, Husband filed a motion to amend the record on appeal. This motion requested inclusion of the transcript for the three additional days of trial and Husband's financial standing affidavit that had been submitted at trial. Husband subsequently filed his brief on 9 August. By an order entered 21 August 2018, this Court allowed Husband's motion to amend the record.
The Supreme Court of North Carolina has emphasized that "a party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal." Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008). This Court has held the failure to timely produce a trial court transcript is a nonjurisdictional defect. N.C. State Bar v. Sossomon , 197 N.C. App. 261, 270, 676 S.E.2d 910, 917 (2009) (); see Lawrence v. Sullivan , 192 N.C. App. 608, 666 S.E.2d 175, 181 (2008) ().
Our Supreme Court also explained in Dogwood that an appellate court should impose a sanction only when a party's nonjurisdictional rules violations rise to the level of a "substantial failure" under N.C. R. App. P. 25 or a "gross violation" under N.C. R. App. P. 34. Dogwood , 362 N.C. at 199, 657 S.E.2d at 366. Without a substantial or gross violation, this Court should not impose any sanction at all, but instead "the appellate court should simply perform its core function of reviewing the merits of the appeal to the extent possible." Id.
Wife has not filed an appellee brief to argue Husband's rule violations are substantial or gross. Neither have Husband's rule violations hindered our ability to review the merits of the case. This Court previously held in Sossomon that an appellant's failure to timely file a trial transcript in not a "substantial failure" or "gross violation" to warrant the imposition of sanctions. Sossomon , 197 N.C. App. at 273, 676 S.E.2d at 918.
Husband's failure to timely file the transcript and brief would have subjected his appeal to dismissal under Rule 25, had a motion to dismiss been filed by Wife.
N.C. R. App. P. 25. In the absence of a substantial or gross violation of the appellate rules arising from Husband's failure to timely file the transcript and brief, and the absence of a filed motion to dismiss, we follow our Supreme Court's instruction in Dogwood , decline to impose sanctions, and "review[ ] the merits of the appeal to the extent possible." Dogwood , 362 N.C. at 199, 657 S.E.2d at 366.
We strongly emphasize the importance of complying with the appellate rules and urge counsel to timely file materials within the applicable deadlines and follow the procedures specified in Rules 7(b)(1) and 27(c)(1)-(2) for obtaining extensions of time. N.C. R. App. P 7(b)(1), 27(c)(1)-(2).
Decisions regarding the amount of alimony are left to the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a manifest abuse of that discretion. When the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.
Williamson v. Williamson , 217 N.C. App. 388, 390, 719 S.E.2d 625, 626 (2011) (citations and quotation marks omitted). A trial court abuses its discretion when it renders a decision that is "manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow , 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (citations omitted). The trial court's conclusions of law are reviewable de novo . Romulus v. Romulus , 215 N.C. App. 495, 498, 715 S.E.2d 308, 311 (2011) (citation omitted).
Husband argues the trial court abused its discretion by imputing income to him based upon his earning capacity for past part-time motorcycle repair work. Husband asserts no competent evidence supports that he suppressed his income to disregard his spousal support obligation. We disagree.
The Alimony Order states, in relevant part:
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