REBECCA ANN SPENCER,
Plaintiff,
v
.
TERRY EDMUND SPENCER,
Defendant.
Law Office of Ellen Arnold Kiernan, by Ellen Arnold Kiernan,
for plaintiff appellant-appellee.
R. Kent Harrell 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 dealwith 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, graduatesfrom 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 legallybinding 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 deemed not required by the court
to adequately review the trial court's proceedings.
(a) Ordering the transcript.
(1) Civil cases. Within 14 days after
filing the notice of appeal the appellant
shall arrange for the transcription of the
proceedings or of such parts of the
proceedings not already on file, as the
appellant deems necessary, in accordance with
these rules, and shall provide the following
information in writing: a designation of the
parts of the proceedings to be transcribed;
the name and address of the court reporter or
other neutral person designated to prepare the
transcript; and, where portions of the
proceedings have been designated to be
transcribed, a statement of the issues the
appellant intends to raise on appeal. The
appellant shall file the written documentation
of this transcript arrangement with the clerk
of the trial tribunal, and serve a copy of it
upon all other parties of record, and upon the
person designated to prepare the transcript.
. . . .
(b) Production and delivery of transcript.
(1) In civil cases: from the date the
requesting party serves the written
documentation of the transcript arrangement on
the person designated to prepare the
transcript, that person shall have 60 days to
prepare and deliver the transcript.
N.C.R. App. P. 7(a)(1) & (b)(1) (2002) (emphasis added).
N.C.R. App. P. 11, “Settling the record on appeal,” in
pertinent part, reads as follows: (a) By agreement. Within 35 days after
the reporter's or transcriptionist's
certification of delivery of the transcript,
if such was ordered . . . , or 35 days after
filing of the notice of appeal if no
transcript was ordered, the parties may by
agreement entered in the record on appeal
settle a proposed record on appeal prepared by
any party in accordance with Rule 9 as the
record on appeal.
N.C.R. App. P. 11(a) (2002) (emphasis added).
Plaintiff notes for this Court that defendant's notice of
appeal was filed on 25 June 2001. Accordingly, defendant was
supposed to execute a written contract with a transcriptionist by
9 July 2001 if a transcript was necessary. Defendant did not do
this until 21 September 2001. Nor did he file anything with the
Clerk's office as further required by Rule 7.
When an appellant enters into and files a contract with a
transcriptionist, it indicates to the appellee, through the
operation of Rule 7 and Rule 11, whether the record on appeal shall
be due 35 days after the notice of appeal, or a maximum of 74 days
after the notice of appeal. Thus, plaintiff could have received a
proposed record on appeal by a 30 July 2001 deadline based on the
35-day period. This did not occur. Nor did plaintiff receive a
transcript by 7 September 2001, which marked the end of the maximum
74-day period.
It is clear that defendant has not complied with the facial
requirements of Rule 7 and/or Rule 11. However, the fact that
defendant had been in contact with Ms. Ryan, the transcriptionist,
within the 14-day period after filing his notice of appeal bearsupon the resolution of these issues. Thus, this issue turns on
whether defendant “substantially complied” with the requirements of
the Rules of Appellate Procedure.
Defendant contacted the transcriptionist before or
contemporaneously with his filing of his notice of appeal, 25 June
2001. He requested the tapes from the clerk's office on 2 July
2001. The tapes were not made available to him until 13 September
2001. Defendant picked up the tapes on 14 September 2001, and
immediately forwarded them to the transcriptionist. On 9 October
2001, the transcriptionist certified that the trial transcript had
been produced and delivered to defendant.
This Court has held that when a litigant exercises
“substantial compliance” with the appellate rules, the appeal may
not be dismissed for a technical violation of the rules. See
Pollock v. Parnell, 126 N.C. App. 358, 484 S.E.2d 864 (1997);
Anuforo v. Dennie, 119 N.C. App. 359, 458 S.E.2d 523 (1995). On
point is the Pollock decision. In that case, this Court stated:
Rule 7 sets forth the appropriate
procedure for filing a timely appeal in
matters requiring transcription by a court
reporter. . . .
. . . .
The circumstances of this case fall
between the parameters of Rule 7 and Rule 11.
The trial of this case was heard in District
Court. N.C.G.S. 7A-198 provides that
electronic or other mechanical devices shall
be used in district court when court reporters
are not available. N.C.G.S. 7A-198(a) (1995).
This has become the common practice in all
district courts and was the practice employed
in [this case]. In order to obtain atranscript of the proceeding, the audio tape
must be transcribed. A court reporter's
services are not required.
Here, the defendant contacted the
district court prior to filing his notice of
appeal and inquired as to the transcribing of
the trial. The defendant also contacted the
Administrative Office of the Courts and sought
advice on how to comply with the time
requirements of the appellate rules when
appealing from the district court. Following
the instruction of the Johnston County Clerk
of Court, the defendant purchased copies of
the audio cassette tapes recording the trial
and arranged for an employee of the
defendant's attorney to transcribe the tapes
within 60 days. Consequently, the defendant
did not contract with a court reporter and did
not file a copy of a contract with a court
reporter within ten days from his notice of
appeal. The transcript of the trial was
delivered to the defendant on 20 June 1996,
within sixty days of the defendant's delivery
of the cassette tapes to the transcriptionist.
The defendant served the record on appeal on
the plaintiff on 10 July 1996.
On 30 May 1996, thirty six days after the
defendant filed his notice of appeal, the
plaintiff moved to dismiss the defendant's
appeal because it was not timely. The
plaintiff argues that the defendant was bound
by the time limit set in Rule 11, thirty five
days, because the defendant did not file a
copy of a written contract with a court
reporter within ten days of his notice of
appeal.
Pollock, 126 N.C. App. at 360-61, 484 S.E.2d at 865-66 (emphasis
added). The Pollock Court concluded that the appellant's actions
constituted “substantial compliance” with Rule 7. Id. at 362, 484
S.E.2d at 866.
Applying this case law, we hold that defendant's actions in
the present case constitute “substantial compliance” with theappellate rules. Like the Court in Pollock, this case was in
district court and was recorded on cassette tapes. Defendant made
a request for these tapes contemporaneously with his notice of
appeal, 7 days afterward. However, these tapes were not made
available by the clerk's office per defendant's request until 13
September. Our case law prevents a dismissal of an appeal based
upon a violation of appellate rules caused by a delay by a court
reporter, stating that, “[t]o hold otherwise would allow a delay by
a court reporter, whether with or without good excuse, to determine
the rights of litigants to appellate review.” Lockert v. Lockert,
116 N.C. App. 73, 81, 446 S.E.2d 606, 610, disc. review allowed and
writ of supersedes allowed, 338 N.C. 311, 450 S.E.2d 490 (1994).
We hold that the same principle applies to a clerk's office in the
delivery of audio recordings of proceedings in district court.
When an appellant makes a proper request of the clerk's office, as
in the present case, a dismissal based upon the delay of the same
in delivering the tapes is untenable.
While it may be that defendant should have served something in
the nature of written documentation of the audio tape request on
the opposing party to inform them of the status of the appeal,
failure to do so did not warrant dismissal. The trial court did
not err in denying plaintiff's motion to dismiss, and thus we
affirm.
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