Appeal and Error_notice of appeal from additional findings_not timely
An appeal from a child custody order was dismissed where the trial court made
additional findings and plaintiff missed the deadline for filing notice of appeal from that order.
The appellate court does not acquire jurisdiction without a proper notice of appeal, and neither
the court nor the parties may waive the jurisdictional requirements, even for good cause.
J. ALBERT CLYBURN, P.L.L.C., by J. Albert Clyburn, for
plaintiff-appellant.
HOSFORD & HOSFORD, P.L.L.C., by Sofie W. Hosford, for
defendant-appellee.
TIMMONS-GOODSON, Judge.
Tina Sillery (“plaintiff”) appeals an order of the trial court
permitting Scott Sillery (“defendant”) to relocate, with custody of
the parties' minor child, to West Virginia. For the reasons stated
herein, we dismiss the appeal.
The pertinent factual and procedural history of this case is
as follows: Plaintiff and defendant were married from 31 October
1993 to 28 September 1995. Their son, Chad Thomas Sillery, was
born 23 May 1994. At the time of the parties' divorce, the trial
court awarded primary custody of Chad to plaintiff with visitation
rights for defendant. On 5 March 2002, the trial court modified
the custody arrangement, awarding primary custody of Chad todefendant with visitation rights for plaintiff. On 8 April 2003,
defendant filed a Motion in the Cause, seeking a modification in
the custodial order which would accommodate defendant's plans to
relocate with Chad to West Virginia. Plaintiff filed a response to
defendant's motion whereby she requested that, if defendant
relocated to West Virginia, she be awarded primary custody of Chad.
On 29 July 2003, the trial court heard evidence on defendant's
custody modification motion and issued an order containing the
following conclusions of law:
1. That a substantial and material change of
circumstances has occurred regarding the
best interests of the parties' minor
child.
2. That the Defendant is relocating to the
state of West Virginia and the same will
adversely affect the welfare of the
parties' minor child in that the
relocation will prevent the said child
from being geographically situated close
to his mother.
3. That the best interests of the parties'
minor child require that his primary
care, custody and control remain with the
Defendant and secondary custody to the
Plaintiff in the form of visitational
[sic] privileges.
The trial court ordered that “the primary care, custody and control
of Chad Thomas Sillery be and hereby is ordered to remain with the
Defendant.” The trial court further ordered that “the secondary
care, custody and control of the aforesaid minor child be and
hereby is ordered to remain with the Plaintiff subject to a
modified visitational [sic] schedule.”
On 12 August 2003, plaintiff filed a Rule 52(b) Motion for
Additional Findings of Fact requesting, inter alia, the followingaddition to the 29 July 2003 custody order: “That the Court
include a conclusion of law as follows: 'that this Court is
without authority to prevent the Defendant from relocating with the
parties' minor child from Brunswick County, North Carolina to
Glengarry, West Virginia.'”
The trial court granted plaintiff's
motion and filed, on 12 August 2003, an amended order incorporating
the specific conclusion of law requested by plaintiff. Plaintiff
also filed, on 12 August 2003, a notice of appeal of the 29 July
2003 order.
Plaintiff filed a notice of appeal on 23 September
2003 of the 12 August 2003 order.
On 23 October 2003, plaintiff
and defendant executed a stipulation purporting to extend the time
in which to file the notice of appeal for the order entered 12
August 2003 until 23 September 2003.
The issue presented by this case is whether plaintiff has
preserved for appeal any issue relative to the 29 July 2003 custody
order. Because we conclude that plaintiff has failed to raise any
issue arising out of the 29 July 2003 order, we dismiss the appeal.
The Rules of Appellate Procedure provide the time for taking
appeals as follows:
In civil actions and special proceedings, a
party must file and serve a notice of appeal:
(1) within 30 days after entry of judgment if
the party has been served with a copy of
the judgment within the three-day period
prescribed by Rule 58 of the Rules of
Civil Procedure; or
. . . .
(3) if a timely motion is made by any party
for relief under Rules 50(b), 52(b) or 59
of the Rules of Civil Procedure, the 30-
day period for taking appeal is tolled as
to all parties until entry of an order
disposing of the motion and then runs as
to each party from the date of entry of
the order or its untimely service upon
the party, as provided in subsections (1)
and (2) of this subdivision (c).
N.C.R. App. P. 3(c) (2004).
Civil Procedure Rule 52(b) allows for
the amendment of findings by the trial court and provides that
“[u]pon motion of a party made not later than 10 days after entry
of judgment the court may amend its findings or make additional
findings and may amend the judgment accordingly.” N.C.R. Civ. P.
52(b) (2004).
In the present case, the trial court entered its original
judgment on 29 July 2003. Plaintiff filed the Motion for
Additional Findings of Fact on 12 August 2003, fourteen calendar
days after the judgment was entered and four days after the time
for seeking such an amendment expired. Nevertheless, the trial
court decided the merits of plaintiff's motion.
Plaintiff then
filed the Notice of Appeal of the 12 August 2003 order on 23
September 2003, forty-two days after the order granting the Motion
for Additional Findings of Fact was entered, and twelve days after
the time for filing a notice of appeal had expired. Thus, we
dismiss plaintiff's appeal of the 12 August 2003 order for failure
to comply with the time limit set forth in N.C.R. App. P. 3(c)(3).
“Without proper notice of appeal, the appellate court acquires no
jurisdiction and neither the court nor the parties may waive the
jurisdictional requirements even for good cause shown under Rule2.” Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483
(1994), aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995).
Plaintiff's sole argument on appeal asserts that the trial
court erred by concluding as a matter of law that it had “no
authority to restrict the Defendant from moving with the parties'
minor child from Brunswick County, North Carolina to the state of
West Virginia.” Notwithstanding the substantial energy and effort
that plaintiff devotes to addressing the issue in her brief, the
question is not properly before this Court. Plaintiff assigned
error to a conclusion of law which appears in the 12 August 2003
order, not the 19 July 2003 order which is the only order properly
appealed to this Court.
Because the appeal of the 12 August 2003 order is the basis
for plaintiff's sole assignment of error, dismissing the appeal on
these grounds disposes of this matter in its entirety.
DISMISSED.
Judges TYSON and GEER concur.
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