Appeal by defendant from a judgment and orders entered 24
February 2005 by Judge Craig Croom in Wake County District Court.
Heard in the Court of Appeals 15 March 2006.
Nicholls & Crampton, P.A., by Nicholas J. Dombalis, II, for
plaintiff-appellee.
Edward Carson, pro se, defendant-appellant.
BRYANT, Judge.
Edward Carson (defendant) appeals from an Equitable
Distribution Judgment and Alimony Order, an Order for Attorney Fees
and Costs, and a Qualified Domestic Relations Order, all filed on
24 February 2005. The Qualified Domestic Relations Order was
subsequently amended by the trial court on 3 March 2005. For the
following reasons, we dismiss this appeal.
Facts and Procedural History
Plaintiff and defendant were married on 2 February 1962 and
separated on 3 January 2003. On 24 March 2003, plaintiff filed averified Complaint seeking equitable distribution of marital
property and debts; an interim distribution of defendant's monthly
pension benefits and rental income received from a leased house
owned as marital property; a temporary restraining order and
injunction enjoining defendant from wasting or disposing of any
marital assets; alimony and postseparation support; and attorney's
fees. On 2 April 2003, defendant filed a Motion, Answer and
Counterclaim seeking a dismissal of plaintiff's claims for an
unequal division of the marital property and for a temporary
restraining order; denying plaintiff's allegations; and seeking a
divorce from bed and board from plaintiff, and an unequal division
of the martial property in his favor. The trial court entered a
Consent Order Granting Injunctive Relief and Interim Distribution
of Property on 9 April 2003, and plaintiff was granted an absolute
divorce from defendant on 5 March 2004.
After a hearing before the Honorable Craig Croom on 10 January
2005 the trial court entered: (1) an order awarding attorney's
fees and costs to plaintiff; (2) an equitable distribution judgment
and order awarding plaintiff alimony and postseparation support;
and (3) a qualified domestic relations order (amended on 3 March
2005) awarding plaintiff fifty-percent of defendants's monthly
pension benefit. Defendant appeals the entry of these orders and
judgment.
Defendant served plaintiff with a proposed record on appeal on
9 May 2005. Plaintiff filed objections to the proposed record on
3 June 2005. Defendant assented to some of plaintiff's objectionsand filed a request with the trial court for the judicial
settlement of the record on appeal. No hearing was set concerning
the settlement of the record on appeal and defendant subsequently
filed a record on appeal with this Court on 5 July 2005.
On 16 September 2005, plaintiff filed a motion to dismiss this
appeal because plaintiff had not consented to the record on appeal
filed by defendant and therefore defendant had not filed a settled
record on appeal. By order of this Court, entered 4 October 2005,
the record on appeal was stricken and defendant was ordered to file
a substitute record on appeal on or before 11 October 2005, “which
is in accordance with plaintiff-appellee's objection to the
original proposed record on appeal and which only includes the
assignments of error found in the original proposed record on
appeal.”
On 10 October 2005, defendant filed with this Court a
substitute record on appeal. Defendant did not serve plaintiff
with a copy of the substitute record on appeal and the substitute
record on appeal is not in compliance with the Order of this Court
entered 4 October 2005. On 25 October 2005, plaintiff filed a
motion to dismiss this appeal and defendant filed a response to
plaintiff's motion on 31 October 2005. In his response, defendant
“agrees that there is no settled Record on Appeal and that the
Substitute Record on Appeal is not Proper.”
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“Appellate review is based solely upon the record on appeal;
it is the duty of the appellant[] to see that the record iscomplete.”
Collins v. Talley, 146 N.C. App. 600, 603, 553 S.E.2d
101, 102 (2001) (citations and quotations omitted). Under Rule 11
of the North Carolina Rules of Appellate Procedure, the first
method of settling the record on appeal is by agreement of the
parties. In the instant case, the record on appeal was not settled
by agreement and defendant was required to and did serve a copy of
the proposed record on appeal on plaintiff. Plaintiff then served
defendant with a list of objections and proposed amendments to the
proposed record on appeal. Defendant agreed to all but one of
plaintiff's proposed amendments and the agreed upon amendments then
became a part of the record on appeal. N.C. R. App. P. 11(c). The
one amendment defendant did not agree to was plaintiff's request to
exclude the Affidavit for Attorney Fees and the Order for Attorney
Fees. These two documents should then have been “filed with the
record on appeal [as exhibits], along with any verbatim
transcripts, narrations of proceedings, documentary exhibits, and
other items that are filed pursuant to Rule 9(c) or 9(d)[.]”
Id.
Prior to filing a record on appeal with this Court, defendant
requested the trial court to settle the record. Defendant's
request was improper because a party may only request the trial
court “settle the record on appeal” if that party “contends that
materials proposed for inclusion in the record or for filing
therewith . . . were not filed, served, submitted for
consideration, admitted, or made the subject of an offer of proof
. . . .”
Id. None of these contentions were made by either
defendant or plaintiff and thus review by the trial court wouldhave been improper. Further, under Rule 11(c), the trial court's
functions in settling the record on appeal are:
to settle narrations of proceedings under Rule
9(c)(1) and to determine whether the record
accurately reflects material filed, served,
submitted for consideration, admitted, or made
the subject of an offer of proof, but not to
decide whether material desired in the record
by either party is relevant to the issues on
appeal, non-duplicative, or otherwise suited
for inclusion in the record on appeal.
N.C. R. App. P. 11(c) (as amended 6 May 2004). In the instant
case, plaintiff's objection to the inclusion of the Affidavit for
Attorney Fees and the Order for Attorney Fees in the record on
appeal was based on her belief that defendant did not appeal from
the Order for Attorney Fees. Therefore, whether these documents
should have been included in the record on appeal was not an issue
to be determined by the trial court.
(See footnote 1)
In response to plaintiff's first motion to dismiss this
appeal, this Court struck the filed record on appeal and ordered
defendant to “file and serve a substitute record on appeal with
this Court on or before 11 October 2005 which is in accordance with
plaintiff-appellee's objections to the original proposed record on
appeal . . . .” The substitute record on appeal filed by defendant
on 10 October 2005 does not conform with this Court's Order in the
following manner: (1) it does not include four documents
(plaintiff's exhibits 2, 14, and 24; and a certificate of service
filed by plaintiff on 8 March 2005) defendant agreed to include inthe record on appeal; (2) it includes a document (plaintiff's
exhibit 12) not found in the original proposed record on appeal or
in the record on appeal filed with this Court on 7 July 2005; (3)
it includes a document (the Qualified Domestic Relations Order)
defendant agreed to remove from the original proposed record on
appeal; and (4) it includes the Affidavit for Attorney Fees and the
Order for Attorney Fees which should instead have been filed as
exhibits to the record on appeal.
In his attempts to settle and file the record on appeal in
this case defendant has failed to comply with the requirements of
Rule 11 of the North Carolina Rules of Appellate Procedure and has
not complied with an order of this Court.
See State v. Wooten, 6
N.C. App. 628, 170 S.E.2d 508 (1969) (dismissing appeal for failure
to comply with the rules and orders of this Court);
McLeod v.
Faust, 92 N.C. App. 370, 374 S.E.2d 417 (1988) (dismissing appeal
for failure to file a properly settled record on appeal).
Appeal dismissed.
Judge HUNTER and Judge HUDSON concur.
Footnote: 1