Appeal by defendant from an order entered 19 January 2005 by
Judge Kevin G. Eddinger in Rowan County District Court. Heard in
the Court of Appeals 27 March 2006.
Horack, Talley, Pharr & Lowndes, PA, by Kary C. Watson and
Thomas R. Cannon, for plaintiff-appellee.
Robert L. Inge for defendant-appellant.
BRYANT, Judge.
Lorrie Ann Shue (defendant) appeals from a 19 January 2005
order reducing the amount of Christopher M. Shue's (plaintiff's)
child support from $908.00 per month to $516.00 per month.
Plaintiff and defendant were married on 14 February 1987 and
separated on 2 November 1997. The parties were subsequently
divorced and on 11 December 2001 entered into a Memorandum of
Judgment/Order which provided plaintiff's child support obligation
would be $908.00 per month beginning 6 September 2001. On 25 March
2002 a formal child support order was entered reflecting the terms
of the Memorandum. At the time plaintiff entered into the
Memorandum of Judgment, he was employed as Director of Operations
with Pace Airlines (“Pace”) in Winston-Salem, North Carolina foralmost three years and earned $79,500.00 annually. Following the
events of 11 September 2001, Pace experienced financial and
personnel problems. During this time, Pace borrowed money from its
parent company to make their biweekly payroll and laid-off
approximately eighteen employees. As Pace's Operations Manager,
plaintiff was aware of the company's financial problems and began
looking for other employment. Because of the unstable conditions
of the passenger airline industry, plaintiff took a job at DHL
Airways (“DHL”), a cargo carrier. DHL was not suffering the same
financial uncertainty as Pace. Plaintiff was offered a job with
DHL in 2004 and met with the Vice President of Pace's Operations to
discuss the company's future. Based on the information learned at
that meeting, as well as concern he would lose his job with little
or no notice, plaintiff accepted the position with DHL. Due to
labor contracts, plaintiff started at a lower level position than
that of Operations Manager. At the time of the hearing, he was
employed as a flight engineer and earned $34,000.00 annually.
On 11 December 2001, a child support order was entered by
consent which obligated plaintiff to pay the sum of $908.00 per
month for T.A. On 26 April 2004, plaintiff filed a motion
requesting a modification of his child support obligation, among
other things. On 29 June 2004, the trial court entered an order
for visitation leaving the issue of plaintiff's motion for
modification of child support open for the submission of briefs.
On 19 January 2005, the trial court entered an order reducingplaintiff's child support obligation from $908.00 per month to
$516.00 per month. Defendant appeals.
___________________________
On appeal defendant argues the trial court erred in: (I)
making finding of fact thirty-four because it was unsupported by
the evidence; (II) conclusion of law number five because it was
unsupported by the evidence; and (III) basing plaintiff's child
support on current earnings rather than imputed earnings.
Meanwhile, plaintiff moves this Court to dismiss this appeal based
on various violations of our North Carolina Rules of Appellate
Procedure. For the reasons stated below, we dismiss defendant's
appeal.
We note several violations of the N.C. Rules of Appellate
Procedure in defendant's brief. In her first two arguments
(assignments of error four and six), defendant does not cite to any
legal authority and we therefore deem them abandoned. N.C. R. App.
P. 28(b)(6) (“The body of the argument and the statement of
applicable standard(s) of review
shall contain citations of the
authorities upon which the appellant relies.”) (emphasis added);
State v. Augustine, 359 N.C. 709, 738, 616 S.E.2d 515, 535 (2005);
see also State v. Walters, 357 N.C. 68, 85, 588 S.E.2d 344, 355
(2003),
cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003) (A
party's assignment of error is deemed abandoned in the absence of
citation to supporting authority.). In addition, because defendant
brings forth no argument in her brief, we deem abandoned
assignments of error one, two, three, five, seven and eight as“[a]ssignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.” N.C. R. App. P. 28(b)(6).
In defendant's remaining assignment of error, she fails to
state a legal basis for each assignment in violation of N.C. R.
App. P. 10(c)(1). Rule 10(c) of the North Carolina Rules of
Appellate Procedure states in relevant part:
Form; Record references. . . . Each assignment
of error shall, so far as practicable, be
confined to a single issue of law; and shall
state plainly, concisely and without
argumentation the legal basis upon which error
is assigned. An assignment of error is
sufficient if it directs the attention of the
appellate court to the particular error about
which the question is made, with clear and
specific record or transcript references[.]
N.C. R. App. P. Rule 10(c)(1);
Broderick v. Broderick, ___ N.C.
___, ___, 623 S.E.2d 806, ___ (2006);
see, e.g., Dep't of Transp.
v. Rowe, 353 N.C. 671, 674, 549 S.E.2d 203, 207 (2001) (alleged
error “not properly presented” to this Court where plaintiff failed
to comply with “Rule 10(c) of the North Carolina Rules of Appellate
Procedure [which] requires that an appellant state the legal basis
for all assignments of error”),
cert. denied, 534 U.S. 1130, 151 L.
Ed. 2d 972 (2002). The purpose of an assignment of error “is to
state . . . what legal error is complained of and why.”
Duke v.
Hill, 68 N.C. App. 261, 264, 314 S.E.2d 586, 588 (1984).
In this case, defendant's final assignment of error states:
9. The trial court committed reversible
error in basing the Plaintiff's child support
on current earnings. (Rp 30)
This assignment of error is insufficiently stated to be properly
preserved for appellate review. Here, defendant fails to state the
legal grounds upon which the trial court allegedly erred in basing
plaintiff's child support obligation on his current earnings.
Rogers v. Colpitts, 129 N.C. App. 421, 423, 499 S.E.2d 789, 790
(1998) (“Because our scope of review is confined to properly
presented assignments of error, defendant's appeal is dismissed.”).
In addition, defendants' brief does not contain the “statement
of the grounds for appellate review” required by Rule 28(b)(4), nor
does it contain any “citation [to] the statute or statutes
permitting appellate review.” N.C. R. App. P. 28(b)(4). “The
North Carolina Rules of Appellate Procedure are mandatory and
'failure to follow these rules will subject an appeal to
dismissal.'”
Viar v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005) (quoting
Steingress v. Steingress, 350 N.C.
64, 65, 511 S.E.2d 298, 299 (1999)). We therefore grant
plaintiff's motion to dismiss for these multiple rules violations.
Dismissed.
Chief Judge MARTIN and Judge HUDSON concur.
Report per Rule 30(e).
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