Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
TIMOTHY B. MCKYER, Plaintiff, v. FONTELLA D. MCKYER, Defendant
Filed: 3 April 2007
1. Civil Procedure_Rule 60 motion_denial_no abuse of discretion
The trial court did not abuse its discretion by denying plaintiff's Rule 60 motion for relief
in an action arising from multiple appeals in an action for divorce, child support, and child
custody. The trial court's findings were supported by competent evidence. Plaintiff did not
show that the order was manifestly unsupported by reason.
2. Child Support, Custody, and Visitation_parental coordinator_appointment of_no
An assignment of error to the appointment of a parent coordinator was overruled where
the transcripts of the proceeding were incomplete, the trial court's findings were presumed to be
supported by competent evidence, and the trial court's findings demonstrate that it complied with
N.C.G.S. § 50-94.
Appeal by plaintiff from orders entered 9 February 2006 by
Judge Jane V. Harper in Mecklenburg County District Court. Heard
in the Court of Appeals 7 March 2007.
Marnite Shuford, for plaintiff-appellant.
Billie R. Ellerbe, for defendant-appellee.
Timothy B. McKyer (plaintiff) appeals from orders denying
his motion for relief from judgment pursuant to N.C. Gen. Stat. §
1A-1, Rule 60(b) and granting Fontella D. McKyer's (defendant)
motion to appoint a parent coordinator. We affirm.
This is the fourth appeal to this Court regarding the parties'
divorce, child support, and custody battle over their two sons.
See McKyer v. McKyer, 152 N.C. App. 477, 567 S.E.2d 840 (2002)(Unpublished), disc. rev. denied, 356 N.C. 438, 572 S.E.2d 785
(2002); McKyer v. McKyer, 159 N.C. App. 466, 583 S.E.2d 427 (2003)
(Unpublished), disc. rev. denied, 358 N.C. 235, 593 S.E.2d 781
(2004); McKyer v. McKyer, 179 N.C. App. 132, 632 S.E.2d 828 (2006).
After hearings held on 15 March 2004, 16 March 2004, and 6
April 2004, the trial court entered three separate orders on 2
August 2004: (1) an equitable distribution order; (2) a child
custody order; and (3) a temporary child support order. On 23
August 2004, plaintiff noticed appeal of the equitable distribution
and child custody orders.
On 15 December 2004, defendant moved to dismiss plaintiff's
appeal due to his failure to settle the record on appeal pursuant
to Rule 11 and Rule 12 of the North Carolina Rules of Appellate
Procedure. Defendant alleged plaintiff's failure to settle the
record on appeal violated Rule 25(a) of the North Carolina Rules of
Appellate Procedure and required dismissal.
On 30 December 2004, plaintiff filed a Motion for Extension
of Time To Settle Record on Appeal with this Court. This Court
denied plaintiff's motion by order entered 5 January 2005.
After a hearing on 13 January 2005, the trial court entered a
permanent child support order on 25 January 2005. On 14 February
2005, the trial court entered another child support order regarding
plaintiff's claim for past due child support.
On 23 February 2005, plaintiff noticed a purported appeal of
the trial court's equitable distribution and child custody orders
and the 25 January 2005 child support order. Plaintiff argued thisnotice of appeal of the equitable distribution and child custody
orders entered 2 August 2004 was proper because final judgment had
been entered on all claims tried on 15 March 2004, 16 March 2004,
and 6 April 2004.
On 16 March 2005, defendant moved to dismiss plaintiff's
appeal regarding the equitable distribution and child custody
orders entered 2 August 2004. Defendant alleged that: (1) at the
time plaintiff filed his 23 February 2005 notice of appeal, her 15
December 2004 motion to dismiss his 23 August 2004 notice of appeal
was still pending before the trial court; (2) plaintiff abandoned
the 23 August 2004 notice of appeal by failing to defend
defendant's motion to dismiss and by filing a new notice of appeal;
and (3) plaintiff's appeals should be dismissed for failure to
comply with Rule 11 and Rule 12 of the North Carolina Rules of
On 31 March 2005, plaintiff filed with the trial court a
Notice of Withdrawal of Notices of Appeal Without Prejudice on
Interlocutory Orders purporting to withdraw his notices of appeal
filed 23 August 2004. Plaintiff asserted: (1) the 2 August 2004
custody and equitable distribution orders were interlocutory and
(2) the notices of appeal entered 23 August 2004 regarding these
orders were withdrawn, without prejudice.
On 5 April 2005, plaintiff also filed with the trial court a
Voluntary Dismissal Without Prejudice of Notices of Appeal of
Interlocutory Orders. Plaintiff asserted the 2 August 2004
custody and equitable distribution orders were interlocutory andthe notices of appeal filed 23 August 2004 were voluntarily
On 26 April 2005, the trial court entered an order that found:
(1) plaintiff failed to settle the record on appeal as required by
Rule 11 and Rule 12 of the North Carolina Rules of Appellate
Procedure; (2) plaintiff violated Rule 25(a) of the North Carolina
Rules of Appellate Procedure after noticing appeal on 23 August
2004; (3) plaintiff abandoned the notices of appeal filed 23 August
2004 by attempting to file new notices of appeal on 23 February
2005; and (4) the 23 February 2005 notices of appeal filed on the
2 August 2004 child custody and equitable distribution orders were
filed untimely. The trial court granted defendant's 15 December
2004 motion to dismiss plaintiff's notices of appeal filed 23
August 2004 and granted defendant's 16 March 2005 motion to dismiss
plaintiff's notices of appeal filed 23 February 2005. On 5 July
2005, the trial court also ordered plaintiff, pursuant to Rule 35
and Rule 36 of the North Carolina Rules of Appellate Procedure, to
pay defense counsel's reasonable attorney's fees as costs in the
amount of $3,700.00.
On 31 August 2005, plaintiff filed a Petition for Writ of
Certiorari with this Court. Plaintiff sought to have the trial
court's 26 April 2005 and 5 July 2005 orders reviewed by this
Court. On 16 September 2005, this Court denied plaintiff's motion.
On 20 October 2005, plaintiff filed with the trial court a
Motion in the Cause, pursuant to N.C. Gen. Stat. § 1A-1, Rule
60(b)(5) and (6), to vacate the trial court's 26 April 2005 orderto dismiss his notices of appeal in the child custody and equitable
distribution cases. Plaintiff also moved to vacate the trial
court's 5 July 2005 order that awarded defendant her attorney's
fees as costs. On 10 November 2005, defendant filed a Motion to
Appoint a Parent Coordinator.
On 9 February 2006, the trial court entered two orders denying
plaintiff relief under Rule 60(b) and appointing a parent
coordinator. From these orders, plaintiff properly appeals.
Plaintiff argues the trial court erred by: (1) denying his
motion for Rule 60(b) relief and (2) granting defendant's motion
to appoint a parent coordinator.
III. Standard of Review
Our standard to review the trial court's ruling on a Rule
60(b) motion is well settled. [A] motion for relief under Rule
60(b) is addressed to the sound discretion of the trial court and
appellate review is limited to determining whether the court abused
its discretion. Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d
532, 541 (1975). [A] trial judge's extensive power to afford
relief [under Rule 60(b)] is accompanied by a corresponding
discretion to deny it, and the only question for our determination
. . . is whether the court abused its discretion in denying
defendant's motion. Sawyer v. Goodman, 63 N.C. App. 191, 193, 303
S.E.2d 632, 633-34, disc. rev. denied, 309 N.C. 823, 310 S.E.2d 352
(1983). A judge is subject to reversal for abuse of discretion
only upon a showing by a litigant that the challenged actions aremanifestly unsupported by reason. Clark v. Clark, 301 N.C. 123,
129, 271 S.E.2d 58, 63 (1980) (citation omitted).
Findings of fact made by the trial court upon a motion to set
aside a judgment by default are binding on appeal if supported by
any competent evidence. Kirby v. Asheville Contracting Co., 11
N.C. App. 128, 132, 180 S.E.2d 407, 410, cert. denied, 278 N.C.
701, 181 S.E.2d 602 (1971). We review conclusions of law made by
the trial court de novo on appeal. Moore v. Deal, 239 N.C. 224,
228, 79 S.E.2d 507, 510 (1954); Starco, Inc. v. AMG Bonding and
Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
IV. Rule 60(b) Motion
 Plaintiff argues the trial court erred as a matter of law
and abused its discretion when it entered orders on 26 April 2005
and 5 July 2005 because: (1) he timely filed his notices of appeal
on 23 February 2005; (2) dismissing his appeal violated the Fifth
and Fourteenth Amendments that protect the relationship between a
parent and a child; and (3) awarding attorney's fees as cost
pursuant to Rule 35 and Rule 36 of the North Carolina Rules of
Appellate Procedure is contrary to North Carolina law. We
This Court has stated:
It is settled law that erroneous judgments may
be corrected only by appeal, Young v.
Insurance Co., 267 N.C. 339, 343, 148 S.E.2d
226, 229 (1966) and that a motion under G.S.
1A-1, Rule 60(b) of the Rules of Civil
Procedure cannot be used as a substitute for
appellate review. O'Neill v. Bank, 40 N.C.
App. 227, 231, 252 S.E.2d 231, 234 (1979); see
also In re Snipes, 45 N.C. App. 79, 81, 262S.E.2d 292, 294 (1980); 2 McIntosh, N.C.
Practice and Procedure § 1720 (Supp. 1970).
Town of Sylva v. Gibson, 51 N.C. App. 545, 548, 277 S.E.2d 115,
117, disc. rev. denied, 303 N.C. 319, 281 S.E.2d 659 (1981).
Plaintiff did not properly appeal from the trial court's 26
April 2005 and 5 July 2005 orders. His failure to appeal bars any
review of the merits of those orders. See Lang v. Lang, 108 N.C.
App. 440, 452-53, 424 S.E.2d 190, 196-97 (The defendant's failure
to perfect appeal of a judgment barred discussion of the merits of
the judgment.), disc. rev. denied, 333 N.C. 575, 429 S.E.2d 570
(1993). The issue of whether the trial court's award of attorney's
fees to defendant as cost is not properly before us. These
assignments of error are dismissed.
Plaintiff moved pursuant to Rule 60(b)(5) and (6) to vacate
the trial court's 26 April 2005 and 5 July 2005 orders. N.C. Gen.
Stat. § 1A-1, Rule 60(b)(5) and (6) (2005) states:
(b) On motion and upon such terms as are just,
the court may relieve a party or his legal
representative from a final judgment, order,
or proceeding for the following reasons:
(5) [I]t is no longer equitable that the
judgment should have prospective application;
(6) Any other reason justifying relief from
the operation of the judgment.
In one of the orders entered 9 February 2006, the trial court
7. That the Plaintiff's Motion alleges that
his failure to perfect the appeals covered by
the dismissal order was cured when the record
on appeal from the Child Custody Order and
Equitable Distribution Order entered by JudgeTin on August 2nd, 2004 were included by the
Plaintiff in his record on appeal of the
Court's January 25th, 2005 Child Support Order
currently pending before the North Carolina
Court of Appeals.
8. That the Plaintiff's Motion seeks relief
based on the filing of a record on appeal in a
companion child support case which would also
apply to the Equitable Distribution and Child
Custody Orders entered by the Court on August
2nd, 2004, if he was allowed to proceed with
9. That the cases cited by the Plaintiff,
Poston v. Morgan, 83 N.C. App. 295, 350 S.E.2d
108 (1986); Condellone v. Condellone, 137 N.C.
App. 547, 528 S.E.2d 639 (2000); and City of
Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d
457 (1998) in support of his Motion for Rule
60(b)(5) and (6) are distinguishable from the
case at bar because the cases cited sought to
address situations that had not been fully
adjudicated by the Court either through
Attorney neglect or other extra-ordinary
10. That the Plaintiff in this case has had
all claims fully adjudicated by the Trial
Court in this matter and there clearly has
been no neglect on behalf of Counsel for
11. That the Plaintiff's Motion presents no
grounds on which the Court can conclude that
it is no longer equitable for the April 26th,
2005 Order dismissing the Plaintiff's Appeals
filed on November 23rd, 2004 and February
23rd, 2005 to have prospective application.
12. That the Plaintiff's Motion presents no
grounds demonstrating any other reason
justifying relief from [April] 26th, 2005
Order Dismissing the Plaintiff's Appeals or
the July [5th], 2005 Order granting the
Defendant's Motion for Attorney Fees in the
amount of thirty-seven hundred ($3,700.00)
The trial court concluded as a matter of law: 1. That the Court has jurisdiction over the
persons and subject matter of this action.
2. That the Plaintiff is not entitled to the
relief pursuant to Rule 60(b)(5) and (6).
The trial court decreed, That the Plaintiff's Motion for Relief
pursuant to Rule 60(b)(5) and (6) of the North Carolina Rules of
Civil Procedure is hereby Denied.
The test for whether a judgment, order or proceeding should
be modified or set aside under Rule 60(b)(6) is two pronged: (1)
extraordinary circumstances must exist, and (2) there must be a
showing that justice demands that relief be granted. Howell v.
Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987). This Court
When reviewing a trial court's equitable
discretion under Rule 60(b)(6), our Supreme
Court has indicated that this Court cannot
substitute what it considers to be its own
better judgment for a discretionary ruling of
a trial court, and that this Court should not
disturb a discretionary ruling unless it
probably amounted to a substantial miscarriage
Surles v. Surles, 154 N.C. App. 170, 173, 571 S.E.2d 676, 678
(2002) (internal citations and quotations omitted).
The trial court's findings of fact are supported by competent
evidence in the record and are binding on appeal. Kirby, 11 N.C.
App. at 132, 180 S.E.2d at 410. Plaintiff has failed to show the
trial court the order is manifestly unsupported by reason or
otherwise abused its discretion in entering its order. Clark, 301
N.C. at 129, 271 S.E.2d at 63. Plaintiff failed to show the trial
court's 9 February 2006 order denying plaintiff's motions for Rule60 relief contains no errors of law. Plaintiff also failed to show
the trial court's reference in its 9 February 2006 order to its
prior award of attorney's fees as cost was an abuse of discretion.
The trial court's order denying plaintiff's motion for Rule 60(b)
relief is affirmed.
V. Parent Coordinator
 Plaintiff argues the trial court erred in appointing a
parent coordinator. He asserts the trial court failed to conduct
an appointment conference prior to the entry of the appointment
order on 9 February 2006. We disagree.
N.C. Gen. Stat. § 50-94 (2005) states, in part:
(b) At the time of the appointment conference,
the court shall do all of the following:
(1) Explain to the parties the parenting
coordinator's role, authority, and
responsibilities as specified in the
appointment order and any agreement entered
into by the parties.
(2) Determine the information each party must
provide to the parenting coordinator.
(3) Determine financial arrangements for the
parenting coordinator's fee to be paid by each
party and authorize the parenting coordinator
to charge any party separately for individual
contacts made necessary by that party's
(4) Inform the parties, their attorneys, and
the parenting coordinator of the rules
regarding communications among them and with
(5) Enter the appointment order.
On 10 November 2005, defendant filed a Motion to Appoint a
Parent Coordinator. Plaintiff filed no response to this motion. On 28 November 2005, a hearing was held on the motion and plaintiff
opposed the appointment of a parent coordinator.
The transcripts of this proceeding filed with this Court are
incomplete. The trial court heard defendant's motion to appoint a
parent coordinator beginning on page twenty-five of the transcript.
The transcript ends inexplicably on page twenty-seven during the
middle of the hearing.
It is the appellant's duty and responsibility to see that the
record is in proper form and complete. State v. Alston, 307 N.C.
321, 341, 298 S.E.2d 631, 644-45 (1983). An appellate court is
not required to, and should not, assume error by the trial judge
when none appears on the record before the appellate court. State
v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968). Here,
the trial court conducted a hearing on 28 November 2005 before
entering the appointment order on 9 February 2006. Due to
plaintiff's failure to provide a complete transcript with the
record on appeal, we cannot determine whether the trial court
violated N.C. Gen. Stat. § 50-94.
Additionally, when an appellant fail[s] to include a
narration of the evidence or a transcript with the record, we
presume the findings at bar are supported by competent evidence.
Davis v. Durham Mental Health, 165 N.C. App. 100, 112, 598 S.E.2d
237, 245 (2004). Due to plaintiff's failure to include a complete
transcript of the testimony before the trial court in the record on
appeal, all findings are presumed to be supported by competent
evidence. Id. Here, the trial court's findings demonstrate itcomplied with N.C. Gen. Stat. § 50-94. This assignment of error is
Plaintiff's appeals from the trial court's 26 April 2005 and
5 July 2005 orders are not properly before us. Plaintiff failed to
show the trial court abused its discretion in denying his motion
for Rule 60(b) relief. Plaintiff failed to include a complete
transcript of the hearing on defendant's motion to appoint a parent
coordinator in the record on appeal. Based upon the trial court's
findings of fact being presumptively supported by competent
evidence, the trial court did not err by appointing a parent
coordinator. The trial court's orders are affirmed.
Judges ELMORE and GEER concur.
*** Converted from WordPerfect ***