NO. COA06-1453
Appeal by defendant from order entered 6 February 2006 by
Judge Alonzo B. Coleman in Orange County District Court. Heard in
the Court of Appeals 30 April 2007.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene, for
plaintiff-appellee.
Donna Ambler Davis, for defendant-appellant.
LEVINSON, Judge.
Terry Edward Adams (defendant) appeals from an order of the
district court granting plaintiff's motion to dismiss his appeal
from an equitable distribution order pursuant to N.C.R. App. P.
25(a). Because no right of appeal lies from the order at issue, we
dismiss.
The record before this Court reflects that Betsy Lunn Sleath
(plaintiff) and defendant separated on or about 14 August 2003,
after fourteen years of marriage. Plaintiff filed a complaint for
child custody, child support, interim and equitable distribution,
and attorney's fees on 27 August 2003. On 27 October 2003, thedistrict court ordered an interim distribution of marital property.
Plaintiff later amended her complaint to add a claim for absolute
divorce; and the district court entered a judgment of divorce on 20
September 2004.
On 12 August 2005, the district court entered its equitable
distribution order. Defendant filed notice of appeal from the
equitable distribution order on 9 September 2005.
_________________
On 20 October 2005, plaintiff moved to dismiss defendant's
appeal pursuant to N.C.R. App. P. 25(a), based on his failure to
serve his proposed record on appeal in a timely manner under N.C.R.
App. P. 11. In an order entered 6 February 2006, the district
court found,
inter alia, that “[d]efendant did not order the
transcripts within the meaning of Rule 7 of the Rules of Appellate
Procedure[,]” inasmuch as he (1) failed to file and serve a written
notice of his request for the transcripts, and (2) “ordered fewer
than all of the transcripts of the equitable distribution
proceedings” without filing and serving a statement of the issues
he intended to raise on appeal.
See N.C.R. App. P. 7(a)(1).
Because defendant did not order a transcript, the court further
found he was required by Rule 11(a) to serve his proposed record on
appeal on or before 14 October 2005, within thirty-five days of his
notice of appeal. Accordingly, based on defendant's service of the
proposed record on 28 October 2005, fourteen days after the
applicable deadline, the court dismissed his appeal for lack ofsubstantial compliance with Rules 7 and 11. Defendant filed timely
notice of appeal from the dismissal order.
On appeal, defendant challenges the district court's finding
that he ordered fewer than all the transcripts of the equitable
distribution proceedings, and its resulting conclusion that his
service of the proposed record was untimely. We do not reach the
merits of these arguments, however, because we hold that
defendant's appeal is not properly before this Court.
“No appeal lies from an order of the trial court dismissing an
appeal for failure to perfect it within apt time, the proper remedy
to obtain review in such case being by petition for writ of
certiorari.”
State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d
766, 767 (1980) (citations omitted). Here, defendant appeals from
an order dismissing his appeal for lack of timely service of the
record on appeal. He has not sought review of the equitable
distribution order by writ of certiorari pursuant to N.C.R. App. P.
21(a). His appeal is hereby dismissed.
Dismissed.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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