LINDA HORNE MINTZ
JACKIE WAYNE MINTZ
No brief filed for plaintiff-appellee.
Nora Henry Hargrove, for defendant-appellant.
Timely notice of appeal is a jurisdictional prerequisite for this Court to review the merits of an appeal. (See footnote 1) Here, the defendant's notice of appeal is not timely according to the date that is file-stamped on the judgment being appealed. Seeing nothing in the record before us that would suggest we should use an alternate date for the entry of judgment, we dismiss the defendant's appeal as untimely.
Plaintiff Linda Horne Mintz and Defendant Jackie Wayne Mintz were married in 1971 and separated in 2003. On 5 March 2004, Ms.Mintz brought an action against Mr. Mintz for post-separation support, attorney's fees, equitable distribution, injunctive relief barring the transfer of ownership of marital assets, a partial distribution of marital property, divorce from bed and board, and alimony.
After Mr. Mintz answered and moved to dismiss the action, the trial court heard the matter on 22 November 2005 and entered an equitable distribution judgment in open court that day, later signed nunc pro tunc 22 June 2006. The trial court concluded that there should be an equal division of marital property and that such a division would be presumed equitable as a matter of law. Ms. Mintz was found to be a dependent spouse, and, as the supporting spouse, Mr. Mintz was directed to pay Ms. Mintz four hundred twenty dollars each month in alimony for eighteen months, and to provide her health and dental insurance for six months. Mr. Mintz was further directed to pay Ms. Mintz a distributive award of $73,234.20. The judgment also divided a number of other pieces of real and personal property between the Mintzes.
Mr. Mintz appeals that judgment, arguing that the trial court (I) erred in valuing the personal property of the parties and that the findings are not supported by the evidence; (II) failed to value Mr. Mintz's sweat equity in the marital home; and (III) erred when valuing specific property and awarding it to Mr. Mintz.
At the outset, we note that a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. N.C. Gen. Stat. § 1A-1, Rule 58 (2005). Additionally,under our Rules of Appellate Procedure, a party must file its written notice of appeal with the clerk of court within thirty days after a judgment has been entered. See N.C. R. App. P. 3. Under longstanding precedent in North Carolina, [f]ailure to give timely notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed. Booth v. Utica Mut. Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) (per curiam).
In the instant case, the Notice of Appeal filed by Mr. Mintz states that the trial court's judgment was signed on June 22, 2006 and entered and served on July 8, 2006. Nevertheless, the trial court's judgment states that it was Entered in open Court this 22nd day of November, 2005. Signed nunc pro tunc the 22[nd] day of June, 2006. Significantly, the judgment is file-stamped with the date 22 June 2006, and nothing in the record before us contains the 8 July 2006 date asserted by Mr. Mintz, except for his statement that his Notice of Appeal dated 7 August 2006 was timely from the judgment he claims was entered and served on 8 July 2006.
Thus, under the Rules of Civil Procedure, the record shows that the judgment was entered 22 June 2006, such that Mr. Mintz's Notice of Appeal filed on 7 August 2006 was well after the thirty- day statutory period had passed. This discrepancy between the date the judgment was actually entered and the date claimed by Mr. Mintz is particularly troubling given that Ms. Mintz has not filed a brief in this matter and has been acting pro se since her attorney withdrew as counsel in October 2006.
Even assuming arguendo that Mr. Mintz's appeal was timely, weobserve that his arguments to this Court are without merit. In each of his assignments of error, Mr. Mintz essentially asks this Court to reweigh the evidence and testimony presented at the equitable distribution trial and find in his favor rather than in that of his ex-wife. We would decline to do so, emphasizing again that [t]his Court is not here to second-guess values of marital and separate property where there is evidence to support the trial court's figures. Mishler v. Mishler, 90 N.C. App. 72, 74, 367 S.E.2d 385, 386, disc. review denied, 323 N.C. 174, 373 S.E.2d 111 (1988). Were we to reach the merits of Mr. Mintz's appeal, we would not disturb a trial court's exercise of discretion in distributing marital property absent a showing of clear abuse or a decision that was not based on reason. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). We see none here.
Judges HUNTER and JACKSON concur.
Report by Rule 30(e).
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