Plaintiff’s notice of appeal was untimely and deficient under the Rules of Appellate Procedure and his arguments were without merit. Dismissed in part; affirmed in part.
Plaintiff and Defendant entered into a consent order in 2014 in which Plaintiff was granted full legal custody and primary physical custody of the child and Defendant was awarded visitation. Plaintiff filed a motion in June 2018 requesting in part, emergency custody alleging the child was in danger of serious and immediate injury. After a hearing on 12 July 2018, the Court entered a Memorandum of Consent Order in which Plaintiff dismissed his 2018 Motion with prejudice and acknowledged there was no basis for his claims and the minor child was not in danger. The terms of the memorandum order were handwritten and specifically provided that a formal judgment/order reflecting the same terms would be prepared and signed by the presiding judge out of session. In addition, the parties stipulated that with the signing of the Memorandum by the presiding judge, it shall become a judgment/order of the court pursuant to Rule 58 of the North Carolina Rules of Civil Procedure on the date filed with the Clerk.
On 10 August 2018, Plaintiff filed a Notice of Appeal from the memorandum order. On 16 August 2018, the Court entered two orders: (1) a formal version identical to the handwritten memorandum order (“the formal order”); and (2) and order concerning child custody jurisdiction (“the jurisdictional order”).
First, the Court concluded that it did not have authority to entertain an appeal of a case which lacked entry of judgment because Plaintiff’s Notice of Appeal was entered six days prior to the entry of both the formal order and the jurisdictional order.
In considering Plaintiff’s second argument that trial court “manipulated the title” of the formal order (entitled “Consent Order”), the Court found that Plaintiff consented under oath to the entry of the memorandum, the trial court acted in accordance with the authority granted under Rule 58, and Plaintiff’s argument was without merit.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2019-11-05 17:01:552019-11-05 17:05:43Richard Lee Bender v. Alisha Hornback - Timing of Notice of Appeal