Slaughter v. Slaughter , 254 N.C. App. 430 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1153
Filed: 18 July 2017
New Hanover County, No. 13 CVD 1301
MARTIN T. SLAUGHTER, Plaintiff
v.
NICOLE B. SLAUGHTER, Defendant
Appeal by plaintiff and defendant from orders entered 31 March 2016 and 1
April 2016, and by plaintiff from order entered 29 September 2016, by Judge Lillian
B. Jordan in New Hanover County District Court. Heard in the Court of Appeals 3
May 2017.
Pennington & Smith, P.L.L.C., by Ralph S. Pennington, for plaintiff-appellant.
Ward and Smith, P.A., by John M. Martin, for defendant-appellee/cross-
appellant.
CALABRIA, Judge.
Where competent evidence supported the trial court’s findings of fact in its
equitable distribution and alimony orders, and those findings in turn supported its
conclusions of law, the trial court did not err in its findings and conclusions. Where
affidavits on attorney’s fees were admitted into evidence without objection, and the
trial court made explicit findings regarding trial counsel’s experience and the
reasonableness of his fees, the trial court did not abuse its discretion in awarding
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attorney’s fees. However, where there was no evidence that an expert witness was a
court-appointed expert, the trial court erred in awarding expert witness costs for any
expense other than the expert’s testimony. Where wife raised issues on cross-appeal
that were not raised on appeal, and did so outside of the 30-day window for appeals
but within the 10-day window for cross-appeals, the trial court erred in denying
defendant’s motion to dismiss her appeal with respect to the child support order. We
affirm in part, remand in part, reverse in part, and dismiss in part.
I. Factual and Procedural Background
Martin T. Slaughter (“husband”) and Nicole B. Slaughter (“wife”) were married
on 21 September, 1996. Two children were born to the marriage. The parties
separated on 18 May 2012, and husband filed a complaint on 1 April 2013, seeking
child custody, child support, equitable distribution, and an interim distribution. He
also filed a stipulation of marital misconduct. On 5 June 2013, wife filed an answer
and counterclaim, seeking child custody, child support, equitable distribution, post-
separation support and alimony, attorney’s fees, and an interim distribution.
On 8 October 2012, a temporary consent order on custody and release of records
was entered. This order provided that husband would release his mental health
records, and that subject to his compliance in releasing those records, the parties
would be awarded joint custody of the children, with wife having primary physical
custody and husband having visitation.
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On 26 June 2014, husband voluntarily dismissed his second and third claims
(child support and equitable distribution) without prejudice. On 5 August 2014,
husband moved for partial summary judgment with respect to the classification of
shares owned by husband and wife in Winner Enterprises of Carolina Beach, LLC
(“Winner”). Husband’s motion alleged that his shares should be classified as his
separate property, and wife’s shares as her separate property.
On 17 September 2014, the trial court entered an order on permanent custody.
In this order, the trial court concluded that joint custody was in the children’s best
interest, and ordered that (1) the parties share joint legal custody; and (2) the parties
share joint physical custody, with a schedule set out in the order.
On 4 February 2015, wife moved that the court appoint an expert to value
Winner, and by extension value the shares of husband and wife in the company, as
well as Baker & Slaughter, P.A., a law firm in which husband had an interest. On
26 March 2015, wife filed a motion requesting, if the North Carolina Child Support
Guidelines were applicable to the instant case, that the trial court deviate from the
guidelines.
On 31 March 2015, the trial court entered an order addressing multiple issues.
First, the order required husband to pay wife an immediate interim distribution of
$60,000. Second, husband was to be solely responsible for the children’s school
tuition. The trial court also set dates for mediation and trial, and appointed an expert
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to value Winner. This expert was also to value husband’s interest in Baker &
Slaughter, P.A.
On 19 June 2015, the parties agreed to several stipulations. First, they
stipulated that their respective shares of Winner were separate property. They then
stipulated to several facts about the value and date of acquisition of their shares of
Winner.
On 8 October 2015, the trial court entered an order appointing an expert to
value all real property owned by the parties, including real property owned by
Winner. On 31 March 2016, the trial court entered its order on equitable distribution
(“the ED order”). The trial court concluded that an unequal division of marital and
divisible property in favor of wife was equitable, and that a division of 60%/40% in
wife’s favor was appropriate. The trial court then ordered (1) that separate property
be distributed; (2) that husband deed a certain piece of real property to wife; (3) that
wife deed a certain piece of real property to husband; and (4) that husband pay wife
a distributive award of $494,772.
On 1 April 2016, the trial court entered its order on child support (“the child
support order”). The trial court concluded that wife was entitled to child support from
husband, and that the North Carolina Child Support Guidelines were applicable to
the case. The trial court then ordered husband to pay $1,700 in monthly child
support, to terminate when the younger child reached majority, plus medical and
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dental health coverage and all premiums, plus all of the children’s unreimbursed
health care costs. Husband was also ordered to pay all summer camp expenses.
Husband was entitled to claim one child as a dependent for tax purposes, and wife
was entitled to claim the other child.
On 1 April 2016, the trial court also entered its order on alimony (“the alimony
order”). The trial court concluded that wife was a dependent spouse and husband
was a supporting spouse, that wife was entitled to alimony, that husband had
engaged in infidelity prior to separation, that husband had the means and ability to
pay alimony, and that wife, as a dependent spouse, was also entitled to an award of
a portion of her attorney’s fees. The trial court then ordered husband to pay $2,786
in monthly alimony payments, to terminate in 2024. Husband was also ordered to
pay wife’s attorney’s fees in the amount of $50,000, minus a $30,000 stipulated credit,
for a total of $20,000.
On 25 April 2016, husband filed notice of appeal from the ED order and the
alimony order. On 3 May 2016, wife filed notice of cross-appeal from the ED order
and the child support order.
On 10 June 2016, husband filed a motion to dismiss wife’s cross-appeal of the
child support order, on the grounds that (1) wife’s cross-appeal of the child support
order was filed more than 30 days after entry of that order, and (2) North Carolina
Rule of Appellate Procedure 3(c), which permits a cross-appellant to file a cross-
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appeal within 10 days of receiving notice of appeal, should not apply here, because
husband did not appeal the child support order. On 29 September 2016, the trial
court denied this motion. On 3 October 2016, husband appealed this order as well.
II. Findings of Fact and Conclusions of Law
In numerous arguments, husband contends that the trial court erred in failing
to make certain findings of fact and conclusions of law, and in making erroneous
findings of fact. We disagree.
A. Standard of Review
“The standard of review on appeal from a judgment entered after a non-jury
trial is ‘whether there is competent evidence to support the trial court’s findings of
fact and whether the findings support the conclusions of law and ensuing judgment.’
” Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (quoting Sessler v.
Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001)), disc. review denied, 356
N.C. 434, 572 S.E.2d 428 (2002).
B. Analysis
Husband challenges numerous findings of fact in the ED order and alimony
order. We address husband’s arguments with respect to each order in turn.
1. ED Order
Husband contends that, in the ED order, the trial court failed to make proper
findings of fact and conclusions of law as to the value of husband’s law practices; as
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to the value of an adjustment in value based on attorney compensation; as to North
Carolina Rule of Evidence 414, governing the admissibility of evidence of past medical
expenses; as to the capitalization rate for the valuation of husband’s law practices;
and as to goodwill. He also contends that the trial court erred by distributing divisible
portions of the law practices to wife. With respect to Winner, he further contends
that, in its ED order, the trial court made erroneous findings and failed to make
findings as to Winner’s appreciation; that the trial court erred in its valuation of wife’s
shares of Winner and in using that as a distributional factor; and that the trial court
failed to make sufficient findings of fact and conclusions of law as to husband’s ability
to pay a distributional payment.
With respect to making “proper findings as to the law practices[,]” husband
contends that the trial court’s “entire substantive findings as to the valuation of the
Law Practices . . . are just recitations of what Crawford said, not proper findings.”
Husband further notes that the two substantive issues on which Asa H. Crawford,
Jr. (“Crawford”), the valuator appointed by the court pursuant to stipulation by both
parties, and Dr. Craig Galbraith (“Galbraith”), plaintiff’s expert, disagreed were “the
attorney compensation adjustment and the calculation of the Cap Rate (including
small firm premium)[,]” and that the trial court “made absolutely no findings as to
these two crucial issues.”
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In the ED order, the trial court entered numerous findings of fact as to the
expertise of both Crawford and Galbraith. The court also noted and found that “when
two experts value the same businesses and or professional associations” attorney
compensation adjustment and the calculation of the discount rate and capitalization
rate “are the two issues most often disagreed upon by the two experts.” The trial
court then examined Crawford’s valuation and methodology used in his report in
great detail, determined that Crawford “considered approved methods to value a
business and /or a professional practice[,]” and ultimately relied upon Crawford’s
valuation in valuing and distributing the law practices. We acknowledge that the
trial court did not make explicit holdings with respect to attorney compensation
adjustment and the calculation of the discount rate, as husband argues. However,
calculation of these specific and disputed factors is not mandatory; rather, the trial
court must make sufficient findings of fact based upon competent evidence, and must
in turn base its conclusions of law upon those findings. In essence, husband argues
that the trial court’s findings are insufficient because the trial court did not consider
the computational factors husband favors; that is not our standard of review on
appeal. We hold that the trial court properly considered Crawford’s report, and
properly computed value and distributions based thereupon.
Similarly, husband raises a somewhat tortuous argument regarding Rule 414
of the North Carolina Rules of Evidence. Rule 414 limits the admissibility of evidence
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offered to pay past medical expenses. Husband contends that the application of this
rule impacted his personal injury law practice. While we decline to rule on whether
Rule 414 has any impact on the valuation of a law practice, we note that, as stated
above, the trial court based its determination upon Crawford’s report. Husband
makes similar arguments with respect to “insufficient findings as to [the]
capitalization rate” and “no findings as to goodwill[.]” The fact that the trial court
may or may not have considered the evidence or factors husband preferred is not the
issue before us; the issue is whether there was competent evidence to support the
trial court’s findings, and whether those findings in turn supported the trial court’s
conclusions. Husband concedes that Crawford recognized a decrease in the value of
husband’s personal injury practice. We hold that Crawford’s report constituted
competent evidence, and that it supported the trial court’s findings on the valuation
of the law practices.
Husband next contends that the trial court erred by distributing the divisible
portions of the law practices to wife. He bases this argument on the fact that “the
trial court here failed to make required findings about the valuation of the Law
Practices (including goodwill, attorney compensation, Rule 414 and the Cap Rate).”
Inasmuch as we have held that the trial court did not err in failing to make these
findings, we hold that the trial court did not err in its subsequent distribution of the
divisible portion of the law practices.
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Next, husband challenges the trial court’s determination as to the
classification of appreciation in Winner as active or passive. We note, as a
preliminary matter, that plaintiff did not object to Crawford opining on whether the
appreciation was active or passive. In fact, plaintiff’s counsel elicited testimony on
this issue. Specifically, counsel noted that Crawford was “not commissioned to
determine the active or passive nature of these appreciations[,]” but that “once we
look at it, it makes sense.” Crawford was then directed to break down the
appreciation in the value of the parties’ shares of Winner based on passive increases,
like inflation, and active increases, such as gifts. Counsel then noted that “this is
really where the fight is” with respect to whether the valuation was active or passive.
In its order, the trial court relied upon Crawford’s report in valuing the shares
of Winner, specifically with respect to their appreciation, and in determining that
“this appreciation was active appreciation during the marriage and prior to the date
of separation that resulted from marital efforts during the marriage. This
appreciation is marital property.” The trial court further separated this active
appreciation from “the appreciation attributable to ‘Inflation’ and ‘Other’[,]” which it
found to be passive appreciation. It therefore distributed the active appreciation as
marital property, and the passive appreciation as divisible property.
On review of the record, we hold that the trial court’s findings of fact were
supported by competent evidence, specifically Crawford’s report which was admitted
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without objection. Husband’s arguments notwithstanding, Crawford opined as to the
nature of whether income was passive or active, and the trial court relied upon that
evidence in entering its findings, which in turn supported the trial court’s
conclusions. Accordingly, we hold that the trial court did not err in classifying the
appreciation in parties’ interests in Winner as active or passive, and distributing the
increase accordingly.
Lastly, husband contends that the trial court “erred by failing to make
sufficient findings [of fact] and conclusions of law as to Husband’s ability to pay
$494,772.00 by 15 July 2016.” Specifically, the trial court considered the parties’
evidence in favor of unequal division, and, in considering that evidence, held that:
[Husband] shall be distributed 40% of the total net estate
that totals $1,376,823.00 and [wife] shall be distributed
60%. 60% is $826,094.00. Subtract from that the marital
and divisible property distributed to [wife] of $331,322.00
and [wife] is entitled to a distributive award of
$494,772.00.
The trial court then went on to observe, in its Finding of Fact 46, that
[Husband] owns a very lucrative law practice and still has
an interest in another law practice. Although he is a
minority interest in Winner Enterprises, the evidence
demonstrated that he has absolute control as a co-manager
with his mother of Winner [E]nterprises. He is able to get
distributions from Winner [E]nterprises whenever he
needs to as evidenced by his unilaterally obtaining
distributions from Winner Enterprises of more than
$250,000.00 in the past two years. In addition, [husband]
utilizes the Winner Enterprises American Express card for
the payment of personal expenses, and his shares of
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Winner Enterprises are worth $825,294.00. Plaintiff has
the means to pay the distributive award ordered below.
Husband contends that both the trial court and Crawford found that husband’s
Winner shares were not liquid, and that thus the trial court could not cite them as a
liquid source for the distributive award payment. However, husband fails to
challenge Finding 46, above, namely that husband has two sources of income from
his law practices, an ability to unilaterally obtain liquid distributions from Winner,
and the ability and willingness to use the Winner credit card to pay personal
expenses. Since husband does not challenge Finding 46, it is binding upon us. We
hold that this evidence supports the trial court’s finding that husband has the means
to pay the distributive award, and that that finding in turn supports the order to pay
it.
2. Alimony Order
With respect to the alimony order, husband contends that the trial court failed
to make proper findings of fact and conclusions of law with respect to Rule 414, with
respect to the valuation of wife’s shares of Winner, and with respect to husband’s
ability to pay the distributional payment. Husband’s arguments on these points
specifically reference his arguments made with respect to the ED order, and as we
have addressed those arguments above, we need not repeat our conclusions here. We
incorporate our holdings on these arguments herein, and once more hold that the trial
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court did not err in its findings of fact or conclusions of law with respect to these
issues.
III. Fees and Costs
In numerous additional arguments, husband contends that the trial court
erred in awarding various fees, costs, and distributions to wife. We agree in part and
disagree in part.
A. Standard of Review
“The decision regarding whether to award attorney's fees ‘lies solely within
the discretion of the trial judge, and that such allowance is reviewable only upon a
showing of an abuse of the judge's discretion.’ ” Kelly v. Kelly, 167 N.C. App. 437, 448,
606 S.E.2d 364, 372 (2004) (quoting Rickert v. Rickert, 282 N.C. 373, 378, 193 S.E.2d
79, 82 (1972)). “North Carolina statutes and case law place the award of expert
witness fees within the discretion of the trial court.” Bennett v. Equity Residential,
192 N.C. App. 512, 513, 665 S.E.2d 514, 515 (2008).
B. Analysis
Husband contends that the trial court erred by awarding attorney’s fees to wife
relating to her alimony claim, and in awarding expert witness costs to wife in
purported excess of statutory limits.
1. Attorney’s Fees
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In the alimony order, the trial court ordered that husband “shall pay partial
fees to [wife] for her incurred attorney fees in the amount of $50,000.00 minus the
$30,000.00 credit he received upon stipulation of the parties[.]” Husband notes that,
in order to award attorney’s fees, the trial court had to make a finding as to defense
counsel’s skill, his hourly rate and the reasonableness thereof, what he did, and the
hours he spent on the case. See Falls v. Falls, 52 N.C. App. 203, 221, 278 S.E.2d 546,
558 (1981). While husband concedes that wife submitted two affidavits regarding
counsel’s bill, and that the trial court found wife’s attorney’s hourly rate to be
reasonable, husband nonetheless contends that the trial court “made no findings as
to the reasonableness of fees charged, time spent or as to the reasonableness of the
$50,000.00 it ordered to be paid.”
Husband contends that the affidavits did not differentiate fees owed for child
support, post-separation support, or alimony. Wife notes, however, that the affidavits
were admitted into evidence without any objection. “In order to preserve an issue for
appellate review, a party must have presented to the trial court a timely request,
objection, or motion, . . . It is also necessary for the complaining party to obtain a
ruling upon the party’s request, objection, or motion.” N.C.R. App. P. 10(a)(1).
Inasmuch as husband failed to object to the affidavits or their sufficiency at trial, he
has failed to preserve that issue for appeal.
With respect to the trial court’s findings, the trial court found:
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39. [Wife’s] attorney of record, John M. Martin, has
submitted to the Court an affidavit. John M. Martin has
been licensed as an attorney by the N.C. State Bar since
1975. His normal hourly rate is $395.00 per hour and this
hourly rate is normal, customary, and reasonable for an
attorney possessing the years of experience and expertise
of John M. Martin. In addition, as indicated in [wife]’s
Affidavit, other members of his firm including paralegals
assisted Mr. Martin.
40. In [wife]’s attorney’s Affidavit, she is requesting an
attorney’s fee award of $67,754.75 for time spent on the
alimony case only up to and through February 21, 2016.
41. In the discretion of the Court, [wife] should be
awarded $50,000.00 as partial attorney fees for the
prosecution of her alimony claim against [husband]. Said
amount of attorney fees is a reasonable amount of fees to
be paid by [husband] on [wife]’s behalf and [husband] has
the ability to pay the amount of attorney fees awarded.
(Emphasis added.) Because the affidavits were admitted without objection, we hold
that they formed a sufficient evidentiary basis to permit the trial court to recognize
wife’s attorney’s services, and the amount charged for them. The trial court explicitly
found, within its discretion, that this fee was reasonable, based upon counsel’s skill
and expertise. The finding further reflects, notwithstanding husband’s contentions,
that the trial court made its determination solely based upon fees charged for work
done in wife’s alimony case, and not in prosecution of the remaining orders. As such,
we hold that the trial court did not abuse its discretion in its award of attorney’s fees.
2. Expert Witness Costs
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In the alimony order, the trial court also ordered that husband pay part of
wife’s fees for the cost of her expert witness, Melissa Dupuis (“Dupuis”), “in the
amount of $20,000.00[.]” Husband contends that although the trial court awarded
$20,000.00 in expert witness costs to wife, Dupuis’ bills show only one entry, for
$2,100.00, for actual testimony. Husband further contends that “there is no
indication that Dupuis actually testified.”
Husband’s contention is somewhat curious, because Dupuis’ testimony is
present in the transcript of trial. Her direct and cross-examination spans over one
hundred pages of transcript. Dupuis was accepted by the court as an expert in
forensic accounting, without objection, and testified as to her accounting of the
parties’ incomes, specifically with respect to Winner and husband’s law practices, and
the calculation of alimony. Her testimony and reports were relied upon in both the
child support order and the alimony order. It is clear, therefore, that Dupuis testified
as an expert witness, and that the trial court was authorized by statute to award
expert witness costs for that testimony.
The question, then, is whether the trial court could award costs for Dupuis’
non-testimonial work. Our statutes provide that:
In actions where allowance of costs is not otherwise
provided by the General Statutes, costs may be allowed in
the discretion of the court. Costs awarded by the court are
subject to the limitations on assessable or recoverable costs
set forth in G.S. 7A-305(d), unless specifically provided for
otherwise in the General Statutes.
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N.C. Gen. Stat. § 6-20 (2015) (emphasis added). Husband correctly notes that,
pursuant to our general statutes, expert witness costs may be awarded “solely for
actual time spent providing testimony at trial, deposition, or other proceedings.” N.C.
Gen. Stat. § 7A-305(d)(11) (2015). Were these the only statutory provisions on point,
it would seem that wife should only be able to cover for Dupuis’ testimony, and no
more.
However, the North Carolina Rules of Evidence are also codified in statute.
Rule 706(b) provides that court-appointed experts “are entitled to reasonable
compensation in whatever sum the court may allow” and that “the compensation shall
be paid by the parties in such proportion and at such time as the court directs, and
thereafter charged in like manner as other costs.” N.C. Gen. Stat. § 8C-1, Rule 706(b)
(2015). Thus, while ordinarily the costs of an expert may only be awarded for
testimony given, the costs of a court-appointed expert are not subject to such
limitation.
Wife contends that, despite submitting Dupuis as her own expert, Dupuis
became a court-appointed expert. Wife cites several cases in which a prior order by
the court required that an expert be appointed, and that, despite the expert being
retained by one party, that expert was functionally a court-appointed expert, entitled
to fees pursuant to Rule 706. See Swilling v. Swilling, 329 N.C. 219, 223-24, 404
S.E.2d 837, 840 (1991) (where the trial court ordered that, if parties could agree on
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an appraiser, it would appoint that appraiser, and if they could not, it would one of
its own choosing; this was held to be “a show cause order within the meaning of Rule
706(a)[,]” and the expert was properly entitled to compensation under Rule 706);
Weaver Inv. Co. v. Pressly Dev. Assoc., 234 N.C. App. 645, 661, 760 S.E.2d 755, 764-
65 (2014) (where the trial court ordered the appointment of forensic experts, and
there was no evidence that the experts were not court-appointed, it was not error to
award their fees as costs).
In the instant case, there is a subpoena in the record, compelling Dupuis to
testify. And there are both motions to appoint expert witnesses, and orders
appointing expert witnesses, in the record. However, there are no orders in the record
appointing a forensic accountant for purpose of alimony, nor any order mentioning
Dupuis by name or role.
The instant case is thus distinguishable from the cases cited by wife. In those
cases, there was some form of prior court order appointing an expert, thus placing the
parties on notice that the expert might be considered court-appointed pursuant to
Rule 706. In the instant case, however, no such prior order exists with respect to
Dupuis. Although Dupuis’ work was relied upon by the trial court in its alimony
order, and although husband provided no expert of his own for alimony purposes,
there does not appear to be a basis upon which Dupuis could have been considered a
court-appointed expert. Accordingly, we hold that the trial court erred in awarding
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expert fees as costs, except inasmuch as those fees encompassed fees for testimony
only. We remand this matter for the court to make more detailed findings as to the
extent of fees owed for Dupuis’ testimony, and to enter an award accordingly.
IV. Motion to Dismiss
Lastly, husband contends that the trial court erred in denying husband’s
motion to dismiss wife’s child support appeal. We agree.
A. Standard of Review
“ ‘Failure to give timely notice of appeal in compliance with . . . Rule 3 . . . is
jurisdictional, and an untimely attempt to appeal must be dismissed.’ ” Dogwood
Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361,
365 (2008) (quoting Booth v. Utica Mut. Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98,
99-100 (1983)).
B. Analysis
On 31 March 2016, the trial court entered the ED order. On 1 April 2016, the
trial court entered the child support order and the alimony order. On 25 April 2016,
within thirty days of all orders being filed, husband filed notice of appeal from the
ED order and the alimony order. On 4 May 2016, within ten days of husband’s notice
of appeal, wife filed notice of cross-appeal from the ED order and the child support
order. In his motion to dismiss wife’s appeal with respect to child support, husband
contended that (1) the time for wife to appeal the child support order had expired,
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and (2) as husband had not appealed the child support order, wife could not cross-
appeal it.
Pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure, appeals
must be taken within thirty days after entry of judgment if the party has been
properly served. N.C.R. App. P. 3(c)(1). However, “[i]f timely notice of appeal is filed
and served by a party, any other party may file and serve a notice of appeal within
ten days after the first notice of appeal was served on such party.” N.C.R. App. P.
3(c). The rules are not explicit regarding whether such a notice of appeal, in a single
proceeding resulting in multiple orders, is limited to the orders contained in the
initial notice of appeal. Nor does our case law make explicit whether a cross-appeal
is so limited. This is therefore a matter of first impression before this Court.
Although the matter is one of first impression, it is not altogether novel. We
find our decision in Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990),
enlightening. In Surratt, Jerry Newton brought a claim for summary ejectment
against Katherine Surratt. Katherine Surratt filed counterclaims against Jerry
Newton, in which she joined Paul Jeffrey Newton as a defendant. At the conclusion
of a trial which ended in Katherine Surratt’s favor, both Jerry and Paul Jeffrey
Newton moved for judgment notwithstanding the verdict (“JNOV”); the trial court
denied these motions on 17 April 1989. Jerry Newton gave notice of appeal on 19
April 1989. Paul Jeffrey Newton gave notice of appeal on 1 May 1989. Katherine
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Surratt moved to dismiss Paul Jeffrey Newton’s untimely appeal. The trial court
granted this motion, and Paul Jeffrey Newton appealed. Id. at 399-401, 393 S.E.2d
at 556-57.
At the time of Surratt, Rule 3 provided a 10-day window for appeal, rather than
the 30-day window for appeal in the present day. Paul Jeffrey Newton’s notice of
appeal was thus filed outside of the initial 10-day window for appeals. Nonetheless,
on appeal, Paul Jeffrey Newton contended that he had 10 days to file his appeal after
Jerry Newton did so. This Court acknowledged the language of Rule 3(c), which
provides that, “ ‘[i]f a timely notice of appeal is filed and served by a party, any other
party may file and serve a notice of appeal within 10 days after the first notice of
appeal was served on such party.’ ” Id. at 402, 393 S.E.2d at 557 (quoting N.C.R. App.
P. 3(c)). However, we then proceeded to distinguish the scenario from that
contemplated by the Rules:
Here, defendant Paul Jeffrey Newton was not an original
party to this action but brought into the suit by
counterclaim of the plaintiff. Defendants Paul Jeffrey
Newton and Jerry Newton were charged with separate
violations for separate time periods that each managed the
property. Each defendant was represented by his own
counsel. The trial court carefully separated each issue as it
related to each defendant and the jury rendered separate
and distinct verdicts against each defendant. We hold that
Rule 3(c) merely contemplates an additional, extended
time period for a response only from other parties to that
same appeal. Defendant Jerry Newton’s appeal was totally
unrelated and unaffected by the appeal of defendant Paul
Jeffrey Newton.
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Opinion of the Court
Id. at 402, 393 S.E.2d at 557. As a result, we affirmed the trial court’s dismissal of
Paul Jeffrey Newton’s untimely appeal.
We find particularly helpful the operative language “parties to that same
appeal.” While it is clear that, in the instant case, both husband and wife were parties
to the entirety of the proceedings below, appeal is taken from an order or judgment,
not an entire proceeding. Despite the appeals all involving the same underlying facts,
as was somewhat true in Surratt, husband appealed only from the ED order and
alimony order. Since he did not appeal from the child support order, he was not a
party “to that same appeal.”
This is not to say that wife could not have appealed from the child support
order at all. We decline to rule that husband, in filing his notice of appeal first, was
able to frame all issues and orders on appeal to the exclusion of any others. However,
for wife to appeal from an order that husband did not challenge, it was incumbent
upon her to do so within the initial 30-day window available to all new appeals. Her
filing during the 10-day window for cross-appeals, inasmuch as it exceeded the initial
30-day window, limited her to address only those orders husband addressed in his
appeal.
Our ruling is firmly rooted in the interests of fairness. Wife contends that
husband’s filing of notice of appeal, so close to the end of the 30-day window,
prevented her from properly filing an appeal of her own, and thus limited her to filing
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Opinion of the Court
a cross-appeal. We note, however, that her cross-appeal of the child support order
had the same impact on husband, in that it precluded him from filing a cross-appeal
from the child support order in response to wife’s cross-appeal. We further note that,
even in the event of an untimely appeal, a remedy exists in the form of the petition
for certiorari, which wife did not file.
In the interests of clarity, we shall now make our holding on this issue explicit.
In a matter in which multiple, separate orders issue, and one party appeals from
some, but not all, of those orders, a cross-appellant who files her cross-appeal outside
of the 30-day window contemplated by Rule 3(c), but within the 10-day window for
cross-appeals, shall be limited to appeal from only those orders challenged in the
original appeal. We strongly admonish parties who are considering appeal to act
promptly to preserve their rights, even if they subsequently choose to voluntarily
dismiss their appeals, rather than to rely on the magnanimity of opposing counsel.
We hold therefore that, in the instant case, the trial court erred in denying
husband’s motion to dismiss wife’s appeal of the child support order. We reverse the
trial court’s order denying the motion to dismiss.
V. Ownership Interest
In her first argument, wife contends that the trial court erred in “failing to
recognize that it had the legal authority to” transfer wife’s ownership interest in
Winner to husband. Wife concedes that she does not contend that the trial court’s
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Opinion of the Court
equitable division was in error, but instead offers that, if this Court “requires a
remand to the District Court on equitable distribution,” it should instruct the trial
court to exercise its authority to transfer wife’s shares of Winner to husband. Because
we do not remand to the trial court on the ED order, we decline to instruct the trial
court as wife suggests.
VI. Other Arguments
In her second, third, and fourth arguments, wife raises issues with respect to
the child support order. Because we have held that the trial court erred in denying
husband’s motion to dismiss wife’s cross-appeal of the child support order, we hold
that this matter is not properly before us, and dismiss these arguments.
VII. Conclusion
With respect to husband’s arguments on appeal, the trial court did not err in
its findings of fact or conclusions of law, nor in awarding attorney’s fees. However, it
could only award expert witness fees for time actually spent testifying, and we
remand for recalculation of those fees. We hold that wife’s appeal of the child support
order was untimely, and that the trial court erred in denying husband’s motion to
dismiss it.
With respect to wife’s arguments on appeal, we dismiss her arguments with
respect to the ED order, as she did not appeal from that order. We further hold that
because the trial court erred in denying husband’s motion to dismiss wife’s cross-
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Opinion of the Court
appeal of the child support order, that issue is not properly before us. We therefore
dismiss wife’s remaining arguments, all of which concern the child support order.
AFFIRMED IN PART, REMANDED IN PART, REVERSED IN PART,
DISMISSED IN PART.
Judges DIETZ and MURPHY concur.
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