Brown v. Swarn

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-683

Filed: 16 January 2018

Transylvania County, No. 14-CVD-318

LAUREN K. BROWN, Plaintiff,

v.

MARQUIS SWARN, Defendant.

Appeal by Marquis Swarn from order entered 26 August 2016 by Judge T.

Mack Brittain in Transylvania County District Court. Heard in the Court of Appeals

28 November 2017.

Emily Sutton Dezio for the Plaintiff-Appellee.

Donald H. Barton, P.C., by Donald H. Barton, for the Defendant-Appellant.

DILLON, Judge.

Lauren K. Brown (“Mother”) and Marquis Swarn (“Father”) are the parents of

a minor child, Annie1. Father appeals from the trial court’s second custody order

entered in this matter. We hold that we have jurisdiction over this appeal,

notwithstanding that Father noticed his appeal seven months after the second

custody order was entered. On the merits, we affirm.

I. Background

1 A pseudonym.

BROWN V. SWARN

Opinion of the Court

In June 2014, Mother commenced this action against Father, seeking custody

of their child, Annie.

In April 2015, the trial court entered a Consent Order (the “2015 Consent

Order”), setting forth certain custody terms as agreed to by the parties.

Over the course of the next year, Father allegedly violated the 2015 Consent

Order by depriving Mother of some custody time. To address Father’s violation, in

April 2016, Mother filed a Motion to Show Cause and Modify Custody, in part, to seek

additional custody time with Annie to make up for the custody time she had lost.

In August 2016, the trial court entered a second custody order entitled the

Temporary Non-Prejudicial Custody Order (the “2016 Order”). Seven months later,

on 13 March 2017, Defendant filed written notice of appeal from the 2016 Order.

II. Jurisdiction

Mother makes essentially two arguments challenging our appellate

jurisdiction in this matter, which we address in turn.

A. Father’s Appeal Was Timely

Mother argues that we should dismiss Father’s appeal because he failed to

appeal in a timely manner, as Father did not notice his appeal until seven months

after the 2016 Order was entered. We disagree, as there is nothing in the record

showing when Father was served with the 2016 Order or indicating that Father

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Opinion of the Court

otherwise received actual notice of its entry more than thirty days before he noticed

his appeal.

Rule 3 of the North Carolina Rules of Appellate Procedure provides that, unless

the judgment is served on the appellant within three days of its entry, an appellant

must notice his appeal within thirty (30) days of being served the judgment:

In civil actions and special proceedings, a party must file

and serve a notice of appeal:

(1) within thirty days after entry of judgment if the party

has been served with a copy of the judgment within the

three-day period prescribed by Rule 58 of the Rules of Civil

Procedure; or

(2) within thirty days after service upon the party of a copy

of the judgment if service was not made within that three-

day period[.]

N.C.R. App. P. 3(c) (2015).

There appears to be a tension in our case law regarding the timeliness of an

appeal where the record fails to indicate when the judgment was served on the

appellant. In at least two cases, our Court has held that where the record fails to

include the certificate of service showing the date when the appellant was served the

judgment, the time by which the appellant must notice his appeal is tolled

indefinitely. Rice v. Coholan, 205 N.C. App. 103, 110-11, 695 S.E.2d 484, 489-90

(2010) (holding that “[b]ecause there was no certificate of service filed, the time for

filing the notice of appeal was tolled”); Davis v. Kelly, 147 N.C. App. 102, 105, 554

S.E.2d 402, 404 (2001).

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Opinion of the Court

But in another line of cases, our Court has held that even if the record does not

show that the appellant was properly served the judgment, the appellant still must

notice his appeal within thirty (30) days of receiving actual notice of a judgment’s

entry. Manone v. Coffee, 217 N.C. App. 619, 623, 720 S.E.2d 781, 784 (2011) (“[W]e

hold that when a party receives actual notice of the entry and content of a judgment,

. . . the service requirements of Rule 3(c) of the Rules of Appellate Procedure are not

applicable.”); see also E. Brooks Wilkins Family Med., P.A., v. WakeMed, ___ N.C. App.

___, ___, 784 S.E.2d 178, 183 (2016); Magazian v. Creagh, 234 N.C. App. 511, 513,

759 S.E.2d 130, 131 (2014); Huebner v. Triangle Research Collaborative, 193 N.C.

App. 420, 424-26, 667 S.E.2d 309, 311-12 (2008).

The tension arises because, in Rice and Davis, the records on appeal each

showed that the appellant had, in fact, received actual notice of the judgment’s entry

more than thirty days before noticing the appeal. For instance, in Rice, the appellee

actually argued that the appeal should be dismissed based on the appellant’s receipt

of actual notice as evidenced in the record, notwithstanding the lack of a certificate

of service. Rice, 205 N.C. App. at 110, 695 S.E.2d at 489 (stating that trial court sent

copies of its order to the parties’ counsel). And in the 2001 Davis opinion, our Court

cited to evidence that the appellant had received actual notice of the filed judgment

more than thirty days before noticing the appeal:

In the present case, judgment was entered 24 August 2000

and was served on defendant 1 September 2000 as

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Opinion of the Court

evidenced by a copy of a letter from plaintiff to defendant.

Plaintiff did not, however, file a certificate of service as

required by Rule 5(d) until 26 October 2000. . . . Defendant

subsequently filed a proper notice of appeal . . . on 10

October 2000. Plaintiff argues that defendant filed the

notice of appeal more than 30 days after the judgment was

entered and that her appeal should therefore be dismissed.

We note that plaintiff did not fully comply with the service

requirements of Rule 58 of the Rules of Civil Procedure

until 26 October 2000 since that is the date he filed a

certificate of service with the court. The running of the

time for filing and serving a notice of appeal was tolled

pursuant to N.C.R. App. P. 3 until plaintiff’s compliance,

and defendant’s notice of appeal is, therefore, timely.

Plaintiff’s motion to dismiss the appeal is denied.

Davis, 147 N.C. App. at 105, 554 S.E.2d at 404.

We note, however, that the tension is more apparent than real. Specifically,

Rice and Davis never squarely addressed the relevance of the appellant’s actual

notice of a judgment’s entry. For instance, the 2011 Rice opinion never mentions the

“actual notice” argument made by the appellee in that case, but simply relied on the

2001 Davis holding in concluding that the appeal was timely noticed due to the lack

of a certificate of service. Rice, 205 N.C. App. at 110-11, 695 S.E.2d at 489-90. And

the Davis Court did not address the “actual notice” argument, as we held in our 2008

Huebner opinion:

Contrary to plaintiff’s assertion, we do not read Davis as

conclusively resolving the issues of actual notice and

waiver. While it appears that similar to plaintiff here, the

defendant in Davis had actual notice of entry of judgment

and the judgment’s content, the Court did not discuss the

issue of actual notice. . . .

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Opinion of the Court

Based on the lack of discussion of actual notice and waiver

in Davis . . . , we do not believe that Davis forecloses

dismissal of an appeal based on waiver due to an

appellant’s extended delay in filing the notice of appeal

where the record clearly indicates that an appellant has

actual notice of the entry of judgment and its content.

Huebner, 193 N.C. App. at 424-25, 667 S.E.2d at 312. Therefore, whereas Davis and

Rice do not address the actual notice issue head-on, the line of cases which do address

the issue head-on stands for the following proposition: where evidence in the record

shows that the appellant received actual notice of the judgment more than thirty days

before noticing the appeal, the appeal is not timely.

Our Supreme Court has similarly acknowledged the importance of “fair notice”

in determining when the time for an appellant to file an appeal begins to run.

Stachlowski v. Stach, 328 N.C. 276, 287, 401 S.E.2d 638, 645 (1991) (holding that

constructive entry of a judgment may occur when the judgment’s terms are final and

the parties have received fair notice of the judgment). In 1993, we relied on

Stachlowski in holding that an appeal was not timely when noticed thirty-one days

after appellant received actual notice of the judgment. Saieed v. Bradshaw, 110 N.C.

App. 855, 860, 431 S.E.2d 233, 236 (1993).2

2 Saieed was decided when Rule 58 required that the clerk mail a notice of a judgment’s filing

to the parties in order to complete the “entry” of the judgment. In Saieed, the record failed to show

that the clerk ever mailed the notice and, therefore, there was no evidence that the judgment was

technically “entered.” Relying on our Supreme Court’s reasoning, we dismissed the appeal,

notwithstanding that the judgment had not yet been properly entered pursuant to the requirements

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Opinion of the Court

All the cases however, implicitly suggest, and we so hold, that the burden is on

the appellee to show that the appellant, in fact, received actual notice more than thirty

days before the appeal to warrant a dismissal of the appeal. That is, where there is

no certificate in the record showing when the appellant was served with the

judgment, it is not the appellant’s burden to show when (s)he received actual notice.

There was no such burden placed on the appellant in Rice or Davis or in any of the

cases discussing the issue of actual notice.

In the instant case, the trial court orally rendered its 2016 Order on 2 August

2016 at the conclusion of the hearing and entered the 2016 Order on 26 August 2016.

The record, however, does not contain a certificate to evidence when Father was

served with the 2016 Order or anything indicating when Father received actual notice

that it had been entered.3 Accordingly, we hold that where, as here, there is no

certificate of service in the record showing when appellant was served with the trial

court judgment, appellee must show that appellant received actual notice of the

judgment more than thirty days before filing notice of appeal in order to warrant

dismissal of the appeal.

B. Father’s Appeal Is Not Interlocutory

under Rule 58, where the record showed that the appellant had received actual notice of the judgment

thirty-one (31) days before noticing the appeal, making the notice one day too late.

3 It is obvious from the record that Father did receive such actual notice of the 2016 Order’s

entry at some point based on his reference to the Order in his notice of appeal. However, there is no

indication in the record that Father received actual notice more than thirty days before noticing his

appeal.

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Opinion of the Court

Mother argues that even if Father’s appeal was timely noticed, it should be

dismissed because it is from an interlocutory order. We disagree.

“As a general rule, interlocutory orders are not immediately appealable.”

Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009).

This Court has held that temporary child custody orders are interlocutory, that they

do not affect a substantial right, and that no immediate right to appeal lies therefrom,

Sood v. Sood, 222 N.C. App. 807, 809, 732 S.E.2d 603, 606 (2012); but that an appeal

of right does lie from the final, permanent custody order reflecting the trial court’s

ultimate disposition. Id. For the reasons stated below, we hold that the 2016 Order,

though denominated a “temporary order,” is in fact a permanent order and, therefore,

is immediately appealable.

This Court has repeatedly followed the rule that “an order is temporary if

either (1) it is entered without prejudice to either party[;] (2) it states a clear and

specific reconvening time in the order and the time interval between the two hearings

was reasonably brief; or (3) the order does not determine all the issues.” Senner v.

Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675, 677 (2003). We find that, despite the

Order’s title given by the trial court, the 2016 Order is a permanent child custody

order. The terms of the Order do not mention withholding prejudice to either party,

and there are no dates established in the Order for future proceedings. The 2016

Order provides a custody schedule and states that the “parties shall continue with

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Opinion of the Court

this schedule until there are further orders of this court,” giving permanent effect to

the order’s terms until such time as they are properly superseded or modified. The

2016 Order speaks to all pertinent issues and appears to be permanent and final.

Father’s appeal is not interlocutory.

Therefore we hold that we have jurisdiction over Father’s appeal.

III. Analysis

Here, the trial court entered the 2016 Order, which modified certain terms of

the 2015 Consent Order, based on findings that such changes were in the best

interests of Annie. Father argues that the 2016 Order should be reversed because

the trial court failed to make appropriate findings of fact regarding a substantial

change in circumstances from the time the earlier custody order (the 2015 Consent

Order) was entered. That is, Father contends that the earlier 2015 Consent Order

was a permanent custody order which could only be modified based on a “change of

circumstances” analysis. We disagree.

Modification of a permanent child custody order requires the trial court to

make specific findings of fact showing a substantial change in circumstances

warranting modification. See Shipman v. Shipman, 357 N.C. 471, 473, 586 S.E.2d

250, 253 (2003); N.C. Gen. Stat. § 50-13.7(a) (2015). Modification of a temporary

order, however, requires a much less stringent standard, such as considering the best

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Opinion of the Court

interests of the child. See Smith v. Barbour, 195 N.C. App. 244, 251, 671 S.E.2d 578,

583 (2009).

We hold that the prior 2015 Consent Order was a temporary custody order.

Though the 2015 Consent Order made no mention of prejudice to the parties or stated

a definitive future date for further proceedings, the 2015 Consent Order did leave

issues concerning Annie’s custody to be determined at a later date. For instance, the

2015 Consent Order states that “[t]he parties shall attend Child Custody Mediation

in June of 2015 to discuss elementary school attendance and any other custody matter

which needs to be addressed.” Further, the 2015 Consent Order did not resolve with

whom Annie would spend holidays, leaving it up to the parties to reach some

agreement. This language reflects the trial court’s intent to have the 2015 Consent

Order bridge the gap until future discussions could lead to entry of a more permanent

order covering all issues. See Dancy v. Dancy, ___ N.C. App. ___, ___, 785 S.E.2d 126,

129 (2016) (finding that the issue of custody on holidays had been decided, but that

additional visitation issues remained). Therefore, we conclude that the 2015 Consent

Order was temporary and, accordingly, the trial court did not err in applying a “best

interests of the child” standard in its 2016 Order to modify the 2015 Consent Order.

AFFIRMED.

Judges BRYANT and Judge DIETZ concur.

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