Bromhal v. Stott

447 S.E.2d 481, 116 N.C. App. 250, 1994 N.C. App. LEXIS 904
CourtCourt of Appeals of North Carolina
DecidedSeptember 6, 1994
Docket9310DC611
StatusPublished
Cited by39 cases

This text of 447 S.E.2d 481 (Bromhal v. Stott) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bromhal v. Stott, 447 S.E.2d 481, 116 N.C. App. 250, 1994 N.C. App. LEXIS 904 (N.C. Ct. App. 1994).

Opinions

WYNN, Judge.

The parties were married to each other on 23 April 1977 and separated on or about 17 August 1987. Two minor children were bom to [251]*251the parties during the marriage. On 27 August 1987 the parties executed a separation agreement and property settlement. Paragraph 23 of the separation agreement provides:

[Iljusband will pay the sum of $175 per week as child support pending the sale of the marital home. . . . After the aforesaid sale is consummated and the funds therefrom disbursed, the parties agree to renegotiate the amount of child support to be contributed by husband; however, husband agrees that such support payment will not be less than twenty-five (25%) percent of his adjusted gross income.

On 25 November 1987, the parties executed a modification agreement to the 27 August separation agreement. It provided that defendant would purchase plaintiffs interest in the marital home and that upon plaintiff’s vacation of the house, “[h]usband shall thereafter be required to begin making child support payments in accordance with the provisions for computing such payments detailed in paragraph 23 of the parties Separation Agreement dated 25 August 1987.”

Defendant did purchase plaintiffs interest in the home and plaintiff and the children vacated it in August 1988. Defendant reoccupied the home but never increased the amount of child support payments, even though the $175 per week he was paying was less than 25% of his income.

On 28 December 1988, plaintiff filed a complaint for specific performance of the separation agreement and modification agreement. An amended complaint was filed on 13 June 1989. Plaintiff asked for an order requiring defendant to pay child support in an amount not less than 25% of his gross monthly income since 1 August 1988 and continuing thereafter. Plaintiff also requested attorney’s fees and reimbursement of expenses pursuant to the paragraph of the separation agreement providing:

Suit costs. If either party shall fail to keep and perform any agreement or provision hereof, the other party shall be entitled to recover reasonable attorney’s fees and any and all other expenses incurred in any action instituted to enforce provisions of this agreement.

The parties entered into a stipulation agreement on 27 September 1989, which recited, among other things, that the parties agree that the separation agreement is valid and enforceable; that a district court judge may review the agreement and determine all matters in [252]*252controversy between the parties based on it; and that the modification agreement is valid and enforceable and “shall be reviewed and interpreted according to its terms and the intent of the parties.”

Plaintiff moved for summary judgment on 6 December 1989. On 17 January 1990, Judge Jerry Leonard granted partial summary judgment for plaintiff, finding that, pursuant to the parties’ stipulation agreement, the Separation Agreement and Modification Agreement are valid and enforceable; beginning at the time of sale or transfer of the marital residence, defendant was required to provide child support payments of “not less than twenty-five (25%) percent of his adjusted gross income”; defendant is obligated under the agreements to provide medical insurance and costs, in excess of coverage; and “in any and all other respects Defendant’s liability pursuant to the terms of the existing Agreements is established.” Summary judgment was partial because, although plaintiff won summary judgment as to defendant’s liability, the question of damages was reserved for later hearing.

Subsequent to Judge Leonard’s 17 January 1990 order, plaintiff filed a separate and independent lawsuit pursuant to Chapter 50 of the North Carolina General Statutes, seeking, among other things, court-ordered child support. By special commission, Judge Lowry M. Betts heard the case on 11 April 1990 and, on 28 January 1991, issued a child support order requiring defendant to pay plaintiff $598.73 per month.

When the specific performance case next arose for hearing in the trial court, Judge O. Henry Willis, Jr. determined that due to the entry of Judge Betts’s child support order, plaintiff “elected her remedy” when she pursued the child support action. The court granted summary judgment for defendant, determining that plaintiff’s claim for specific performance of the child support provision of the separation agreement would terminate as of the date of entry of Judge Betts’s order and that plaintiff’s specific performance case should be repleaded “in the nature of a contract action.” In other words, plaintiff’s claim for child support was limited by summary judgment to a claim for arrearages in child support, among other things, accrued during the time from the date of activation of payments pursuant to the separation agreements to the date child support payments were ordered by the court. This order was entered 10 October 1991.

On 15 and 16 October 1992, Judge Willis heard the contract case. Judgment was announced in open court on 16 October 1992 and [253]*253entered on 3 November 1992. Plaintiff was awarded $22,550.49, plus interest, for unpaid child support and reimbursement for one additional marital debt, and defendant was ordered to compensate plaintiff for attorney’s fees incurred at all stages of the case in the amount of $40,000. Defendant appeals this judgment.

We dispose of defendant’s first four arguments without addressing them because the orders from which they arise were not designated in his notice of appeal. Defendant’s first four arguments deal with previous rulings by the court: an award of attorney’s fees to plaintiff and denial of attorney’s fees to defendant on an earlier motion in the cause; the court’s partial summary judgment ruling of 17 January 1990; and the court’s denial of defendant’s summary judgment motion of 10 October 1991 and subsequent denials of defendant’s renewed motions for summary judgment on the issue of accord and satisfaction. There are two notices of appeal in the record. Both designate appeal from Judge Willis’s judgment. One was filed on 28 October 1992, following the oral entry of judgment; the other was filed on 20 November 1992, following written entry of judgment. The notices clearly and exclusively recite that notice of appeal is given only as to that judgment. Rule 3(a) of the North Carolina Rules of Appellate Procedure requires that a notice of appeal “must designate the judgment or order from which appeal is taken.” Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990); Brooks, Comm’r of Labor v. Gooden, 69 N.C. App. 701, 318 S.E.2d 348 (1984). Due to a lack of jurisdiction, then, we do not address defendant’s first four issues.

In addition, defendant abandoned several of his arguments by failing to brief them or failing to cite any authority supporting them pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure, which provides, “Assignments of error not set out in the appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.

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Cite This Page — Counsel Stack

Bluebook (online)
447 S.E.2d 481, 116 N.C. App. 250, 1994 N.C. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bromhal-v-stott-ncctapp-1994.