IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-600
Filed: 5 February 2019
Buncombe County, No. 15 CVD 1562
GARY PHILIP RAMSEY, Plaintiff,
v.
KALLEY ELIZABETH RAMSEY, Defendant.
Appeal by plaintiff from order entered 27 February 2018 by Judge Susan
Dotson-Smith in Buncombe County District Court. Heard in the Court of Appeals 13
November 2018.
Mary E. Arrowood for plaintiff-appellant.
No brief filed for defendant-appellee.
ZACHARY, Judge.
Plaintiff Gary P. Ramsey appeals from the trial court’s order holding him in
contempt. However, because our ability to conduct meaningful appellate review has
been impaired due to Plaintiff’s gross and substantial noncompliance with the North
Carolina Rules of Appellate Procedure, we dismiss the appeal.
I. Nonjurisdictional Appellate Rules Violations
Included among the North Carolina Rules of Appellate Procedure is a litany of
nonjurisdictional requirements that are “designed primarily to keep the appellate
process flowing in an orderly manner.” Dogwood Dev. & Mgmt. Co. v. White Oak RAMSEY V. RAMSEY
Opinion of the Court
Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008). Though not jurisdictional,
compliance with these rules is mandatory. Id. at 194, 657 S.E.2d at 362.
One such directive is Rule 12, which requires the appellant to file the record
on appeal within fifteen days after the record has been settled pursuant to Rule 11.
N.C.R. App. P. 12(a). Another nonjurisdictional but mandatory requirement is Rule
28(b), which governs the content of an appellant’s brief. N.C.R. App. P. 28(b). The
function of Rule 28 is to ensure that the parties’ briefs “define clearly the issues
presented to the reviewing court and to present the arguments and authorities upon
which the parties rely in support of their respective positions thereon.” N.C.R. App.
P. 28(a). Rule 28(b) contains a list of ten rules designed to promote that function. For
example, before setting forth his substantive argument, the appellant’s brief must
first contain a separate statement of the issues presented for review; a statement of
the procedural history of the case; and a statement of the grounds for appellate
review, including citation to the statute permitting appellate review. N.C.R. App. P.
28(b)(2)-(4). An appellant’s brief must also include a section containing “[a] full and
complete statement of the facts”—that is, a “summary of all material facts underlying
the matter in controversy which are necessary to understand all issues presented for
review.” N.C.R. App. P. 28(b)(5).
A “failure of the parties to comply with the[se] rules, and failure of the
appellate courts to demand compliance therewith, may impede the administration of
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justice.” Dogwood, 362 N.C. at 193, 657 S.E.2d at 362. Rule 25 therefore allows this
Court, on its own initiative, to sanction a party for noncompliance. N.C.R. App. P.
25(b). However, sanctions are only appropriate where the party’s noncompliance
“rise[s] to the level of a ‘substantial failure’ or ‘gross violation.’ ” Dogwood, 362 N.C.
at 199, 657 S.E.2d at 366. Factors relevant to that determination will include, among
others, “whether and to what extent the noncompliance impairs the court’s task of
review and whether and to what extent review on the merits would frustrate the
adversarial process.” Id. at 200, 657 S.E.2d at 366-67. “The court may also consider
the number of rules violated, although in certain instances noncompliance with a
discrete requirement of the rules may constitute a default precluding substantive
review.” Id. at 200, 657 S.E.2d at 367.
If it is determined that a party’s violation of nonjurisdictional rules does indeed
rise to the level of gross or substantial, then Rule 34(b) provides a list of appropriate
sanctions that this Court may impose. N.C.R. App. P. 34(b); Dogwood, 362 N.C. at
201, 657 S.E.2d at 367. The list of appropriate sanctions includes dismissal of the
appeal, monetary sanctions, and “any other sanction deemed just and proper.” N.C.R.
App. P. 34(b)(1)-(3).
In determining which of the Rule 34(b) sanctions to impose, it is well settled
that this Court ordinarily “should impose a sanction other than dismissal . . . . This
systemic preference not only accords fundamental fairness to litigants but also serves
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to promote public confidence in the administration of justice in our appellate courts.”
Dogwood, 362 N.C. at 200, 657 S.E.2d at 366. Ultimately, “the sanction imposed
should reflect the gravity of the violation,” id., and be well tailored to this Court’s
discretionary “authority to promote compliance with the appellate rules,” id. at 199,
657 S.E.2d at 366, bearing in mind that dismissal is reserved only for the “most
egregious instances of nonjurisdictional default.” Id. at 200, 657 S.E.2d at 366.
If after consideration of other sanctions it is nonetheless determined that the
party’s noncompliance warrants dismissal, this Court “may then consider whether
the circumstances of the case justify invoking Rule 2 to reach the merits of the
appeal.” Id. at 201, 657 S.E.2d at 367. “In this situation, [we] may only review the
merits on ‘rare occasions’ and under ‘exceptional circumstances,’ ‘to prevent manifest
injustice to a party, or to expedite decision in the public interest.’ ” Id. (quoting State
v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) and N.C.R. App. P. 2). The
decision whether to invoke Rule 2 is within the discretion of this Court. Selwyn Vill.
Homeowners Ass’n. v. Cline & Co., 186 N.C. App. 645, 650, 651 S.E.2d 909, 912 (2007).
II. Nature of the Appellate Rules Violations in the Instant Case
Plaintiff’s appeal in the instant case violates at least eight mandatory rules of
the North Carolina Rules of Appellate Procedure: Rules 28(b)(2), 28(b)(3), 28(b)(4),
28(b)(5), 28(b)(6), 28(b)(9), 28(j)(2), and 12(a). Particularly concerning is that
Plaintiff’s brief contains no Statement of the Facts, as required by Rule 28(b)(5).
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Plaintiff’s brief instead begins immediately with his Argument, providing this Court
with no context from which to understand his scattered references to the various
errors alleged therein. Cf. Pers. Earth Movers, Inc. v. Thomas, 182 N.C. App. 329,
330, 641 S.E.2d 751, 752 (2007) (“[D]efendant’s account of the facts is exactly one
paragraph with eighteen lines. Additionally, the facts are at best vague[] [and] fail to
set forth the material facts necessary to adequately understand the questions
presented for appellate review . . . .”). Nor is there a Statement of the Case as required
by Rule 28(b)(3). Thus, even after having fully read Plaintiff’s brief, this Court is left
entirely unaware of the procedural posture from which the appeal resulted.
Furthermore, wholly absent from Plaintiff’s brief is a Statement of the
Grounds for Appellate Review, with accompanying citation of the supporting
statutory authority, as required by Rule 28(b)(4). Plaintiff’s brief also violates Rule
28(b)(6), which requires that his “argument shall contain a concise statement of the
applicable standard(s) of review for each issue, which shall appear either at the
beginning of the discussion of each issue or under a separate heading placed before
the beginning of the discussion of all the issues.” N.C.R. App. P. 28(b)(6). Here,
Plaintiff only includes the standard of review at the beginning of the second of his
three argument sections. Even then, Plaintiff merely provides that “The standard of
review is whether or not there is competent evidence to support findings of fact and
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whether the findings are supported by conclusions of law.”1 The first and third
argument sections do not reference a governing standard of review until the final
sentences wherein, again, Plaintiff simply proclaims in conclusion that “The standard
of review is whether or not there was an abuse of discretion by the trial court.”
Moreover, in blatant violation of Rule 28(b)(6), none of Plaintiff’s three arguments
contain any citation of authority verifying that his proffered standard of review is, in
fact, correct.
Plaintiff’s brief also contains other more minor errors. Also absent from
Plaintiff’s brief is a statement of the issues presented for review, in violation of Rule
28(b)(2). Next, Plaintiff’s Certificate of Service provides that he served his brief “upon
all parties to this cause” rather than specifically identifying “the names of the persons
served,” as required by Rules 28(b)(9) and 26(d). N.C.R. App. P. 28(b)(9); N.C.R. App.
P. 26(d). Though seemingly negligible, this violation is concerning in that no appellee
brief was filed in the instant case. See Dogwood, 362 N.C. at 199-200, 657 S.E.2d at
366 (explaining that the Court’s “exercise of remedial discretion under Rules 25 and
34 entails a fact-specific inquiry into the particular circumstances of each case”). Also
minor, yet indicative of his overall noncompliance with the Appellate Rules, is
1 We further note that this is not the correct standard of review. See Watson v. Watson, 187 N.C. App. 55, 64, 652 S.E.2d 310, 317 (2007) (“The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.” (emphasis added)), disc. review denied, 362 N.C. 373, 662 S.E.2d 551 (2008).
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Plaintiff’s Certificate of Compliance, which declares the precise number of words
contained in his brief, instead of the statement required by Rule 28(j)(2) that it
“contains no more than [8,750] words.” N.C.R. App. P. 28(j), (j)(2). Finally, but
certainly not least, Plaintiff did not timely file the record on appeal within the fifteen-
day period prescribed under Rule 12(a).2
Given their nature and striking quantity, we conclude that these appellate
rules violations are so “gross” and “substantial” so as to warrant sanctions under
Rules 25 and 34 of the North Carolina Rules of Appellate Procedure. See, e.g., Tabor
v. Kaufman, 196 N.C. App. 745, 746-47, 675 S.E.2d 701, 702-03, disc. review denied,
363 N.C. 381, 679 S.E.2d 836 (2009). We must therefore “determine which, if any,
sanction under Rule 34(b) should be imposed.” Dogwood, 362 N.C. at 201, 657 S.E.2d
at 367. We conclude that Plaintiff’s violations are so egregious as to warrant
dismissal of his appeal.
Quite frankly, this Court was left dumbfounded as to the pertinent facts and
issues of the instant case even after a complete and thorough reading of Plaintiff’s
brief. Plaintiff has completely failed to provide meaningful procedural and factual
background information, leaving this Court to make its own “voyage of discovery
through the record” in order to glean for ourselves the relevant circumstances
2 Plaintiff served the proposed record on appeal upon Defendant on 23 April 2018. Plaintiff’s proposed record on appeal then became the record on appeal on 23 May 2018 by operation of Rule 11(b). Plaintiff was therefore required to file the record on appeal with this Court on or before 7 June 2018 in order to comply with Rule 12(a). Plaintiff did not file the record on appeal until 13 June 2018.
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underlying his appeal. Pers. Earth Movers, Inc., 182 N.C. App. at 331, 641 S.E.2d at
752. This we will not do. Nor will we accept the additional delegation of Plaintiff’s
responsibility to research his grounds for appellate review and, assuming that such
grounds exist, the standards of review that apply. Of particular implicit concern in
the appellate rules is a regard for the already exhaustive catalog of responsibilities
that this Court must necessarily undertake. And where not flagrant by virtue of their
substance, Plaintiff’s remaining violations of the appellate rules supplant the overall
egregiousness by virtue of their quantity. We have considered sanctions permitted
under Rule 34(b) other than dismissal. However, in a case such as this, and in order
to ensure better compliance with the appellate rules, we conclude that dismissal is
appropriate and justified.
Finally, we must determine whether to invoke Rule 2 and review the merits of
the instant appeal despite Plaintiff’s gross violations of the appellate rules. Dogwood,
362 N.C. at 201, 657 S.E.2d at 367.
“Appellate Rule 2 has most consistently been invoked to prevent manifest
injustice in criminal cases in which substantial rights of a defendant are affected.”
Selwyn Vill. Homeowners Ass’n., 186 N.C. App. at 650, 651 S.E.2d at 912. This is not
such a case. Cf., e.g., State v. Castaneda, 196 N.C. App. 109, 115, 674 S.E.2d 707, 711
(2009) (invoking Rule 2 and reviewing the merits of the defendant’s appeal despite
substantial appellate rules violations because it would have been “manifestly unjust”
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to ignore the defendant’s argument as he “face[d] life imprisonment and [made] a
compelling argument that the trial court’s error prejudiced him”). As best we can tell
from parsing the record on appeal, the order from which Plaintiff appeals appears to
have required Plaintiff to pay to his ex-wife the alleged damages and attorney’s fees
that resulted from his year-long refusal to abide by the terms of the parties’ Consent
Judgment. We conclude that nothing inherent in these circumstances indicates the
exceptionality or manifest injustice necessary to justify suspending the appellate
rules in order to reach the merits of Plaintiff’s appeal. Therefore, in the exercise of
our discretion, we decline to invoke Rule 2.
Accordingly, the instant appeal is dismissed.
APPEAL DISMISSED.
Judge BRYANT concurs.
Judge DILLON dissents by separate opinion.
-9- No. COA18-600 – Ramsey v. Ramsey
DILLON, Judge, dissenting.
In this appeal, Appellant Gary P. Ramsey (“Husband”) appeals from an order
finding him in civil contempt for failing to immediately file a Qualified Domestic
Relations Order (“QDRO”) as required by a consent judgment (“Consent Judgment”)
entered between him and his ex-wife Kalley Elizabeth Ramsey (“Wife”). I agree with
the majority that Husband has committed a number of non-jurisdictional errors in
his brief on appeal that may warrant sanctions. However, for the reasons stated
below, I disagree with the majority that these errors rise to the level of warranting
dismissal of the appeal and, therefore, would reach the merits of Husband’s
arguments. Based on my review of Husband’s arguments, I would affirm in part and
reverse in part the order of civil contempt.
I. Background
In May 2015, Husband filed this action seeking divorce from Wife and
equitable distribution of their marital assets. In August 2016, the trial court entered
a Consent Judgment, which required Husband to file a QDRO to cause the rollover
of $14,500 from Husband’s 401(k) to Wife:
[Husband] shall pay $29,000.00 distributive award to [Wife]; [Half] to be paid at time of refinance of Narrows Court mortgage and [half] to be rolled over from [Husband’s] NC 401(k) account. Counsel for [Husband] shall immediately draft [“QDRO”] to effectuate said roll-over to [Wife] as soon as possible.
(Emphasis added). RAMSEY V. RAMSEY
DILLON, J., dissenting.
Five months later, in December 2016, Wife filed a Motion for Contempt as
Husband had failed to timely comply with this provision.
Ten months later, in October 2017, Husband finally filed the QDRO, as
required by the Consent Judgment. And in December 2017, the QDRO was approved
by Husband’s plan administrator, and $14,500 was transferred from Husband’s
401(k) to Wife.
Notwithstanding Husband’s eventual compliance with the Consent Judgment,
in February 2018, after conducting a hearing on Wife’s contempt motion, the trial
court entered a Contempt Order which essentially did three things: (1) it held
Husband in civil contempt; (2) it awarded Wife damages in the amount of $1,268.68,
representing the interest Wife lost for the 14-month delay by Husband in transferring
to her the $14,500 from his 401(k); and (3) it ordered Husband to pay Wife’s attorney’s
fees in the amount of $2,000. Husband timely appealed to our Court.
II. Non-Compliance with the Rules of Appellate Procedure
As noted by the majority, compliance with the North Carolina Rules of
Appellate Procedure is mandatory. Dogwood Dev. & Mgmt. Co. v. White Oak Transp.
Co., 362 N.C. 191, 194, 657 S.E.2d 361, 362 (2008). Thus, our Court may sanction a
party if he fails to comply with these Rules. Id. at 199, 657 S.E.2d at 366; N.C. R.
App. P. 25(b). However, our Supreme Court has advised that our Court, in cases of
noncompliance with non-jurisdictional requirements, “should simply perform its core
2 RAMSEY V. RAMSEY
function of reviewing the merits of the appeal to the extent possible.” Id. Indeed,
Rule 34(b) provides a list of sanctions a court may impose and, in most situations,
“[our Court] should impose a sanction other than dismissal and review the merits of
the appeal.” Dogwood at 200, 657 S.E.2d at 366; N.C. R. App. P. 34(b).
Here, I do not believe that Husband’s non-jurisdictional errors prevent us from
our ability to understand Husband’s appeal. For instance, even though Husband’s
brief only contains “Argument” sections (omitting factual and procedural background
sections, etc.), his first argument does commence by describing exactly what he is
appealing: “The trial court found Plaintiff in civil contempt for failure to immediately
file a [QDRO].” And the arguments in the brief clearly describe why Husband
believes the trial court erred in entering its Contempt Order. As there are several
other sanctions available, I believe that, based on Dogwood, dismissing Husband’s
appeal is not warranted. Accordingly, I believe it is appropriate to address the merits
of Husband’s appeal, which I do, below.
III. Civil Contempt Order
A. Civil Contempt
Husband argues that the trial court erred in holding him in civil contempt, as
he had already complied with the Consent Judgment before the Contempt Order was
entered. I agree.
3 RAMSEY V. RAMSEY
The trial court held Husband in civil contempt for “failure to abide by the
Judgment provision that he immediately file a Qualified Domestic Relations Order[.]”
The purge condition, though, did not require Husband to file a QDRO, as he had
already done so. Rather, the trial court erroneously required Husband to pay Wife
damages for lost interest as a purge condition.
Civil contempt is proper where a party fails to comply with an order of the
court and “(1) [t]he order remains in force; (2) [t]he purpose of the order may still be
served by compliance with the order; (2a) [t]he noncompliance by the person to whom
the order is directed is willful; and (3) [t]he person to whom the order is directed is
able to comply with the order or is able to take reasonable measures that would
enable the person to comply with the order.” N.C. Gen. Stat. § 5A-21(a) (2016); see
O’Briant v. O’Briant, 313 N.C. 432, 434-35, 329 S.E.2d 370, 372-73 (1985). Our
Supreme Court has held that civil contempt “is not a form of punishment; rather, it
is a civil remedy to be utilized exclusively to enforce compliance with court orders.”
Jolly v. Wright, 300 N.C. 83, 92, 265 S.E.2d 135, 142 (1980). It follows that civil
contempt is only proper where one is currently not in compliance with a court order.
See id.; see also Ruth v. Ruth, 158 N.C. App. 123, 126, 579 S.E.2d 909, 912 (2003)
(holding that a court “does not have the authority to impose civil contempt after an
individual has complied with a court order, even if the compliance occurs after the
4 RAMSEY V. RAMSEY
party is served with a motion to show cause why he should not be held in [civil]
contempt of court.”).
In the present case, Husband, while late, did comply with the Consent
Judgment. And there was nothing in the Consent Judgment which required him to
pay lost interest. Therefore, there was no ground for the trial court to hold Husband
in civil contempt at the time the Contempt Order was entered. See id. I would vacate
that portion of the trial court’s Contempt Order holding Husband in civil contempt.
B. Damages
Husband argues that the trial court exceeded its authority by ordering him to
pay Wife damages in the context of a contempt proceeding. Again, I agree.
North Carolina takes the minority position that damages are not appropriate
in a contempt proceeding. See Hartsell v. Hartsell, 99 N.C. App 380, 391, 393 S.E.2d
570, 577 (1990), aff’d, 328 N.C. 729, 403 S.E.2d 307 (1991); accord Elliott v. Burton,
19 N.C. App 291, 295, 198 S.E.2d 489, 491 (1973) (stating that “even then the trial
judge in this State has no authority to award indemnifying fines or other
compensation to a private party in a contempt proceeding”). Thus, I would vacate
that portion of the trial court’s Contempt Order awarding Wife $1,268.68 in lost
interest. Wife may have a remedy, perhaps through a motion in the equitable
distribution proceeding, to seek relief for Husband’s behavior; however she may not
do so through a contempt motion.
5 RAMSEY V. RAMSEY
C. Attorney’s Fees
Husband argues that the trial court exceeded its authority by awarding Wife
attorney’s fees. I disagree.
Attorney’s fees are generally not available in a civil contempt proceeding
unless the moving party prevails. Ruth v. Ruth, 158 N.C. App. 123, 127, 579 S.E.2d
909, 912 (2003). However, our Court has held that, “in the limited situation where
contempt fails because the alleged contemnor complies with the previous orders after
the motion to show cause is issued and prior to the contempt hearing, an award of
attorney's fees is proper.” Id. Thus, in this case, even though Husband complied with
the Consent Judgment prior to the entry of the Contempt Order, thereby eliminating
the court’s ability to hold him in contempt and award Wife damages, the trial court
could and did award Wife attorney’s fees. Id. Therefore, my vote is to affirm that
portion of the Contempt Order.3
IV. Conclusion
My vote is to affirm the portion of the Contempt Order awarding wife
attorney’s fees but to reverse the remainder of that Order.
3I note Husband’s argument that the trial court’s findings are not supported by competent evidence. However, Wife’s contempt motion was verified by Wife, and Wife’s attorney filed an affidavit regarding attorney’s fees. I conclude that the trial court’s award of attorney’s fees is supported by the evidence that was before the trial court.