Opinion
No. 899DC887
Filed 5 June 1990
Appeal and Error 205 (NCI4th) — notice of appeal — not timely Plaintiff failed to give timely notice of appeal and the merits of his contention were not considered where a district court judge held in open court on 17 January 1989 that he was giving a Washington State child custody order full faith and credit and that he would not modify the custody arrangement; that announcement constituted entry of the court's order for the purposes of determining when notice of appeal had to be given; it was necessary for plaintiff to give notice of appeal within 10 days after 17 January 1989; and plaintiff did not give notice until 6 April 1989.
Am Jur 2d, Appeal and Error 316.
APPEAL by plaintiff from Wilkinson (Charles W., Jr.), Judge. Order entered 17 January 1989 in District Court, PERSON County. Heard in the Court of Appeals 2 April 1990.
John W. Lunsford for plaintiff, appellant.
Nancy McKenzie Kizer and J. Kevin Moore for defendant, appellee.
Judge PARKER dissenting.
In this civil action, plaintiff seeks modification of a Washington State order giving defendant custody of the parties' two minor children. On 17 January 1989, the district judge entered an order in open court giving the Washington State order full faith and credit in North Carolina. He then ruled that there was no change in circumstances sufficient to justify changing the custody arrangement. Plaintiff appealed.
Plaintiff argues on appeal that the district judge abused his discretion by failing to modify the Washington State custody order because of "substantial and material changes in circumstances" affecting the welfare of the children. We do not even consider the merits of this contention, however, because plaintiff failed to give timely notice of appeal from the district judge's order as required by G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure.
G.S. 1-279 (c) and Appellate Rule 3 (c) clearly provide that written notice of appeal from a judgment or order of a superior or district court must be given within 10 days of entry of said judgment or order. Failure to do so is a jurisdictional flaw which requires dismissal of the appeal. Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 301 S.E.2d 98 (1983). Furthermore, the date of entry of judgment "does not depend on the date of formal signing or filing, but instead depends upon the date when oral notice of the judgment is given in open court." Patel v. Mid Southwest Electric, 88 N.C. App. 146, 148, 362 S.E.2d 577, 578 (1987), disc. rev. denied, 322 N.C. 326, 368 S.E.2d 868 (1988) (citations omitted).
In the present case, the district judge announced in open court on 17 January 1989 that he was giving the Washington State order full faith and credit and that he would not modify the custody arrangement. That announcement constituted entry of the court's order for the purpose of determining when notice of appeal had to be given. It was therefore necessary for plaintiff to give notice of appeal within 10 days after 17 January 1989. Because he did not give notice until 6 April 1989, this Court has no jurisdiction to consider plaintiff's appeal.
Appeal dismissed.
Judge COZORT concurs.
Judge PARKER dissents.