Opinion
No. COA11–1268.
2012-05-15
Susan THOMPSON, fka, Susan Letendre, Plaintiff, v. Clem LETENDRE, Defendant.
Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Benjamin D. Overby, for plaintiff. No brief filed for defendant.
Appeal by plaintiff from order entered 6 April 2011 by Judge Bradley Reid Allen, Sr., in Alamance County District Court. Heard in the Court of Appeals 23 February 2012. Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Benjamin D. Overby, for plaintiff. No brief filed for defendant.
ELMORE, Judge.
Susan Thompson (plaintiff) appeals from a Rule 60 order granting relief to Clement A. Letendre (defendant) from a child custody and support order. Because plaintiff's appeal is interlocutory, we must dismiss it without ruling on the merits.
The parties were married with one child who was a minor at the time of these proceedings. The parties separated in March 2008, and the child lived with plaintiff, who filed an action for custody in September 2008. The first child custody and support order was not entered until 15 March 2011, when the district court ordered defendant to pay plaintiff $991.00 per month in child support. The obligation was retroactive to 1 October 2008, meaning defendant was in $29,721.00 in arrears to plaintiff. The order also granted defendant weekend visitation and ordered him to pay $2,000.00 on his child support arrearage each month.
On 18 March 2011, defendant filed a Rule 60 motion for relief, asserting that he had not received any notice to be at the child custody and support hearing on 7 March 2011, and thus he had not attended and had been deprived of the opportunity to present evidence at the hearing. On 6 April 2011, the trial court granted defendant's motion, finding that defendant's failure to attend the hearing was excusable neglect. Plaintiff now appeals, arguing that the trial court abused its discretion by granting defendant's motion.
Plaintiff's appeal, from an order allowing a Rule 60(b)(1) motion, is interlocutory. Bradley v. Bradley, 206 N.C.App. 249, 253, 697 S.E.2d 422, 425 (2010). This Court addressed a similar case in Braun v. Grundman, in which the plaintiff “purport[ed] to appeal from an order setting aside a judgment as having been entered upon surprise and excusable neglect.” 63 N.C.App. 387, 388–89, 304 S.E.2d 636, 637 (1983) (citation omitted). There, we held that “[a]ppeals from such orders must be dismissed as interlocutory.” Id. (citations omitted). This is because the only effect of the Rule 60 order is to require plaintiff to face another hearing on the merits, and “[t]he right to avoid one trial on the disputed issues is not normally a substantial right that would allow an interlocutory appeal.” Metcalf v. Palmer, 46 N.C.App. 622, 624, 265 S.E.2d 484, 485 (1980) (citation omitted). Accordingly, we dismiss plaintiff's appeal as interlocutory.
Dismissed. Judge STEELMAN concurs.
Judge STROUD concurs by separate opinion.
Report per Rule 30(e). STROUD, Judge, concurring.
Although I concur with the majority that we have no choice but to dismiss this appeal as interlocutory, in accordance with Braun v. Grundman, 63 N.C.App. 387, 304 S.E.2d 636 (1983), I write this concurring opinion because the same admonition is applicable here as this Court made in Braun, as follows:
Although we need not here address the propriety of the trial court's action in setting aside the judgment on the grounds of mistake, inadvertence, surprise and excusable neglect, we note that a party is not “surprised” merely when he is alarmed by an action taken by the court, nor merely when he has an erroneous view of the law. Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422 (1945); Endsley v. Supply Corp., 44 N.C.App. 308, 261 S.E.2d 36 (1979). Furthermore, a party's voluntary action may estop him from seeking relief from a judgment on the grounds of mistake or excusable neglect. Wright & Miller, Federal Practice & Procedure: Civil § 2858. A party who makes an informed choice as to a particular course of action will not be relieved of the consequences when it subsequently develops that the choice was unfortunate. 7 Moore's Federal Practice § 60.22[2].
Id. at 388–89, 304 S.E.2d at 637.
In Braun, the defendant's basis for his request for relief was that
he had not been represented by counsel at the trial de novo and that he had been prevented from introducing certain evidence because of his lack of legal knowledge. He also claimed that the magistrate had led defendant “to believe that he would not need an attorney to present this defense” in district court.
Id. at 388, 304 S.E.2d at 637. Here, the record indicates that defendant did not have notice of the 7 March 2011 hearing (upon which the 15 March 2011 child support order was based) only because he (1) failed to inquire as to the new court date which was set upon his own request for continuance of the hearing set for 21 February 2011, which was in fact continued to 7 March 2011 and (2) failed to check his mailbox because he was “out of town” when the properly-served order and calendar request came in the mail. On 21 February 2011, the trial court continued the properly-scheduled child support hearing upon defendant's request, noting as follows in the continuance order:
It appearing to the Court that this matter was duly calendared for a hearing for child custody and child support and that counsel for Plaintiff was present and prepared to proceed with the hearing. It appearing to the Court that the Defendant filed on his behalf February 11, 2011 a “Requested Leave” notifying the Court that he would not be available during the week of February 21, 2011 “as the Defendant will be out of town.” The Court notes that this is the second time the Defendant has filed a requested leave for the week Plaintiff had calendared the child custody and child support matter for hearing. The Defendant was not present, and the Plaintiff was unable to proceed with the scheduled hearing.
The Court then ordered that “this matter is continued until 9:30 a.m., March 7, 2011, at which time the parties shall appear before the presiding Judge for hearing on Plaintiffs motion for child custody and child support” and that defendant produce certain documentation regarding his income and employment at that time. This order was served upon defendant by mail on 22 February 2011 in accordance with N.C. Gen.Stat. § 1A–1, Rule 5(b)(2). In addition to the order, plaintiff's counsel also served defendant on 21 February 2011 by mail with a copy of the calendar request for the 7 March 2011 hearing.
In its ruling upon defendant's motion to set aside the child support order, the trial court found as follows:
That the Defendant left for Florida February 15th 2011 to find work and was not made aware or notified of the March 7th 2011 Hearing and/or Orders (2) until Ryan Coble (friend) picked up Defendants [sic] mail from his P.O. Box 1369 Mebane NC 27302, and notified/texted Defendant of its PO Box contents the week of March 14, 2011 and that the Defendant did not come back to NC until April 1st 2011.
The order scheduling plaintiff's claim for child support for hearing and a calendar request were both properly served upon defendant in accordance with N.C. Gen.Stat. § 1A–1, Rule 5(b)(2), specifically by “mailing a copy to the party at the party's last known address[.]” Defendant does not contend that the notice was mailed to the wrong address; he contends only that he neglected to check his mailbox, while knowing that he had just requested continuance of the child support hearing scheduled by plaintiff on 21 February 2011.
For the above reasons, I concur.