Opinion
No. 05-91.
Filed 15 November 2005.
Buncombe County No. 01 CVD 4759.
Appeal by defendant from order entered 28 September 2004 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 21 September 2005.
No brief filed for the plaintiff-appellee. William E. Loose, for defendant-appellant.
Debra Vetere ("plaintiff") and John Lepanto ("defendant") entered into a separation agreement on 29 November 1999. At the time of the couple's separation, they had three minor children. The unincorporated separation agreement included child support provisions that provided defendant would pay $1,000.00 per month in child support, one-half of the medical or dental expenses not paid in full by insurance for the children, and that he would contribute 9% of his income per child for each child's college education. On 11 September 2001, plaintiff filed a complaint seeking specific performance of the separation agreement, specifically the child support provisions. On 16 November 2001, the trial court ordered defendant to pay child support to plaintiff pursuant to the North Carolina Child Support Guidelines and the parties' separation agreement, and that if the parties returned to the visitation and custody schedule as provided in the separation agreement, defendant was to pay plaintiff $1,000.000 per month in child support. On 1 February 2002, the court entered an order finding that defendant had failed to comply with the child support order, and was now in arrears. Defendant was ordered to pay the amount of arrearage, and to continue making child support payments of $1,000.00 per month, which were to be garnished from his wages.
Defendant filed a Motion and Notice of Hearing for Modification of Child Support Order on 15 January 2004, seeking a modification based on the fact that his oldest son was now eighteen years old and was in college full-time. Plaintiff filed a Motion in the Cause on 21 May 2004, seeking to enforce the separation agreement and the prior court orders, and she also sought attorney's fees. On 28 September 2004, the trial court addressed both parties' motions. The trial court's order made specific findings of fact concerning: prior court orders regarding the separation agreement; the eldest son's college expenses and both parties' contribution to said expenses; both parties' incomes; defendant's payment history; and the reasonable needs of the two remaining minor children. The court then ordered defendant, inter alia, to pay a specific amount towards his son's outstanding college loan obligation, to pay $1,000.00 per month for the remaining two minor children, to reimburse plaintiff in a specific amount for medical and dental expenses, and to reimburse plaintiff for her attorney's fees. From this order, defendant appeals.
Without reaching a decision on the merits of defendant's appeal, we first must address the fact that defendant has failed to comply with the North Carolina Rules of Appellate Procedure. A "failure to follow [the] rules will subject an appeal to dismissal." Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999) (citing Jim Walter Corp. v. Gilliam, 260 N.C. 211, 132 S.E.2d 313 (1963)). Therefore, we decline to reach the merits of this case and we dismiss defendant's appeal. In his brief, defendant argues only seven of the nine assignments of error he sets forth in his record on appeal. In their totality, they read as follows:
2. The trial court erred when it failed to use the North Carolina Child Support Guidelines and proper procedures to set child support in this case.
3. The trial court erred when it failed to make appropriate findings which would have allowed the trial court to either deviate from the guidelines or fail to use the guidelines in this case.
4. The trial court erred when it failed to use the appellant's income to determine the appropriate amount of child support.
5. The trial court erred when it failed to use the appellant's income or any other facts and circumstances to determine a proper amount of child support even if the proper standard was the just and reasonable needs of the children rather than the North Carolina Child Support Guidelines.
6. The trial court's finding of fact number 5 is not supported by the record and the Order of November 16, 2001 can not form the basis for enforcing the terms of the parties' separation agreement.
. . . .
8. The trial court erred in awarding plaintiff attorney fees.
9. The trial court erred when it failed to modify the appellant's child support obligation based on substantial change in circumstances.
Our Rules of Appellate Procedure clearly define limitations concerning what we may address in a case before us. Rule 10(a) provides that our "scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10." N.C.R. App. P. 10(a) (2005). Rule 10 further provides that:
Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.
N.C.R. App. P. 10(c)(1) (2005) (emphasis added). As noted supra, defendant's assignments of error fail to set out any specific references to the record or to any transcript pages. In addition, defendant fails to comply with the rule's requirement that he set forth the legal basis for each assignment of error, as only allegations of error on the part of the trial court are set forth in assignments 2, 3, 4, 5, 6, and 8. It is not this court's role "to create an appeal for an appellant." Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (per curiam), reh'g denied, ___ N.C. ___, 617 S.E.2d 662 (2005).
Moreover, our Rules of Appellate Procedure also clearly set forth the format to which an appellant's brief must adhere. Rule 28(a) discusses the purpose of one's brief, and provides that "[t]he function of all briefs required or permitted by these rules is to define clearly the questions 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) (2005). Rule 28 further details the content which should be included in an appellant's brief, and provides that:
Immediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal. 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.
N.C.R. App. P. 28(b)(6) (2005) (emphasis added). In the present case, defendant set out three distinct questions in the argument section of his brief. Each question referenced assignments of error in the record, however, none of the questions referenced any pages in the record on appeal. Again, defendant's omission clearly constitutes a violation of our Rules of Appellate Procedure. Our Supreme Court recently has reiterated the fact that the Rules of Appellate Procedure "must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule." Viar, 359 N.C. at 402, 610 S.E.2d at 361. Based on the Supreme Court's holding in Viar, the need for consistent application of our Rules of Appellate Procedure and defendant's numerous violations of the rules, we dismiss defendant's appeal.
Appeal dismissed.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).