Timing, as they say, is everything, and if you are appealing an Order in North Carolina, this is particularly true. Slaughter v. Slaughter, No. COA16-1153 was decided by the North Carolina Court of Appeals on July 18, 2017. While there were multiple issues on appeal, the issue that sticks out is the timing and issues allowed on cross-appeal.
Cross-appeals are not a rarity. However, the Court had an issue of first impression on whether a cross-appeal should have been dismissed by the trial court. In Slaughter v. Slaughter, the trial court entered an Order Equitable Distribution on March 31, 2016, and Orders on Child Support, and Alimony on April 1, 2016. The husband filed a Notice of Appeal from the Alimony and Equitable Distribution Orders on April 25, 2016, within the thirty-day window for filing.
Wife filed a Notice of cross-appeal on May 3, 2016, from the Child Support Order and the Equitable Distribution Order. While Wife was within the ten-day window for filing a cross-appeal, Husband filed a Motion to Dismiss her cross-appeal regarding the Child Support Order. Husband argued that the ten-day window for filing a cross-appeal under NC Rule of Appellate Procedure 3(c) should not apply as Husband did not appeal the child support order. Husband’s Motion to Dismiss was denied by the trial court, which Husband appealed.
Husband’s argument on Appeal is that firstly, Wife was outside of the thirty-day window to appeal the Child Custody Order, and secondly, that since Husband had not appealed from the child custody order in his timely appeal, Wife should not be allowed to cross-appeal the Child Support Order. It was a matter of first impression if a Notice of Appeal is limited to only the Order specifically designated in the Notice, where a single proceeding has resulted in multiple Orders. It was also a matter of first impression if a cross-appeal is similarly limited to only the Order specified in the original Notice.
The Court of Appeals turned to the decision of Surratt v. Newton, 99 N.C. App. 396 (1990) for guidance. In Surratt, the Court faced a similar issue under Rule 3(c). The case of Surratt had two Defendants, Paul Newton and Jerry Newton. When the trial court found in favor of the Plaintiff Katherine Surratt, Paul Newton filed a notice of appeal within the permitted timeframe. Jerry Newton, the second defendant, filed a notice of cross-appeal which contemplated different issues than those contained in Paul Newton’s appeal. The Court of Appeals relied on the language of Surratt that “Rule 3(c) merely contemplates an additional, extended period for a response only from other parties to that same appeal.”
While in the instance of Slaughter there was only a single proceeding which produced the multiple orders, the Court noted that an appeal is not taken from the proceeding itself, but rather from an individual Order or Judgment.
Ultimately the Court found that on cross-appeal, the cross-appellant is limited to only those issues designated in the original Notice of Appeal once the 30-day window for appealing has passed. The Court cautions that it is better practice for those considering an appeal to act promptly within the thirty-day window for appealing. It is a gamble to assume that opposing counsel will address all of the Orders from which they wish to appeal. The Court also points out that parties can subsequently voluntarily dismiss their appeals if needed, but there is no way to recapture that right to appeal once the thirty-day window has closed and opposing counsel has not appealed the order.
Jennifer A. Crissman, Attorney, Woodruff Family Law Group