{
  "id": 8525280,
  "name": "LEONARD P. WARD, Plaintiff v. WYNONA N. WARD, Defendant",
  "name_abbreviation": "Ward v. Ward",
  "decision_date": "1994-10-18",
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  "last_updated": "2023-07-14T22:38:55.005039+00:00",
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    "judges": [
      "Chief Judge ARNOLD and Judge THOMPSON concur."
    ],
    "parties": [
      "LEONARD P. WARD, Plaintiff v. WYNONA N. WARD, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nThis case has a somewhat laborious procedural history involving a myriad of motions and notices of appeal by plaintiff. However, the issue presented by this appeal concerns only the jurisdiction of Mecklenburg County District Court Judges Robert P. Johnston and H. William Constangy to enter a judgment for equitable distribution and an order for permanent alimony respectively.\nThe facts relevant to this appeal are as follows: On 10 December 1986, plaintiff instituted a complaint for absolute divorce and equitable distribution against defendant. Defendant answered, asserting a counterclaim for alimony pendente lite, permanent alimony, attorneys\u2019 fees, sequestration of certain marital assets, absolute divorce and equitable distribution. The parties were granted an absolute divorce by judgment entered 8 June 1987. Hearings with respect to equitable distribution of the parties\u2019 marital assets were conducted on 7-9 June 1988, 13-16 June 1989, 5 February 1990 and 3 May 1990 during the regularly scheduled civil domestic non-jury sessions of Mecklenburg County District Court before Judge Johnston. On 31 December 1990, Judge Johnston, who was assigned to a one day criminal session of court, entered an equitable distribution order and judgment. Consent had not been given by counsel for either party for Judge Johnston to sign the judgment out of session, and this case was not otherwise scheduled before him on that date.\nPlaintiff filed a notice of appeal from the equitable distribution order, but later dismissed the appeal. Plaintiff also filed several motions to hold defendant in contempt for violation of the order, all of which were denied. Plaintiff then filed a motion pursuant to G.S. \u00a7 1A-1, Rule 52 to amend the findings of fact in the order; that motion was denied. At no time, however, did plaintiff challenge Judge Johnston\u2019s jurisdiction to enter the equitable distribution order until 29 July 1993, when he filed a motion to set the order aside.\nOn 16-17 April 1991, Judge H. William Constangy conducted an alimony hearing at the duly scheduled 15 April 1991 domestic session of Mecklenburg County District Court. The parties further argued the issue of alimony on 28 July 1992 during a regularly scheduled session of district court. No order for alimony was entered at either session, nor was the session continued, and neither parties\u2019 counsel consented to an entry, out of session, of an order resolving the issue of alimony. On 4 November 1992, based upon a previous draft order submitted by defendant, Judge Constangy, out of session, entered an order and judgment for alimony.\nSubsequent to entry of the alimony order, plaintiff filed a motion for relief pursuant to Rules 52(b), 59 and 60, a notice of appeal from the permanent alimony order, and a notice of appeal from the denial of the motion. Both appeals were dismissed for plaintiff\u2019s failure to timely file with this Court a settled record on appeal. Again, at no time did plaintiff challenge the validity of the entry of the alimony order until 23 April 1993, when plaintiff filed a motion to set aside the alimony order on the ground that Judge Constangy lacked jurisdiction to enter such an order.\nOn 16 August 1993, plaintiffs motions to set aside the equitable distribution and permanent alimony orders and judgments were denied. Plaintiff appealed.\nPlaintiffs sole contention on appeal is that Judge Johnston and Judge Constangy lacked subject matter jurisdiction to enter the equitable distribution judgment and permanent alimony order respectively because both were entered out of session. We disagree.\nInitially, we observe that plaintiff has waived his right to challenge the validity of both orders on the grounds asserted, because he could have presented the same challenges in his initial appeals which were dismissed. In Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984), we specifically considered the effect of a dismissed appeal on a later appeal questioning a trial court\u2019s exercise of subject matter jurisdiction to enter an order. In Sloop, the district court, pursuant to the Uniform Child Custody Jurisdiction Act, G.S. \u00a7 50A-1 et seq., entered a child custody and support order against Friberg. Id. at 692, 320 S.E.2d at 923. Friberg appealed, but later withdrew the appeal, and two years later Friberg sought a change of custody alleging a change of circumstances. Id. at 693, 320 S.E.2d at 923. His motion was denied, and he appealed, challenging the district court\u2019s subject matter jurisdiction to enter the original order. Id. We noted.that \u201cthe question of subject matter jurisdiction may be raised at any point in the proceeding, and that such jurisdiction cannot be conferred by waiver, estoppel or consent.\u201d Id. at 692-93, 320 S.E.2d at 923. However, we found that because plaintiff had withdrawn his initial appeal and acquiesced in the judgment for several years, he had failed to preserve his objection. Id. at 693, 320 S.E.2d at 923.\nSimilarly, in the case sub judice, plaintiff appealed from the equitable distribution order and judgment, which he later voluntarily dismissed on 15 February 1991. Since that dismissal, he has accepted the benefits of said judgment. Plaintiff also filed two notices of appeal from the permanent alimony order. Because plaintiff failed to file the settled record in both appeals within the prescribed time limit, said appeals were dismissed by Judge Constangy at the 16 August 1993 hearing. Accordingly, he has failed to preserve his objection to the entry of both orders.\nEven if plaintiff had preserved the question for review, his contentions are without merit. The recent decision of our Supreme Court in Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 446 S.E.2d 289 (1994) is dispositive. In Capital Outdoor Advertising, a superior court judge entered an order out of session dismissing plaintiff advertising companies\u2019 complaint. Id. at 153, 446 S.E.2d at 291. The Court found nothing in the record of the trial court to indicate that the judge \u201cextended the ... session pursuant to N.C.G.S. \u00a7 15-167 or that the parties or their attorneys consented to entry of the order of dismissal in a session of court other than the session in which the motion was heard.\u201d Id. at 154, 446 S.E.2d at 292. Noting that the Supreme Court has \u201ccontinuously recognized the authority of the legislature to provide by statute for the transaction of business in the superior court out of term and out of county,\u201d the Court held that \u201cthe rule [G.S. \u00a7 1A-1, Rule 6(c)] clearly allows a superior court judge to sign a written order out of session without the consent of the parties so long as the hearing to which the order relates was held in term.\u201d Id. at 156 and 158, 446 S.E.2d at 293 and 294.\nPlaintiff attempts to distinguish Capital Outdoor Advertising on the sole ground that it involved a judgment rendered in the superior court division of the General Court of Justice of North Carolina, while the present case involves rulings made in the district court division. However, because we believe it sound policy that the same rules apply to judgments and orders of both trial divisions and because we find statutory authority to do so, we deem it appropriate to apply the holding set forth in Capital Outdoor Advertising to the case sub judice.\nThe General Assembly has specifically conferred on the district-court division subject matter jurisdiction over domestic relations cases. N.C. Gen. Stat. \u00a7 7A-244. It is the duty of the chief district court judge, among other things, to set the schedules of the district court judges by assigning them to sessions of district court, and to arrange the calendaring of noncriminal matters for trial or hearing. Schumacher v. Schumacher, 109 N.C. App. 309, 311, 426 S.E.2d 467, 468 (1993); N.C. Gen. Stat. \u00a7 7A-146(1), (2). Pursuant to G.S. \u00a7 7A-190,\n[t]he district courts shall be deemed always open for the disposition of matters properly cognizable by them. But all trials on the merits shall be conducted at trial sessions regularly scheduled as provided in this Chapter.\nFurthermore, G.S. \u00a7 1A-1, Rule 6(c) provides:\n[t]he period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a session of court. The continued existence or expiration of a session of court in no way affects the power of a court to do any act or take any proceeding, but no issue of fact shall be submitted to a jury out of session.\nThe foregoing statutes, considered together, lead us to the conclusion that a district court judge has the authority to enter an order and judgment out of session as long as the trial on the merits, to which the judgment or order relates, was conducted at a regularly scheduled trial session. Judge Johnston and Judge Constangy conducted hearings on equitable distribution and permanent alimony during their respective assigned sessions of domestic court. Thus, both judges had subject matter jurisdiction to enter their orders and judgments after the expiration of their respective sessions.\nAffirmed.\nChief Judge ARNOLD and Judge THOMPSON concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Joe T. Millsaps for plaintiff-appellant.",
      "Edward P. Hausle for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "LEONARD P. WARD, Plaintiff v. WYNONA N. WARD, Defendant\nNo. 9326DC1175\n(Filed 18 October 1994)\n1. Appeal and Error \u00a7 147 (NCI4th)\u2014 lack of subject matter jurisdiction \u2014 failure to raise on initial appeal \u2014 waiver\nPlaintiff waived his right to challenge the validity of equitable distribution and permanent alimony orders on the ground that the trial judges lacked subject matter jurisdiction, since plaintiff could have presented the same challenges in his initial appeals which were dismissed, and, following those dismissals, he accepted the benefits of those judgments.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 545 et seq.\n2. Judgments \u00a7 38 (NCI4th)\u2014 order entered out of session\u2014 when permissible\nA district court judge has the authority to enter an order and judgment out of session as long as the trial on the merits, to which the judgment or order relates, was conducted at a regularly scheduled trial session.\nAm Jur 2d, Judgments \u00a7\u00a7 79, 81.\nAppeal by plaintiff from orders entered 16 August 1993 by Judge H. William Constangy in Mecklenburg County District Court. Heard in the Court of Appeals 31 August 1994.\nJoe T. Millsaps for plaintiff-appellant.\nEdward P. Hausle for defendant-appellee."
  },
  "file_name": "0643-01",
  "first_page_order": 673,
  "last_page_order": 677
}