{ "id": 8521453, "name": "MARIE S. VON RAMM v. OLAF T. VON RAMM", "name_abbreviation": "Ramm v. Ramm", "decision_date": "1990-06-19", "docket_number": "No. 8914DC701", "first_page": "153", "last_page": "158", "citations": [ { "type": "official", "cite": "99 N.C. App. 153" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "73 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "867", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "236 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627642 ], "year": 1953, "pin_cites": [ { "page": "734", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0731-01" ] }, { "cite": "78 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "238 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612118 ], "year": 1953, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0506-01" ] }, { "cite": "258 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551174 ], "year": 1979, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0269-01" ] }, { "cite": "331 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "736", "parenthetical": "appellant's appeal of the court's denial of appellant's Rule 60 motion to set aside entry of summary judgment did not include appeal of the underlying summary judgment against appellant" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526729 ], "year": 1985, "pin_cites": [ { "page": "120", "parenthetical": "appellant's appeal of the court's denial of appellant's Rule 60 motion to set aside entry of summary judgment did not include appeal of the underlying summary judgment against appellant" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0119-01" ] }, { "cite": "487 U.S. 312", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1775031 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "317", "parenthetical": "footnote omitted" }, { "page": "291", "parenthetical": "footnote omitted" }, { "page": "291", "parenthetical": "overlooking a party's failure to comply with a federal notice of appeal requirement of designating the petitioner's name" } ], "opinion_index": 0, "case_paths": [ "/us/487/0312-01" ] }, { "cite": "318 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "352" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526932 ], "year": 1984, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0701-01" ] } ], "analysis": { "cardinality": 568, "char_count": 11424, "ocr_confidence": 0.756, "pagerank": { "raw": 9.439898518474053e-07, "percentile": 0.9807201114814029 }, "sha256": "09bc6eca29cd2a7e954bf788a0c3e01b2de0e59015f3d6fab3925c0c299aab9e", "simhash": "1:d088afef7b6db342", "word_count": 1835 }, "last_updated": "2023-07-14T22:38:52.620321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "MARIE S. VON RAMM v. OLAF T. VON RAMM" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals the trial court\u2019s 30 January 1989 judgment denying defendant\u2019s motion to set aside a 17 June 1988 judgment relating to child support payments.\nThe record shows that defendant was married to plaintiff when plaintiff filed a complaint for alimony pendente lite, child custody and support in 1984. The trial court entered an order granting plaintiff\u2019s request in 1984, including these conclusions of law:\nBased upon the incomes, estates, and accustomed standard of living of the parties, [defendant] should pay to [plaintiff], to provide her sufficient means whereon to subsist during the pendency of this suit . . . $1,124.00 . . . per month; . . . [defendant] should pay to [plaintiff] as child sup[p]ort the following: . . . $2,959.00 per month . . . [and] $1,835.00 per month, of said sum may be discharged by paying directly, if [defendant] so elects, the current house payment . . . (emphasis added).\nAt the time the court granted defendant\u2019s divorce prayer, plaintiff and two children of the marriage occupied the family residence at 3433 Dover Road.\nDefendant also filed a complaint requesting absolute divorce, which the court granted in 1986, reserving for later resolution the issue of equitable distribution. Trial of equitable distribution matters was in June, 1987, but prior to the court\u2019s entry of judgment, defendant filed a motion in the cause in October, 1987, requesting that the court modify the 1984 child support, alimony and child custody provisions. Plaintiff filed a response to defendant\u2019s motion and moved the court to hold defendant in contempt for failure to comply with the court\u2019s order to pay child school expenses, and plaintiff\u2019s medical and insurance expenses. The court heard argument concerning these motions in March, 1988.\nThe court entered equitable distribution judgment on 25 April 1988, which included a provision awarding plaintiff the house and lot at 3433 Dover Road.\nOn 17 June 1988, the trial court entered its order concerning defendant\u2019s motion to modify and for plaintiff\u2019s motion for contempt, in which it modified the 1984 judgment, reducing defendant\u2019s child support payments somewhat and concluding as matters of law that defendant should pay the expenses plaintiff requested in her contempt prayer and \u201c[e]xcept where modified ... all other Orders governing support and maintenance of the minor children remain in full force and effect.\u201d\nWithin 10 days of entry of this order, defendant filed a Rule 59 motion to set it aside. In December, 1988, the court heard the parties\u2019 argument concerning defendant\u2019s motion to set aside the judgment and plaintiff\u2019s motion for contempt. On 30 January 1989, the court entered an order denying defendant\u2019s motion to set aside and instead of assessing defendant in contempt, ordered him to pay back child support and alimony to plaintiff.\nDefendant gave written notice of appeal on 3 February 1989:\nNow Comes Olap T. VON RAMM, the Defendant in the above captioned matter, through counsel, and hereby gives notice of appeal to the Court of Appeals of North Carolina from the [Judgment] entered on the 30th day of January, 1989, in the District Court of Durham County by The Honorable Richard G. Chaney in regard to issues surrounding the amount and manner of continuing payments of child support.\nIn the settled record on appeal, the parties stipulated that \u201c[n]otice of Appeal from the judgments [of June 1988 and January 1989] was given in a proper and timely fashion.\u201d\nSubsequent to docketing of the record on appeal, plaintiff moved this court to dismiss defendant\u2019s purported appeal from the 17 June 1988 judgment, asserting that defendant had appealed only from the 30 January 1989 judgment denying defendant\u2019s Rule 59 motion.\nThe issues are: (I) whether defendant\u2019s notice of appeal vested this court with jurisdiction to review the 17 June 1988 judgment; (II) whether the parties\u2019 stipulation to a notice of appeal can confer jurisdiction on a reviewing court; and (III) whether the trial court erred in denying defendant\u2019s motion to set aside the June 1988 judgment.\nI\nDefendant contends that the language of his notice of appeal \u201cmade apparent\u201d his intent to appeal from the June 1988 judgment in addition to the January 1989 order. We disagree.\nProper notice of appeal requires that a party \u201cshall designate the judgment or order from which appeal is taken . . .\u201d N.C.R. App. P. 3(d) (Cum. Supp. 1989). \u201cWithout proper notice of appeal, this Court acquires no jurisdiction.\u201d Brooks, Com\u2019r of Labor v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). A court \u201cmay not waive the jurisdictional requirements of [federal appellate] Rules 3 and 4, even for \u2018good cause shown\u2019 under Rule 2, if it finds that they have not been met.\u201d Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L.Ed.2d 285, 291 (1988) (footnote omitted).\nNotice of appeal from denial of a motion to set aside a judgment which does not also specifically appeal the underlying judgment does not properly present the underlying judgment for our review. Chapparal Supply v. Bell, 76 N.C. App. 119, 120, 331 S.E.2d 735, 736 (1985) (appellant\u2019s appeal of the court\u2019s denial of appellant\u2019s Rule 60 motion to set aside entry of summary judgment did not include appeal of the underlying summary judgment against appellant); see also Brooks (notice of appeal from judgment of contempt against appellant did not infer appellant\u2019s intent to appeal from a subsequent judgment dismissing appellant\u2019s counterclaim).\nDespite these principles, we may liberally construe a notice of appeal in one of two ways to determine whether it provides jurisdiction over an apparently unspecified portion of a judgment. First, \u201ca mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can bfe fairly inferred from the notice and the appellee is not misled by the mistake.\u201d Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979), citing 9 Moore\u2019s Federal Practice \u00a7 203.17[2], 3-80-3-82 (2d ed. 1990) (footnotes omitted) (emphasis added). Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the \u201cfunctional equivalent\u201d of the requirement. Torres, at 317, 101 L.Ed.2d at 291 (overlooking a party\u2019s failure to comply with a federal notice of appeal requirement of designating the petitioner\u2019s name) (emphasis added).\nWe determine that this court has jurisdiction to review only appellant\u2019s appeal of the trial court\u2019s January 1989 order, which denies defendant\u2019s Rule 59 motion. On its face, defendant\u2019s notice of appeal fails to specify any other judgment or order. Furthermore, a reader cannot \u2018fairly infer\u2019 from the language of the notice of appeal that appellant intended also to appeal the June 1988 order which underlies defendant\u2019s Rule 59 motion. The January 1989 judgment addressed multiple child support issues, including both defendant\u2019s continuing child support obligations and his past unpaid obligations of child support raised by plaintiff\u2019s motion for contempt. Although defendant\u2019s notice of appeal refers to \u201cissues surrounding the amount and manner of continuing payments of child support,\u201d this language clearly directs this court\u2019s review to the portion of the January 1989 judgment concerning current, rather than past, child support obligations, and it is not the \u2018functional equivalent\u2019 of designating the June 1988 judgment. We decline to adopt a torturous interpretation of the language beyond its obvious purpose of limiting our review to a single child support issue in the 1989 judgment from which defendant appeals. Thus, according to either of the two liberal readings of defendant\u2019s notice of appeal set out above, it failed to give notice of appeal from the June 1988 judgment.\n\u2022 We do not address the issue of whether plaintiff was misled by defendant\u2019s mistaken notice of appeal, since we reach that inquiry only if we can infer that defendant intended to appeal from a judgment not specifically designated.\nII\nDefendant next contends that the parties\u2019 stipulation that notice of appeal from the \u201cjudgments\u201d was \u201ctimely and proper\u201d gives this court jurisdiction to review the June 1988 order. We disagree.\n\u201cJurisdiction is the power of a court to decide a case on its merits . . .\u201d Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953). Appellate Rule 3 requirements for specifying judgments are jurisdictional in nature. Brooks, at 707, 318 S.E.2d at 352. \u201c[Jurisdiction cannot be conferred by consent, waiver, or estoppel . . . [\u00bfJurisdiction rests upon the law and the law alone. It is never dependent on the conduct of the parties.\u201d Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867 (1953) (citations omitted).\nWe determine that defendant\u2019s notice of appeal did not empower this court to review the trial court\u2019s June 1988 order. Even if we assume arguendo that the parties\u2019 stipulation encompasses the 1988 order, the stipulation cannot supplant the Rule 3 designation requirements of our appellate law.\nIII\nDefendant contends that the trial judge erred in denying defendant\u2019s Rule 59 motion because the 1989 judgment improperly compelled defendant to continue paying child support in the form of plaintiff\u2019s home mortgage payments. We disagree.\nDefendant has no basis for arguing that the trial court erred because our review of the 1984 judgment shows that it allows defendant to elect whether to pay support in the form of mortgage payments and does not compel defendant to pay mortgage payments on the home.\nDismissed in part and affirmed in part.\nJudges Johnson and Parker concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Pulley, Watson, King & Hofler, P.A., by Tracy Kenyon Lischer and Donna B. Slawson, for plaintiff-appellee.", "Maxwell, Martin, Freeman & Beason, P.A., by James B. Maxwell, for defendant-appellant." ], "corrections": "", "head_matter": "MARIE S. VON RAMM v. OLAF T. VON RAMM\nNo. 8914DC701\n(Filed 19 June 1990)\n1. Rules of Civil Procedure \u00a7 60.4 (NCI3d)\u2014 motion to set aside denied \u2014appeal \u2014underlying judgment not reviewed\nDefendant\u2019s notice of appeal from the trial court\u2019s order denying his motion to set aside an earlier child support order referred only to the denial to set aside and therefore did not present the underlying judgment for review.\nAm Jur 2d, Appeal and Error \u00a7 711.\n2. Appeal and Error \u00a7 450 (NCI4th)\u2014 child support \u2014 stipulation that appeal was proper \u2014no jurisdiction conveyed by stipulation\nA stipulation by the parties that notice of appeal from two judgments was \u201ctimely and proper\u201d could not confer jurisdiction on the Court of Appeals to review one judgment for which no proper notice of appeal was given.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 723, 725.\n3. Divorce and Alimony \u00a7 24.1 (NCI3d)\u2014 child support \u2014 mortgage payments not compelled\nThe trial court\u2019s judgment did not compel defendant to pay mortgage payments on the parties\u2019 home but instead allowed defendant to pay child support in the form of cash or mortgage payments, and the judgment was therefore proper.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 630,1024,1025,1044.\nAPPEAL by defendant from judgment entered 30 January 1989 by Judge Richard G. Chaney in DURHAM County District Court. Heard in the Court of Appeals 10 January 1990.\nPulley, Watson, King & Hofler, P.A., by Tracy Kenyon Lischer and Donna B. Slawson, for plaintiff-appellee.\nMaxwell, Martin, Freeman & Beason, P.A., by James B. Maxwell, for defendant-appellant." }, "file_name": "0153-01", "first_page_order": 183, "last_page_order": 188 }