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Craver v. Craver

Filed: October 3, 1979.

HAYDEE C. CRAVER PLAINTIFF
v.
PAUL E. CRAVER DEFENDANT AND UNITED STATES OF AMERICA DEFENDANT



On writ of certiorari to review two orders of the Court of Appeals. This case was docketed and argued as No. 117 at the Fall Term 1978.

Exum, Justice. Justices Britt, Brock, and Carlton did not participate in the consideration or decision of this case.

Exum

We allowed plaintiff's petition for writ of certiorari pursuant to App. R. 21 to review two orders of the Court of Appeals, the latest in a series of rulings by District Court Judge Walter P. Henderson and the Court of Appeals in a dispute that has become procedurally entangled. Because of defendant's procedural defaults the Court of Appeals erred in making these orders. They are reversed.

Apparently unsatisfied with her estranged husband's support payments*fn1 for her and two children born of the marriage, plaintiff filed action for alimony, child support, and divorce from bed and board on 16 March 1977. After a hearing Judge Henderson on 29 March 1977 ordered defendant to pay $325.00 per month alimony pendente lite and $225.00 per month for child support. The onset of litigation and Judge Henderson's order had a chilling effect on defendant's willingness to support his dependents, for as of 15

July 1977 defendant had made no alimony payments and was $187.00 in arrears in child support. In response to plaintiff's motion to find defendant in contempt, Judge Henderson conducted a hearing on 15 July 1977, found facts, and concluded that defendant's wilful failure to make payments as earlier ordered placed him in contempt of court. Judge Henderson ordered that defendant could purge himself of contempt by paying arrearages totaling $1,487.00. Judge Henderson also ordered defendant to execute an assignment of his retirement pay due from the United States to the extent of $550.00 per month for plaintiff's use.*fn2 The assignment was to be executed on or before 1 September 1977. Should defendant fail to assign his retirement benefits as ordered, Judge Henderson directed him to appear on 9 September 1977 to show cause why his wages should not be attached and why he should not be punished for contempt.

On 27 September 1977, after a hearing, Judge Henderson entered an order in which he recited prior proceedings and found that defendant had wilfully failed to pay arrearages earlier determined to be due and had wilfully failed to assign his retirement pay. The order concluded that defendant was in contempt of court. The order (1) provided that the United States, as garnishee,*fn3 pay 65 percent of defendant's retirement pay into court for plaintiff's use; (2) committed defendant to jail for six months; and (3) provided that defendant could purge himself of contempt by executing an assignment of wages as earlier ordered. This is the only order from which defendant attempted to perfect an appeal.

On 22 November 1977 Judge Henderson, on motion of plaintiff pursuant to Civ. P.R. 70, appointed plaintiff's counsel, Mr. Gene Gurganus, as commissioner to execute an assignment of

wages for defendant and ordered the United States to comply with the assignment. Defendant neither excepted to nor appealed from this order. Mr. Gurganus executed an assignment of defendant's retirement pay to the extent of $550.00 per month or 65 percent, whichever is less.

On 2 December 1977 defendant filed a petition for writ of supersedeas in the Court of Appeals. That Court on 6 December 1977 stayed Judge Henderson's 27 September 1977 order to the extent that it provided that more than 20 percent of defendant's retirement pay "be attached." The Court of Appeals also stayed Judge Henderson's 22 November 1977 order to the extent that it required Mr. Gurganus to "execute an assignment of more than twenty (20) percent of defendant's" retirement pay. Judge Henderson's orders, to the extent provided, were "stayed pending appellate review by this Court of the proceedings and the said orders of 27 September 1977 and 22 November 1977." The Court of Appeals further noted that "If the defendant fails to perfect appeal in accordance with the North Carolina Rules of Appellate Procedure, this stay order will be dissolved."

The parties being unable to agree to the record on appeal, Judge Henderson settled the record by order entered 16 February 1978 pursuant to App. R. 11(c). Rather than obtaining the clerk's certificate within ten days thereafter as required by App. R. 11(c) and filing the settled record in the Court of Appeals within ten days of the clerk's certificate as required by App. R. 12(a), defendant did nothing until 6 March 1978. On that date defendant petitioned the Court of Appeals for a writ of certiorari. Attached to the petition was the record on appeal as settled by Judge Henderson. The petition asked only that the Court of Appeals require Judge Henderson to amend the record to include certain items defendant contended were essential for determination of the dispute but which Judge Henderson had deleted when he settled the record.*fn4 Responding to this petition, the Court of Appeals postponed ruling "pending expiration of time for oral argument, or further order."

Thereafter on 6 April 1978 Judge Henderson dismissed defendant's appeal pursuant to App. R. ...


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