Carter v. Carter, 13 N.C. App. 648 (1972)

Feb. 23, 1972 · North Carolina Court of Appeals · No. 7223DC151

13 N.C. App. 648

KATHLEEN HEMRIC CARTER v. THOMAS WARD CARTER

No. 7223DC151

(Filed 23 February 1972)

1. Appeal and Error § 41— failure of record to show dates of pleadings, etc.

An appeal is subject to dismissal where the filing dates of the pleadings, motions, orders and judgment are not shown in the record on appeal. Court of Appeals Rule 48.

2. Divorce and Alimony § 23— refusal to change child support payments

No prejudicial error or abuse of discretion has been shown in the court’s order refusing to either increase or decrease the amount of the payments for support of the children of the parties.

Appeal by defendant from Davis, District Judge, 7 September 1971 Session of District Court held in Wilkes County.

Plaintiff and defendant were married to each other on 18 September 1948 and lived together as man and wife until their separation on or about 23 February 1971. Two children were born of the marriage, and they are in the care and custody of plaintiff. Defendant is paying $30.00 per week for the support of the two children.

On or about 22 August 1971, defendant filed a motion in the cause alleging that the weekly support payments of $30.00 were excessive and asking that the amount thereof be reduced. Plaintiff filed a reply alleging that the weekly support payments of $30.00 were insufficient and asking that the amount thereof be increased. The matter was heard by Judge Davis on 7 September 1971. His order provided that no increase or decrease should be made in the weekly payments of $30.00 for the support of the two children and further provided for payment of attorney fees to counsel for plaintiff.

Defendant appealed.

Franklin Smith for appellant.

No appearance contra.

BROCK, Judge.

11] The filing dates of the various pleadings, motions, orders, and judgment are not shown in the record on appeal. Therefore, we are unable to tell with certainty when any of the actions took place, or in what order they occurred. Our rules, as adopted in 1967, are designed to prevent confusion created by not knowing when pleadings and orders are filled and actions taken. Rule 19 (a), Rules of Practice in the Court of Appeals, provides in part as follows: “Every pleading, motion, affidavit, or other document included in the record on appeal shall plainly show the date on which it was filed and, if verified, the date of the verification and the name of the person who verified it. Every order, judgment, decree and determination shall show the date on which it was signed and the date on which it was filed.” A failure to comply with the rules of practice in this court subjects the appeal to dismissal. Rule 48.

[2] Nevertheless, we have carefully reviewed the record, and, although some of the findings in the order appealed from seem to be immaterial upon the question of child support (G.S. 50-13.4), we feel that Judge Davis has adequately ruled upon the controversy. No prejudicial error or abuse of discretion has been shown.

The order appealed from is

Affirmed.

Judges Hedrick and Vaughn concur.