Opinion
No. COA05-1207
Filed 5 July 2006
Appeal by plaintiff from order entered 4 February 2005 by Judge Jerry Jolly in Brunswick County District Court. Heard in the Court of Appeals 11 April 2006.
Thomas S. Hicks, PLLC, by Thomas S. Hicks, for plaintiff-appellant. Michelle D. Reingold; and Hager Simmons Law Office, PC, by Virginia R. Hager, for defendant-appellee.
Brunswick County No. 03 CVD 0584.
Adrian Ulin (plaintiff) appeals from an order granting Dawn Ulin (defendant) increased visitation with the parties' minor child. We dismiss the appeal.
The record establishes the following: The parties were married in 1996 and separated in 2003. They are the parents of one child born in 1997. On 25 June 2003 the trial court entered an order for custody of the minor child, placing primary custody with plaintiff, and allowing defendant limited supervised visitation with her son. On 4 February 2005 the trial court entered an order modifying custody by giving defendant more visitation time and unsupervised visitation privileges. From this order plaintiff appeals.
We first review pertinent Rules of Appellate Procedure. N.C.R. App. P. 10 addresses the assignment of error on appeal, and provides in relevant part that "review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10." Rule 10(a). Further, "[e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." Rule 10(c)(1).
"`One purpose of this rule is to identify for the appellee's benefit all the errors possibly to be urged on appeal . . . so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position.'" Walker v. Walker, ___ N.C. App. ___, ___, 624 S.E.2d 639, 640 (2005) (quoting State v. Baggett Penuel, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999)) (citation omitted). Further, "it is long settled that the `scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant's brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.'" Walker, ___ N.C. App. at ___, 624 S.E.2d at 641 (quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)).
We next apply these rules to the present case. Plaintiff made thirteen assignments of error, in which he assigned error to: (1) the sufficiency of the evidence supporting each of six findings of fact; (2) the sufficiency of the evidence supporting each of three of the court's conclusions of law; and (3) the adequacy of the findings and conclusions to support the decretal part of the order. "There is nothing inherently incorrect about . . . [plaintiff's] assignments of error. These assignments of error clearly preserve for appellate review the issues stated therein[.]" Walker, ___ N.C. App. at ___, 624 S.E.2d at 641.
However, in his appellate brief, plaintiff does not argue any of the issues he assigned as error. Instead, plaintiff's primary argument is that the trial court erred by considering evidence and finding facts concerning events that occurred "before the entry of the prior order." Moreover, plaintiff does not allege that he ever objected to the court's use of evidence occurring outside the proper time frame; and he did not assign error to the admission of any evidence. Accordingly, this issue was not preserved for appellate review.
Plaintiff also argues in his brief that the court (1) ignored evidence tending to show that defendant was "disingenuous"; (2) ignored certain evidence favorable to him; and that (3) the court's treatment of this evidence was an abuse of discretion. Again, none of these issues are assigned as error. We conclude that plaintiff violated the North Carolina Rules of Appellate Procedure, in that none of his arguments were assigned as error.
"The North Carolina Rules of Appellate Procedure are mandatory and `failure to follow these rules will subject an appeal to dismissal.' . . . As this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule." Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 402, 610 S.E.2d 360, 361 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999), and citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)).
While we dismiss this appeal, we note that appellant's arguments on appeal are without merit.
Dismissed.
Judge ELMORE concurs.
Judge WYNN concurs in the result only in a separate opinion.