Judge GREENE dissenting.

Plaintiff Pamela French Woods, guardian for her son Steven Wayne Llewellyn, sues her deceased ex-husband's fiancee and beneficiary of his life insurance policy, defendant Judy Rhew Bridges Shelton, for the imposition of an express or constructive trust on the proceeds of the policy. The policy was a group life insurance policy with the New York Life Insurance Company which the decedent James E. Llewellyn (Llewellyn) bought at his work place. Plaintiff claimed that a Tennessee court order incorporated a separation agreement between her and the decedent and obligated Llewellyn to maintain a $100,000 life insurance policy with his son as beneficiary. As a result of Llewellyn's death, New York Life paid defendant $20,192.70 pursuant to its policy.

Arguing that there was no genuine issue of material fact, both parties moved for summary judgment. On 4 January 1988 the trial court granted plaintiff's motion for summary judgment and denied defendant's motion. Defendant gave oral notice of appeal.

On 14 March 1988 the deputy clerk of Superior Court of Buncombe County sent defendant a notice of her right to have exemptions designated. The following day, pursuant to Rule 60(a) of the North Carolina Rules of Civil Procedure, plaintiff filed a motion to modify the trial court's 4 January 1988 judgment. Plaintiff's motion stated that it was made "in order to show the status of the [d]efendant as [c]onstructive [t]rustee so that the assets held by the [d]efendant acquired from proceeds of the insurance policy are subject to execution without the application of G.S. 1C-1601." On 1 April 1988 defendant filed a motion to claim exempt property. Plaintiff objected to defendant's schedule of exemptions and requested a hearing on the defendant's motion. On 22 April 1988 the trial court granted plaintiff's motion to modify its earlier judgment. From this amended judgment, defendant also appeals.

EAGLES, Judge.

Defendant argues that the trial court erred in granting plaintiff's motion for summary judgment and in amending the judgment. We hold that we may not address defendant's first issue because the appeal from the trial court's initial judgment was not properly perfected. As to defendant's second issue, we hold that the trial court did not abuse its discretion in amending the 4 January 1988 judgment and, accordingly, we affirm.

Defendant first argues that the trial court erred in granting plaintiff's motion for summary judgment. She argues that because the decedent Llewellyn agreed in the separation agreement to maintain a life insurance policy with the Franklin Life Insurance Company and not the New York Life Insurance Company, a constructive trust could not be imposed on the proceeds of the New York Life policy. While defendant's argument raises some interesting legal questions, we may not address them. We hold that our decision in McGinnis v. McGinnis, 44 N.C. App. 381, 261 S.E.2d 491(1980), controls and that by defendant's failure to comply with the North Carolina Rules of Appellate Procedure, she has abandoned her appeal on this issue.

App. R. 11 prescribes the methods by which an appellant settles the record on appeal. App. R. 11(a) allows the parties, within sixty days after appeal is taken, to settle the record between themselves. App. R. 11(b) further provides that if the record on appeal is not settled by agreement, the appellant "shall, within 60 days after appeal is taken, file in the office of the clerk of superior court and serve upon all other parties a proposed record on appeal." Under this method of settling the record the appellee has fifteen days to object to the record as proposed. The appellant's proposed record becomes the record on appeal if the appellee fails to object. Further, App. R. 11(e) allows the time limits imposed under this rule to be extended for good cause in accordance with App. R. 27(c).

In McGinnis plaintiff, a New York resident, brought an action against her former husband to enforce New York orders on alimony and child support. Initially, the trial court asked both parties to submit memoranda on the "validity and enforceability of the New York judgments." When plaintiff failed to timely file her memorandum, the trial court ruled that she had waived her right to be heard and entered an order denying full faith and credit to one of the New York judgments. After plaintiff filed her memorandum of law, the trial court entered another order vacating its earlier order. Defendant properly appealed from the court's second order, but failed to perfect his appeal.

Eighty-eight days later the trial court granted the New York orders full faith and credit. On appeal the defendant argued that his appeal of the second order "divested the trial court of jurisdiction to enter further orders" granting the New York orders full faith and credit. Id. at 385, 261 S.E.2d at 494. However, defendant had failed to settle the record on appeal or move for an extension of time to file his proposed record within the time set forth by App. R. 11. We held there that defendant's failure to properly perfect his appeal "constituted an abandonment which reinvested the trial court with jurisdiction to render further orders in the cause." Id. at 386, 261 S.E.2d at 495.

Likewise, here defendant's failure to timely perfect her appeal constitutes an abandonment of the appeal on this first issue. Defendant gave oral notice of appeal on 4 January 1988. She tendered her proposed record on appeal pursuant to App. R. 11(b) on 22 May 1988, 139 days later. This record does not indicate whether defendant sought or received an extension of time to settle the record. As our Supreme Court stated in Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979), "`[c]ounsel is not permitted to decide upon his own enterprise how long he will wait to take his next step in the appellate process.' . . . A failure by appellant to meet the requirements of App. R. 11(e), or to comply with the mandate of App. R. 12(a), works a loss of the right of appeal." [Citations omitted.] Accordingly, we hold that this issue is not now properly before us.

Defendant next assigns as error the trial court's grant of plaintiff's motion to amend its 4 January 1988 judgment pursuant to Rule 60(a) of the North Carolina Rules of Civil Procedure. We hold that the trial court did not abuse its discretion in granting plaintiff's motion.

Rule 60(a) provides, in part, that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders." In addition, our courts have held that the trial court may correct inadvertent omissions in a judgment through a R. 60(a) amendment so long as the amendment does not affect the substantive rights of the parties. Hinson v. Hinson, 78 N.C. App. 613, 337 S.E.2d 663 (1985), disc. rev. denied, 316 N.C. 377, 342 S.E.2d 895 (1986).

Plaintiff's complaint asked that the trial court impose a constructive trust on the proceeds of Llewellyn's life insurance policy. Alternatively, plaintiff alleged that Llewellyn established an express trust in favor of his son with defendant as trustee and that defendant had breached her fiduciary duty to the decedent's son. We note that the 4 January 1988 judgment only recites that plaintiff's summary judgment motion was granted, defendant's summary judgment was denied, and that plaintiff recover $20,192.70.

The judgment did not state under what legal theory plaintiff was entitled to prevail. The amended judgment of 22 April 1988 merely corrects that omission. The amended judgment clarifies that the trial court granted plaintiff summary judgment under a constructive trust theory. Further, it details that the property defendant acquired with the proceeds of the life insurance policy was subject to the constructive trust. The amended judgment does not declare the rights of the parties in relation to an exemption proceeding and we do not address that issue here. We hold that because the amendment to the judgment does not affect the substantive rights of the parties, the trial court did not abuse its discretion in granting plaintiff's R. 60(a) motion.

Affirmed.

Judge COZORT concurs.

Judge GREENE dissents.