Brown v. Swarn (Lawyers Weekly No. 011-013-18, 10 pp.) (Chris Dillon, J.) Appealed from Transylvania County District Court (T. Mack Brittain, J.) N.C. App.
Holding: When, as here, there is no certificate of service in the record showing when the appellant was served with the trial court’s judgment, the burden is on the appellee to show that the appellant received actual notice of the judgment more than 30 days before filing notice of appeal in order to warrant dismissal of the appeal as untimely filed. Since the appellee has not made such a showing, we have jurisdiction over the appeal.
We deny the plaintiff-mother’s motion to dismiss the appeal. We affirm the custody order.
Despite the title given by the trial court – “Temporary Non-Prejudicial Custody Order” (the 2016 Order) – the 2016 Order from which the defendant-father appeals is a permanent custody order. The order does not mention withholding prejudice to either party, and there are no dates set for future proceedings. The 2016 Order provides a custody schedule and says that the “parties shall continue with this schedule until there are further orders of this court,” giving permanent effect to the order’s terms until such time as they are properly superseded or modified. The 2016 Order speaks to all pertinent issues and appears to be permanent and final. The father’s appeal is not interlocutory.
However, the preceding 2015 Consent Order was a temporary custody order. It required the parties to attend child custody mediation to discuss elementary school attendance and “any other custody matter which needs to be addressed.” Further, the 2015 Consent Order did not set a holiday schedule.
Since the 2015 Consent Order was temporary, the trial court did not err in applying a “best interests of the child” standard – rather than a substantial change in circumstances standard – in its 2016 Order to modify the 2015 Consent Order.