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NO. COA11-450 NORTH CAROLINA COURT OF APPEALS Filed: CATHERINE MANONE, Plaintiff, v. LAURA FAYE COFFEE, Defendant. Durham County No. 09 CVD 271 20 December 2011

Appeal and Error -- notice of appeal -- not timely -- judgment picked up at courthouse The trial court properly granted a motion to dismiss an appeal as untimely where a custody order granting joint custody was entered on 16 August 2010; defendant picked up the custody order at the court house on 19 August, within three days of its entry; and defendant did not file and serve notice of appeal until 20 September. The service requirements of Rule 3(c) of the Rules of Appellate Procedure are not applicable but the remainder of the Rule applies. This case is unique in that it is not clear from the record which party was required to serve a copy of the judgment and because defendant is both the appealing party and the party who complied with the service requirements.

NO. COA11-450 NORTH CAROLINA COURT OF APPEALS Filed: CATHERINE MANONE, Plaintiff, v. LAURA FAYE COFFEE, Defendant. Durham County No. 09 CVD 271 20 December 2011

Appeal by defendant from order entered 20 December 2010 by Judge William A. Marsh, III, in Durham County District Court. Heard in the Court of Appeals 29 September 2011. Tharrington Smith, LLP, by Jill Schnabel Jackson and H. Suzanne Buckley, for plaintiff. Sharpe, Mackritis & Dukelow, P.L.L.C., by Lisa M. Dukelow, for defendant. THIGPEN, Judge. Following the filing of a custody order on 16 August 2010, a staff member from defense counsel's office picked up the order from the court house1 on 19 August 2010. The next day, the

defendant's attorney mailed a copy of the order to the plaintiff

It is not clear from the record from whom or where at the trial court the staff member picked the order up. The defendant merely states in her brief that a staff member from her attorney's office "went to the court house . . . and located a copy of the order."

1

-2and filed a certificate of service. of appeal on 20 September 2010. The defendant filed notice

We must determine whether the

trial court erred by dismissing the defendant's appeal as not timely filed. We conclude the defendant received actual notice

of the entry and content of the order when the order was picked up from the court house; therefore, pursuant to Rule 3(c)(1) of the North Carolina Rules of Appellate Procedure, she had thirty days from the date the order was entered to file a notice of appeal. Because the defendant did not file notice of appeal

within that time, her appeal was not timely, and, we affirm. On 10-14 May 2010, the trial court heard Catherine Manone ("Plaintiff") and Laura Faye Coffee's ("Defendant") respective claims for child custody. filed an order Order") granting of the On 16 August 2010, the trial court joint minor legal and physical to custody and

("Custody Defendant.

children

Plaintiff

On 19 August 2010, a staff member of Defendant's from the On court house 20 August and

counsel obtained the Custody Order faxed a copy to Plaintiff's

counsel.

2010,

Defendant's counsel filed a Certificate of Service certifying that a copy of the Custody Order was mailed to Plaintiff's

attorney and to Defendant.

On 20 September 2010, Defendant

filed Notice of Appeal of the Custody Order.

-3On 6 October 2010, Plaintiff filed a Motion to Dismiss Appeal. After a hearing on 3 November 2010, the trial court

entered an order on 20 December 2010 granting Plaintiff's motion to dismiss and dismissing Defendant's appeal "as not timely

filed." On

Defendant appeals from the 20 December 2010 order. appeal, Defendant contends the trial court erred by

entering the 20 December 2010 order and holding that Defendant's appeal was not timely filed. We disagree.

"Failure to give timely notice of appeal in compliance with . . . Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed." Booth v. Utica Mut. Ins. Co., 308 N.C. 187, 189, Rule 3(c) of

301 S.E.2d 98, 99-100 (1983) (citations omitted).

the North Carolina Rules of Appellate Procedure provides that a party in a civil action must file and serve a notice of appeal: (1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure; or (2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period[.] N.C. R. App. P. 3(c)(1) & (2). Rule 58 of the North Carolina

Rules of Civil Procedure states, in relevant part:

-4[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. N.C. Gen. Stat.

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