Roberts v. Roberts , 1990 N.C. App. LEXIS 60 ( 1990 )

ORR, Judge.

Although plaintiff argues three issues on appeal regarding the trial court’s reduction in alimony payments, the dispositive question is whether plaintiff timely filed its record of appeal after giving notice of appeal in open court on 6 August 1986. Under Rule 12 of the N. C. Rules of Appellate Procedure,

(a) . . . . Within 15 days after the record on appeal has been settled by any of the procedures provided in this Rule 11 or Rule 18, but no later than 150 days after giving notice of appeal, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken.

(Emphasis added.)

In the case before us, the trial court rendered judgment in open court on 6 August 1986 by making several findings and then stating, “That will be the extent of the judgment at this time. Gentlemen, you can collaborate on your order.” Plaintiff immediately gave oral notice of appeal, the court allowed plaintiff 75 days to serve the proposed record on appeal, and set the appeal bond at two hundred dollars ($200.00).

The trial court did not file the order until 10 December 1987, 16 months after its judgment. It is not clear from the record who was responsible for this unconscionable delay. What is clear is that both parties were present with their attorneys at the 6 August 1986 proceeding, the trial court announced its findings in open court and directed the (attorneys to prepare an order, and the attorneys believed judgment had been rendered. Most importantly, plaintiff’s attorney gave oral notice of appeal, and knew he had a limited time to serve the proposed record on appeal.

Regardless of the time limits set by the trial court, plaintiff had no longer than 150 days after giving notice of appeal to file the appeal record with this Court. App.R. 12(a). The 150-day time limit may be extended only by an appropriate appellate court. App.R. 27(c); State v. Ward, 61 N.C. App. 747, 301 S.E.2d 507, disc. rev. denied, 309 N.C. 825, 310 S.E.2d 357 (1983). Because no extension of time within which to file the record on appeal was granted by this Court within 150 days of plaintiffs oral notice of appeal on 6 August 1986, the appeal will be dismissed. See Construction Co. v. Roofing Co., 46 N.C. App. 634, 265 S.E.2d 506 (1980).

For the reasons set forth above, we dismiss the appeal.

Appeal dismissed.

Chief Judge HEDRICK and Judge LEWIS concur.