Choate v. Choate

189 S.E.2d 647 (1972)

Maybelline R. CHOATE v. Billy Carroll CHOATE.

No. 7223DC469.

Court of Appeals of North Carolina.

June 28, 1972.

*650 Edmund I. Adams, Sparta, for plaintiff-appellee.

Arnold L. Young, Spartz, and R. Lewis Alexander, Elkins, for defendant-appellant.

MALLARD, Chief Judge.

The trial court erred in its finding that the children of the parties, Lynn and Holly Choate, both of whom have attained the age of eighteen years or older, were either minor or dependent children of the defendant in the absence of any finding that such children were "insolvent, unmarried and physically or mentally incapable of earning a livelihood." Crouch v. Crouch, 14 N.C.App. 49, 187 S.E.2d 348 (1972). See also Chapter 48A of the General Statutes. Therefore, paragraphs 5 and 6 of Judge Osborne's order, awarding plaintiff "custody" of Lynn Choate, 21 years of age, and Holly Choate, 18 years of age, and ordering defendant to make payments for their use and benefit and that portion of paragraph 7 of said order reading "and the minor child and the dependent child of the parties," and any other references relating to the custody and support of said children in Judge Osborne's order of 23 January 1972 must be and are hereby stricken.

We note that the record on appeal was not docketed in this court until more than ninety days from the date of the judgment appealed from. Inasmuch as no extension of time to docket appears in the record, this appeal is subject to dismissal under our rules. See Rule 5 and Rule 48 of the Rules of Practice in the Court of Appeals. Due to the fact that error was apparent on the face of the record, however, we have elected to treat this appeal as a petition for a writ of certiorari, to allow it and to consider the matter presented on its merits.

We have examined appellant's other assignments of error and find no other prejudicial error, and as modified herein, the judgment appealed from is affirmed.

Modified and affirmed.

CAMPBELL and BROCK, JJ., concur.