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Harllee v. Harllee6/18/2002
ative basis in law for supporting the judgment, order, or other determination from which appeal has been taken; the proper procedure for presenting alleged errors that purport to show that the judgment was erroneously entered and that an altogether different kind of judgment should have been entered is a cross-appeal. St. Clair v. Rakestraw, 67 N.C. App. 602, 607, 313 S.E.2d 228, 231-32 (1984), rev'd in part on other grounds, 313 N.C. 171, 326 S.E.2d 19 (1985); see also Mann Contr'rs, Inc. v. Flair With Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 775-76, 522 S.E.2d 118, 121 (1999); Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358 (1990); Stanback v. Westchester Fire Ins. Co., 68 N.C. App. 107, 314 S.E.2d 775 (1984). In the instant case, the additional arguments raised in plaintiff-appellee's brief, if sustained, would provide an alternative basis for upholding the trial court's determination that the premarital agreement is invalid and unenforceable. However, plaintiff failed to cross-assign error pursuant to Rule 10(d) to the trial court's failure to render judgment on these alternative grounds. Therefore, plaintiff has not properly preserved for appellate review these alternative grounds. See Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 122, 516 S.E.2d 879, 883 (1999); N.C. R. App. P. 10(a) ("the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.") Finally, we are aware of this Court's power pursuant to Rule 2 to suspend or vary the requirements or provisions of our Rules of Appellate Procedure, including Rule 10. However, the instant case does not present a situation where doing so would "prevent manifest injustice to a party," or benefit "the public interest." N.C. R. App. P. 2 (2002). Therefore, we do not address the additional arguments raised in plaintiff-appellee's brief.
As we have determined that the trial court erred in invalidating the premarital agreement for the reasons stated herein, we reverse both the trial court's order entered 2 April 1997 and its subsequent equitable distribution of the parties' marital property, and remand the cause for distribution pursuant to the Equitable Distribution Act to the extent any properties the parties may own are not covered by the premarital agreement. See Howell, 96 N.C. App. at 532, 386 S.E.2d at 620.
Reversed and remanded.
Chief Judge EAGLES and Judge McCULLOUGH concur.
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