Blackmon v. Blackmon - Alimony Claim Dismissal for Costs Nonpayment

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April 15, 2026 Get Citation Alerts Download PDF Add Note

Blackmon v. Blackmon

Court of Appeals of North Carolina

• Citations: None known

• Docket Number: 25-429

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (15.6K)

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Syllabus

N.C.G.S.1A-1, Rule 6(e), extended time for service, service by mail

Combined Opinion

                        by Judge Chris Dillon

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-429

Filed 15 April 2026

Pitt County, No. 23CV002180-730

NANCY ANDERSON BLACKMON, Plaintiff,

v.

KYLE FRANKLIN BLACKMON, Defendant.

Appeal by plaintiff and cross-appeal by defendant from order entered 2 August

2024 by Judge Mario E. Perez in Pitt County District Court. Heard in the Court of

Appeals 10 March 2026.

Law Office of W. Gregory Duke, by W. Gregory Duke, for plaintiff-appellant.

Jonathan McGirt for defendant-appellee/cross-appellant.

DILLON, Chief Judge.

Plaintiff Nancy A. Blackmon (“Wife”) appeals from the trial court’s order

granting the motion of Defendant Kyle F. Blackmon (“Husband”) to dismiss Wife’s

refiled claim for alimony. Wife had previously asserted a counterclaim seeking

alimony in a prior domestic action brought by Husband, but she voluntarily dismissed

that counterclaim. The trial court, in this present action, based its dismissal of Wife’s

current alimony claim on Wife’s failure to pay costs associated with her earlier

voluntary dismissal of her alimony counterclaim as ordered by the court within the
BLACKMON V. BLACKMON

Opinion of the Court

time prescribed under Rule 41(d) of our Rules of Civil Procedure.1

I. Background

In a prior matter, Husband filed a domestic civil action against Wife. In her

responsive pleading, Wife answered Husband’s complaint and asserted a

counterclaim for alimony.

On 29 July 2022, Wife voluntarily dismissed her counterclaim for alimony.

On 24 July 2023, almost a year after taking her voluntary dismissal, Wife

commenced this present action, seeking alimony and attorney’s fees from Husband.

Over the next several months, the parties filed various motions, including

Husband’s motion pursuant to Rule 41(d) of our Rules of Civil Procedure to direct

Wife to pay costs associated with her alimony counterclaim filed in the prior action.

On 11 April 2024, after a hearing on the matter, the trial court entered an

order (the “April order”) directing Wife to “make payment to Husband in the amount

of . . . $3,830.22” (for costs incurred in relation to Wife’s alimony counterclaim in the

prior action), to be paid “within 30 days of the entry of this Order.”

Thirty-three days later, on Tuesday 14 May 2024, Wife attempted to pay

Husband $3,830.20, but Husband refused to accept payment because “the time period

1 The trial court had previously denied a different motion to dismiss by Husband. Husband
conditionally raises as an issue the trial court’s denial of that earlier motion. However, based on our
resolution on Wife’s appeal—affirming the trial court’s order dismissing Wife’s alimony claim—we
need not reach Husband’s argument in the alternative.

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BLACKMON V. BLACKMON

Opinion of the Court

ha[d] run out.” That same day, Husband moved to dismiss based on Wife’s failure to

pay the costs within the time provided for in the trial court’s April order.

On 2 August 2024, after a hearing on the matter, the trial court granted

Husband’s motion to dismiss Wife’s claim for alimony and attorney’s fees with

prejudice based on Wife’s failure to pay the costs as ordered in its April order within

the time provided for in that order. Wife appeals.

II. Analysis

Wife voluntarily dismissed her counterclaim for alimony in a prior action.

Indeed, Rule 41(a) of our Rules of Civil Procedure allows a party to voluntarily

dismiss a claim. N.C.G.S. § 1A-1, Rule 41(a). Rule 41(d) provides, however, that “[a

party] who dismisses a[ ] . . . claim under section (a) of this rule shall be taxed with

the costs of the [dismissed claim.]” Id. § 1A-1, Rule 41(d). And if the plaintiff

recommences “the same claim against the same defendant before the payment of the

costs of the action previously dismissed[ ] . . . the court, upon motion of the defendant,

shall make an order for the payment of such costs [to be paid] by the plaintiff within

30 days[.]” Id. And “if the plaintiff does not comply with the order [to pay costs as

directed by the trial court], the court shall dismiss the action.” Id. (emphasis added).

Our Court has held that this last sentence of Rule 41(d), providing for dismissal

where a plaintiff fails to pay the costs of the prior dismissed action as ordered,

“constitutes a mandatory directive” for the trial court to dismiss the new action.

Sanford v. Starlite Disco, Inc., 66 N.C. App. 470, 472 (1984).

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BLACKMON V. BLACKMON

Opinion of the Court

In this matter, the trial court entered the April order on 11 April 2024,

directing Wife to pay Husband the costs within 30 days. However, she made no

attempt to make the payment until 33 days later, on Tuesday 14 May 2024.

Wife, however, argues the trial court erred by dismissing her complaint,

contending the time for her to pay Husband’s costs, as ordered in the April order, did

not expire until the end of that day, Tuesday 14 May 2024. Specifically, she points to

part of the record showing that the April order was served on her by U.S. mail and

argues that, therefore, her time to pay the costs was extended by three days under

Rule 6(e), which provides:

Whenever a party has the right to do some act or take some
proceedings within a prescribed period after the service of
a notice or other paper upon him and the notice or paper is
served upon him by mail, three days shall be added to the
prescribed period.

N.C.G.S. § 1A-1, Rule 6(e).

In dismissing her complaint, the trial court reasoned that Wife only had—at

the latest—until Monday 13 May 2024 based on Rule 6(a) (thirty days after the April

order was entered was 11 May 2024, which fell on a Saturday). Rule 6(a) provides

that when an order requires an act to be completed by a day which falls “when the

courthouse is closed for transactions” it is extended until the next day “which is not

a Saturday, Sunday, or a legal holiday when the courthouse is closed for

transactions.” Id. § 1A-1, Rule 6(a).

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BLACKMON V. BLACKMON

Opinion of the Court

The issue before us, however, does not concern Rule 6(a), as Wife did not

attempt to make payment on Monday 13 May 2024. Rather, the issue before us is

whether Rule 6(e) —allowing three additional days when a notice is served by mail—

applies. The trial court concluded Rule 6(e) did not apply. We review this issue of

statutory interpretation de novo. Savage v. N.C. DOT, 388 N.C. 196, 200 (2025).

It is undisputed that Wife attempted to pay Husband on 14 May 2024, 33 days

after the trial court entered its April order. If Rule 6(e) applies, Wife had 33 days to

pay Husband, making her 14 May 2024 attempt timely. If Rule 6(e) does not apply,

the trial court properly dismissed Wife’s claim for alimony, as her payment was due

no later than Monday 13 May 2024 (assuming Rule 6(a) applies).

The plain language of Rule 6(e) adds three days to the normal time by which a

party must act when the triggering event starting the clock is “the service of a notice

or other paper[.]” N.C.G.S. § 1A-1, Rule 6(e). Our Supreme Court has interpreted

Rule 6(e) as “alleviat[ing] the disparity between constructive and actual notice when

the mailing of notice begins a designated period of time for the performance of some

right.” Precision Fabrics v. Transformer Sales, 344 N.C. 713, 721 (1996) (emphasis

added) (citations and internal marks omitted). For instance, Rule 6(e) entitled the

defendants in Broughton v. McClatchy Newspapers to three additional days to serve

the plaintiff with their responsive pleading due to the interplay between Rule 6(e)

and Rule 12(a)(1)(b). 161 N.C. App. 20, 23–24 (2003). After receiving the plaintiff’s

complaint, the defendants filed a motion for a more definite statement, which the

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BLACKMON V. BLACKMON

Opinion of the Court

trial court granted. Id. at 23. Plaintiff then served an amended complaint. Id. at

23–24. By rule, the defendants initially had 20 days to respond, “after service of the

more definite statement[,]” (i.e., the amended complaint) but Rule 6(e) extended the

20-day period by three days because the plaintiff served the amended complaint by

mail. Id. (citations omitted); see also N.C.G.S. § 1A-1, Rule 5(b).

On the other hand, in Williams v. Moore, this Court held Rule 6(e) did not

extend the time a defendant has to answer the plaintiff’s summons and complaint

when those items are served by mail. 95 N.C. App. 601, 604 (1989). There, the

plaintiff moved for and the assistant clerk of court entered a default and default

judgment against the defendant 31 days after the defendant received the plaintiff’s

summons and complaint. Id. at 603. On appeal, the defendant contended he was

entitled to three additional days by virtue of the fact the plaintiff served process via

mail. Id. at 603–04. In holding the “defendant’s time to answer had expired” before

entry of the default, this Court reasoned the 30-day response period began when the

defendant received the summons and complaint in the mail, “not when [the] plaintiff

mail[ed] [the summons and complaint].” Id. at 604 (citation omitted). Thus, “[u]nder

th[o]se circumstances, there [was] no need to apply Rule 6(e)[.]” Id.2

2 At first glance Broughton and Williams may appear inconsistent, but different rules govern

when service by mail is completed depending on the stage of litigation. Compare N.C.G.S. § 1A-1, Rule
4(j)(1)(c) (service of process by mail is complete after the mailing and delivery of the summons and
complaint) with N.C.G.S. § 1A-1, Rule 5(b) (service of subsequent pleadings or other papers by mail is
complete when the pleading or paper is properly mailed).

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BLACKMON V. BLACKMON

Opinion of the Court

Here, while the April order was served by mail, it was not the service of that

order which triggered the 30-day period for payment. Indeed, our Rules of Civil

Procedure did not require the trial court to serve the April order in the first place.

See N.C.G.S. § 1A-1, Rule 5(a) (“Every order required by its terms to be served[ ] . . .

shall be served upon each of the parties[.]” (emphasis added)); see also G. Gray

Wilson, 1 North Carolina Civil Procedure, § 5-2, at 5-5 (4th ed. 2020) (“The first

category [described in Rule 5(a)] includes only those orders that state therein that

they are to be served; ordinarily entry of an order is all that is necessary and marks

the point from which the time for taking any responsive action is measured.”). The

April order by its terms did not require it to be served or that the payment be made

within 30 days after service of the order.

We have held the provision in Rule 41(d) “constitutes a mandatory directive.”

Sanford, 66 N.C. App. at 471; Cheshire v. Bensen Aircraft Corp., 17 N.C. App. 74, 79–

80 (1972). We have further held that, as a mandatory directive, Rule 41(d) should

not be read in conjunction with Rule 6(b), which allows the extension of time by a

court order. Welsh v. Lumpkin, 199 N.C. App. 593, 597 (2009). In an unpublished

opinion, we held that a refiled complaint must be dismissed when the plaintiff mails

the costs on the 29th day, but is not received until the 31st day. Fowler v. Riddle, No.

COA 14-945, 2015 WL 1800480 (N.C. Ct. App. 2015) (unpublished).

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BLACKMON V. BLACKMON

Opinion of the Court

Wife’s payment was due no later than Monday 13 May 2024.3 Since Wife did

not attempt payment until the following day, Tuesday 14 May 2024, we conclude the

trial court did not err by dismissing Wife’s complaint. We therefore affirm the trial

court’s order.

AFFIRMED.

Judges ZACHARY and COLLINS concur.

3 It could be argued that Wife’s payment was due to Husband by Saturday 11 May 2024, that

Rule 6(a) does not apply and that Rule 6(a)—which extends a deadline to the next day the courthouse
is open for business—should only apply where the trial court has directed that payment be made to
the Clerk’s office and not to the other party directly, as was done in the present case. However, since
Wife did not attempt payment until Tuesday 14 May 2024, we need not resolve whether, or what
circumstances, a plaintiff is allowed extra time to make the ordered payment where the 30-day
deadline falls on a day when the courthouse is closed.

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