Simmons v. Speller
CourtCourt of Appeals of North Carolina
Date FiledNovember 4, 2026
Docket25-674
JudgeJudge Jeff Carpenter
StatusUnpublished
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Full Opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-674
Filed 4 November 2026
Lenoir County, No. 21CVD000625-530
DONYELLE SIMMONS, Plaintiff,
v.
VICTOR SPELLER, Defendant.
Appeal by Plaintiff from order entered 26 September 2024 by Judge W. Curtis
Stackhouse in Lenoir County District Court. Heard in the Court of Appeals 13
January 2026.
Donyelle Simmons, pro se, Plaintiff-Appellant.
White & Allen, P.A., by David J. Fillippeli, Jr. and Savannah H. Moore, for
Defendant-Appellee.
CARPENTER, Judge.
Donyelle Simmons (“Mother”) appeals after the district court declined to award
her joint physical custody of her minor child, whom she shares with Victor Speller
(“Father”). On appeal, Mother argues: (1) the district court abused its discretion
when it declined to award her joint physical custody in a 2024 order; (2) the district
court abused its discretion when it granted Father primary custody in a 2022 order;
SIMMONS V. SPELLER
Opinion of the Court
and (3) Mother’s counsel was biased and ineffective during the 2024 hearing. After
careful review, we dismiss her appeal.
I. Factual & Procedural Background
Mother and Father are the parents of a minor child. In June 2023, Mother
filed a motion to modify child custody. The trial court heard Mother’s motion and
subsequently entered the 2024 order (“Modification Order”). The record tends to
show the following.
In September 2022, the trial court entered a permanent custody order
(“Custody Order”), awarding Father primary physical custody and granting Mother
visitation every other weekend. Mother did not appeal that order.
In June 2023, Mother filed a motion to modify custody, alleging that
circumstances had substantially changed since entry of the Custody Order and
seeking joint physical custody. In support of her motion, Mother asserted that her
personal circumstances had improved, including her housing stability, employment
situation, and availability to care for the child. Mother also raised concerns related
to the child’s schooling, transportation, and well-being while in Father’s care.
On 17 April 2024, the trial court heard Mother’s motion.1 In the Modification
Order, the trial court agreed that Mother had demonstrated a substantial change in
circumstances. The trial court made findings that Mother’s housing and employment
1 Mother did not include a transcript of the hearing in the record on appeal.
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Opinion of the Court
had stabilized; both parties were fit and proper to have custody rights; Father
continued to have stable housing and employment; and the child was performing well
in school. The trial court expanded Mother’s visitation, with Mother receiving four
additional overnight visits each month. On 17 October 2024, Mother filed timely
notice of appeal from the Modification Order.
II. Jurisdiction
At the outset, we note that Mother’s brief contains numerous violations of the
North Carolina Rules of Appellate Procedure. In her brief, Mother did not include a
statement of grounds for appellate review. Additionally, she did not appeal from the
Custody Order, which she now challenges. Mother failed to provide an argument
containing the applicable standards of review and authorities upon which she relies.
She also failed to include information necessary for our review, namely a transcript
of the modification hearing.
“It is not the role of the appellate courts . . . to create an appeal for an
appellant.” Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005) (per curiam). “An appellant’s brief shall contain . . . .[a] statement of the
grounds for appellate review. Such statement shall include citation of the statute or
statutes permitting appellate review.” N.C. R. App. P. 28(b)(4) (2025). Appellants
must also include in their brief:
[a]n argument, to contain the contentions of the appellant
with respect to each issue presented. Issues not presented
in a party’s brief, or in support of which no reason or
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Opinion of the Court
argument is stated, will be taken as abandoned. The
argument shall contain a concise statement of the
applicable standard(s) of review for each issue[.] The body
of the argument and the statement of applicable
standard(s) of review shall contain citations of the
authorities upon which the appellant relies. Evidence or
other proceedings material to the issue may be narrated or
quoted in the body of the argument, with appropriate
reference to the record on appeal, the transcript of
proceedings, or exhibits.
N.C. R. App. P. 28(b)(6). “[T]he Rules of Appellate Procedure are mandatory and not
directory[,]” State v. Bursell, 372 N.C. 196, 199, 827 S.E.2d 302, 304 (2019) (internal
quotation marks and citation omitted), as a “ ‘failure of the parties to comply with the
rules, and failure of the appellate courts to demand compliance therewith, may
impede the administration of justice,’ ” Id. at 198–99, 827 S.E.2d at 304 (quoting
Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 193, 657 S.E.2d
361, 362 (2008)).
Yet, noncompliance with nonjurisdictional rules “should not lead to dismissal
of the appeal” unless the violations “rise to the level of a ‘substantial failure’ or ‘gross
violation.’ ” Dogwood Dev. & Mgmt. Co., 362 N.C. at 198–99, 657 S.E.2d at 365–66.
Noncompliance with the appellate rules rises to the level of a substantial failure or
gross violation when the violation(s) impair our review and when review on the merits
would “frustrate the adversarial process.” Id. at 200, 657 S.E.2d at 366–67.
Thus, “[a]s a natural corollary, parties who default under the rules ordinarily
forfeit their right to review on the merits.” Id. at 194, 657 S.E.2d at 363 (citations
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Opinion of the Court
omitted). “[T]hese rules apply to everyone—whether acting pro se or being
represented by all of the five largest firms in the state.” Bledsoe v. Cnty. of Wilkes,
135 N.C. App. 124, 125, 519 S.E.2d. 316, 317 (1999) (per curiam).
Here, Mother’s violations of our Rules of Appellate Procedure preclude our
review. See Dogwood Dev. & Mgmt. Co., 362 N.C. at 197–98, 657 S.E.2d at 365–66.
First, Mother purports to challenge the Custody Order, yet there is no indication in
the record on appeal that she filed notice of appeal from that order. See N.C. R. App.
P. 3(c)(1) (2025) (“In civil actions . . . a party must file and serve notice of appeal
within thirty days after entry of judgment . . . .); see also Dogwood Dev. & Mgmt. Co.,
362 N.C. at 197, 657 S.E.2d at 365 (“ ‘The provisions of Rule 3 are jurisdictional, and
failure to follow the rule’s prerequisites mandates dismissal of an appeal.’ ”).
Accordingly, we must dismiss Mother’s challenges to the Custody Order. See id. at
197, 657 S.E.2d at 365.
Second, Mother has abandoned her arguments related to the Modification
Order, including her allegations of attorney bias and ineffectiveness. Mother’s brief
cites no standard of review or legal authority related to her arguments. See N.C. R.
App. P. 28(b)(6). Moreover, Mother did not include a transcript of the modification
hearing. See N.C. R. App. P. 9(a)(1)(e) (2025) (The record on appeal shall contain
information “necessary for an understanding of all issues presented on appeal.”); see
also In re A.R.H.B., 186 N.C. App. 211, 219, 651 S.E.2d 247, 253 (2007) (“ ‘The
longstanding rule is that there is a presumption in favor of regularity and correctness
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Opinion of the Court
in proceedings in the trial court, with the burden on the appellant to show error.’ ”).
Because Mother provided no authority to support her arguments or a transcript to
facilitate our review, she has abandoned those arguments. See Dogwood Dev. &
Mgmt. Co., 362 N.C. at 194, 657 S.E.2d at 363.
V. Conclusion
Mother’s gross violations of our Rules of Appellate Procedure impair our
review, mandating dismissal of her appeal. See Dogwood Dev. & Mgmt. Co., 362 N.C.
at 200, 657 S.E.2d at 366–67.
DISMISSED.
Judges ZACHARY and COLLINS concur.
Report per Rule 30(e).
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