Opinion
No. COA12–1453.
2013-08-6
Karen B. DALY, Plaintiff, v. Tyron P. DALY, Defendant, v. Patti G. Daly, Plaintiff–Intervenor.
Economos Law Firm, PLLC, by Larry C. Economos, for plaintiff-intervenor-appellant. No brief for plaintiff-appellee or defendant-appellee.
Appeal by plaintiff-intervenor from judgment entered 22 February 2012 by Judge W. Rob Lewis II in Hertford County District Court. Heard in the Court of Appeals 22 May 2013. Economos Law Firm, PLLC, by Larry C. Economos, for plaintiff-intervenor-appellant. No brief for plaintiff-appellee or defendant-appellee.
ROBERT C. HUNTER, Judge.
Patti G. Daly (“intervenor”) appeals from the judgment denying her request for visitation rights with her grandchildren, the minor children of Karen Daly (“plaintiff”) and Tyron Daly (“defendant”). Intervenor argues that the trial court erred in concluding that the minor children lived in an “intact family” and that this determination precluded her from successfully pursuing a claim for visitation rights despite the ongoing custody dispute between plaintiff and defendant. After careful review, we dismiss intervenor's appeal as having been taken from an interlocutory order.
Background
Plaintiff and defendant have two minor children born of their marriage. On 1 November 2010, plaintiff filed a complaint seeking an absolute divorce, custody, and equitable distribution. Defendant counterclaimed seeking equitable distribution, visitation, and paternal grandmother visitation. On 9 March 2011, intervenor, defendant's biological mother, filed a motion to intervene under N.C. Gen.Stat. § 50–13.2(b1) seeking visitation rights, and the motion to intervene was granted. On 22 February 2012, the trial court denied intervenor's request for visitation, holding in part that the minor children lived in an “intact family.” See Perdue v. Fuqua, 195 N.C.App. 583, 586, 673 S.E.2d 145, 148 (2009) (“In order for a grandparent to initiate a proceeding for visitation, there must be an ongoing custody proceeding and the child's family must not be an intact family.”). Intervenor appeals.
Discussion
On appeal, intervenor acknowledges that at the time of the filing of her brief the trial court had not entered a final order resolving the custody dispute between plaintiff and defendant. Therefore, we must determine whether this Court can address intervenor's arguments on appeal because the order from which she appeals is interlocutory.
An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.... As a general proposition, only final judgments, as opposed to interlocutory orders, may be appealed to the appellate courts. Appeals from interlocutory orders are only available in exceptional cases. Interlocutory orders are, however, subject to appellate review:
if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.
The appealing party bears the burden of demonstrating that the order from which he or she seeks to appeal is appealable despite its interlocutory nature.
Hamilton v. Mortgage Info. Servs., Inc., 212 N.C.App.73, ––––, 711 S.E.2d 185, 188–89 (2011) (citations, quotation marks, and brackets omitted). Moreover, “[i]f a party attempts to appeal from an interlocutory order without showing that the order in question is immediately appealable, we are required to dismiss that party's appeal on jurisdictional grounds.” Id. at ––––, 711 S.E.2d at 189.
Here, the trial court did not make a Rule 54 certification that there is no just reason to delay the appeal, and intervenor does not address whether the trial court's order affects a substantial right. Therefore, we must dismiss intervenor's appeal.
DISMISSED.
Report per Rule 30(e).