Opinion
No. COA10-1106
Filed 19 July 2011 This case not for publication
Appeal by Plaintiff from order entered 18 March 2010 by Judge Charles T.L. Anderson in District Court, Orange County. Heard in the Court of Appeals 8 February 2011.
Wyrick Robbins Yates Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Plaintiff-Appellant. Brock, Payne Meece, P.A., by Paul B. Brock and Heather S. Thompson, for Defendant-Appellee.
Orange County No. 03 CVD 925.
Cathryn Derian (Plaintiff) and Thomas Derian (Defendant) were married on 22 August 1982 and had two children together. Plaintiff and Defendant separated on 16 July 2003, and they divorced on 15 December 2004. Plaintiff filed a complaint for child custody, child support, post-separation support, and equitable distribution on 30 May 2003 in District Court, Orange County. Plaintiff and Defendant entered into a "Consent Custody and Separation Order" on 29 July 2003, which addressed various issues related to separation of the parties and custody of the minor children, but did not address child support. In response to various motions filed by both Plaintiff and Defendant, the trial court entered an "Order for Post-Separation Support and for Temporary Child Support" on 30 November 2004. At the time the trial court's 30 November 2004 order was entered, the oldest child had graduated from high school and had reached the age of majority. Pursuant to that order, the trial court ordered, inter alia, that Defendant pay Plaintiff $3,209.52 per month in child support, as well as education and health insurance expenses for the remaining minor child.
The issue of child support again came before the trial court pursuant to an agreement reached by the parties and presented to the trial court as a consent order, which the trial court entered on 30 November 2005, nunc pro tunc 28 February 2005 (the consent order). The consent order stated in relevant part:
The November 30, 2004 Order for Temporary Child Support is amended as set forth herein:. . . . Defendant shall pay to . . . Plaintiff through the North Carolina Child Support Enforcement Agency the sum of Three Thousand, Two Hundred, Nine Dollars and Fifty-Two Cents ($3,209.52) per month in child support from July 16, 2003 until further Order of the Court or agreement of the parties. In no event, however, shall the amount of child support be subject to review or modification by the Court for any time-period before November 1, 2005. For the time-period beginning November 1, 2005 forward, there shall be a review of the parties' respective child support obligations.
. . . .
Although the parties have been unsuccessful in two private mediations to settle the issues remaining between the parties, the parties shall once again attempt to settle all remaining issues (without participating in formal mediation). The Court will make itself available for another pretrial conference with the parties and their attorneys to assist in this attempt to resolve all of the remaining issues and, if necessary, to prepare for the final hearing in this matter.
As agreed pursuant to the consent order, Defendant paid $3,209.52 per month until December 2005, at which time Defendant began submitting monthly payments of $1,600.00 for child support instead of the $3,209.52 mandated by the consent order. Defendant claimed, and Plaintiff denied, that Plaintiff and Defendant agreed to this modification of the terms of the consent order.
As a means of settling continuing issues in dispute between them, Plaintiff and Defendant agreed to arbitration and they entered into a "Consent Stipulation for Arbitration Procedures" on 14 October 2008. In this 14 October 2008 arbitration agreement, Plaintiff and Defendant stipulated that two of the issues to be decided by the arbitrator were: (1) "What is an appropriate award of child support?" and (2) "What are the appropriate credits for past overpayment or underpayment of child support?" The arbitration was held between 14 September 2009 and 17 September 2009. The arbitrator entered an "Arbitration Award Re: Equitable Distribution and Child Support" (the arbitration award) dated 29 October 2009. In the "Child Support" section of the arbitration award, the arbitrator found facts and made conclusions of law in support of the award. The arbitrator decided that, because Plaintiff and Defendant agreed to modify the consent order to the effect that Plaintiff agreed to accept $1,600.00 in child support beginning December 2005, Defendant did not owe Plaintiff any amount for past due child support. The arbitrator further decided that Defendant "shall pay cash support at $800 per month beginning the month following the signing of this Arbitration Award until [the child] graduates from high school but not beyond his age 20." The arbitration award was signed by the arbitrator on 29 October 2009.
Plaintiff filed a "Motion to Vacate Arbitration Award as to Child Support" on 23 December 2009. In her motion, Plaintiff requested that the trial court: (1) vacate the arbitration award, (2) award Plaintiff child support arrearages, and (3) require Defendant to pay the amount of child support agreed to in the consent order, "or, alternatively, award[] prospective child support based on proper factual findings and conclusions of law[.]"
A hearing on Plaintiff's motion was held on 24 February 2010. Plaintiff primarily argued that the arbitrator erred, as a matter of law, in deciding that Defendant did not owe Plaintiff any child support "arrearages." Plaintiff also argued that the arbitrator erred, as a matter of law, in awarding an amount of $800.00 for prospective child support. In an order entered 18 March 2010, the trial court denied Plaintiff's motion to vacate the arbitration award on the following grounds: "The court concludes that no error was committed in the Arbitration Award in finding as fact and concluding that [P]laintiff and [D]efendant agreed to a modification of [the consent order], drafted by [P]laintiff's counsel[.]" The trial court further found that Plaintiff "acknowledg[ed] in open court on the record that the objection to be heard related only to the provisions of the Arbitration Award finding as fact and concluding that [P]laintiff and [D]efendant had agreed to a modification of a temporary order of child support[.]" From the 18 March 2010 order denying Plaintiff's motion to vacate the arbitration award, Plaintiff appeals.
We find that the trial court did not issue a ruling on the matter of prospective child support requested by Plaintiff in her 23 December 2009 motion to vacate the arbitration award as to child support, which was a matter properly before the trial court. The trial court's 18 March 2010 order is therefore interlocutory. For this reason, we remand to the trial court for entry of a ruling on Plaintiff's request that the trial court "vacate the Arbitration Award as to the award of prospective child support[.]"
"Judgments and orders . . . are divisible into these two classes: (1) Final judgments; and (2) interlocutory orders. A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. 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." Veazey v. Durham, 231 N.C. 357, 361, 57 S.E.2d 377, 381 (1950).
Pentecostal Pilgrims v. Connor, ___ N.C. App. ___, ___, 688 S.E.2d 81, 83-84 (2010). "`Generally, there is no right of immediate appeal from interlocutory orders and judgments.'" Id. at ___, 688 S.E.2d at 84 (citation omitted).
As we have noted above, the trial court expressly stated in its 18 March 2010 order "that the objection to be heard related only to the provisions of the Arbitration Award finding as fact and concluding that [P]laintiff and [D]efendant had agreed to a modification of [the consent order.]" The trial court made no ruling concerning the arbitrator's award of $800.00 per month in future child support payments. Its 18 March 2010 order only addressed Plaintiff's argument that the arbitration award was erroneous, as a matter of law, because the consent order had not been properly modified. The arbitrator based his determination that $800.00 was an appropriate amount for future child support on his independent analysis. The $800.00 amount found by the arbitrator to be a reasonable amount for prospective child support, based upon the needs of the child and other factors, is not dependent upon the issue of whether Plaintiff and Defendant agreed to a modification of the consent order. Nothing in the trial court's 18 March 2010 order indicates that it ruled on any issue other than the one issue it stated was before it — whether Plaintiff and Defendant modified the consent order so that Defendant only owed $1,600.00 in child support beginning December 2005. Because the trial court's 18 March 2010 order did not decide all issues before it, this order constitutes an interlocutory order. This order was not certified for immediate appeal by the trial court, and Plaintiff makes no argument that any substantial right of hers will be affected absent immediate review. Pentecostal Pilgrims, ___ N.C. App. at ___, 688 S.E.2d at 83-84. Plaintiff's appeal is not properly before us, and it is dismissed without prejudice to Plaintiff or Defendant to appeal these issues after a final determination has been made as to all matters before the trial court.
Dismissed.
Judges BRYANT and BEASLEY concur.
Report per Rule 30(e).