Opinion
No. COA10-851
Filed 7 June 2011 This case not for publication
Appeal by Defendant from order entered 11 May 2010 by Judge George A. Bedsworth in District Court, Forsyth County. Heard in the Court of Appeals 13 December 2010.
Robinson Lawing, L.L.P., by Michelle D. Connell, for Plaintiff-Appellee. Theodore M. Molitoris for Defendant-Appellant.
Forsyth County No. 08 CVD 8976.
Steven Diaz (Plaintiff) and Christina Diaz (now Page) (Defendant) were married on 27 April 1991, and they had five children together. Plaintiff commenced this action on 21 November 2008 by filing a complaint for absolute divorce. Absolute divorce was granted on 26 January 2009. A separation agreement that included terms of child custody was incorporated into the judgment granting divorce. Relevant to this case, Plaintiff filed a "Motion in the Cause" on 1 June 2009 requesting, inter alia, that "Defendant be ordered to permit . . . Plaintiff reasonable visitation with the minor children[.]" The matter was heard on multiple dates between 18 November 2009 and 29 April 2010. The trial court entered an order on 11 May 2010 whereby primary physical custody of three of the minor children was changed from Defendant to Plaintiff, and additional determinations were made. The 11 May 2010 order left the issues of child support and attorney's fees undetermined, and stated that if Plaintiff and Defendant could not resolve those issues between themselves, "they shall schedule a hearing to resolve such issue or issues as soon as possible." Defendant filed a notice of appeal from the 11 May 2010 order on 26 May 2010. Plaintiff filed a "Motion to Dismiss Interlocutory Appeal" on 5 August 2010 and Defendant filed a response to Plaintiff's motion to dismiss on 24 August 2010.
We hold Defendant's appeal is interlocutory and dismiss it. The 11 May 2010 order left the issues of child support and attorney's fees open and therefore Defendant's appeal is clearly interlocutory. See Veazey v. Durham, 231 N.C. 354, 362, 57 S.E.2d 377, 381 (1950).
Two avenues are available to a party to obtain review of an interlocutory order. One is certification under Rule 54(b). The other is pursuant to N.C.G.S. § 1-277 if the interlocutory order "affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment."
Stanford v. Paris, 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (citations omitted). Defendant fails to demonstrate that this interlocutory appeal is properly before us pursuant to either of these two methods. The 11 May 2010 interlocutory order is not immediately appealable and is hereby
Dismissed.
Panel Consisting of:
Chief Judge MARTIN, Judges McGEE and ERVIN.
Report per Rule 30(e).