Opinion
No. COA15-662
05-17-2016
JEFFREY BRADFORD ELTRINGHAM, Plaintiff v. MICHELLE ROSE [NOW ALLEN], Defendant v. JAMES SHAWN ALLEN, Third-Party Defendant
Rice Law, PLLC, by Mark Spencer Williams and Christine M. Sprow, for plaintiff. James Zisa Attorneys, P.A., by James Zisa, for defendant. Brian J. Moore & Associates, by Erin E. Catucci, for third-party defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. New Hanover County, No. 8 CVD 2561 Appeal by plaintiff from order entered 27 March 2015 by Judge Jeffrey E. Noecker in New Hanover County District Court. Heard in the Court of Appeals 18 November 2015. Rice Law, PLLC, by Mark Spencer Williams and Christine M. Sprow, for plaintiff. James Zisa Attorneys, P.A., by James Zisa, for defendant. Brian J. Moore & Associates, by Erin E. Catucci, for third-party defendant. CALABRIA, Judge.
Jeffrey Bradford Eltringham ("plaintiff") appeals an order granting temporary custody of his minor child to third-party defendant James Shawn Allen ("Allen"). Because plaintiff appeals from an interlocutory order and has failed to show that the order affects a substantial right that will be lost absent immediate review, we dismiss his appeal.
I. Background
Plaintiff and Michelle Rose (Now Allen) ("defendant") never married, but they are the biological parents of one minor child ("Eli") born 29 September 2007. When defendant was approximately four months pregnant with Eli, she became romantically involved with Allen. Defendant and Allen married in November 2008 and later divorced in December 2014. One child, Sam, was born to the marriage on 20 December 2010.
On 31 March 2009, the New Hanover County District Court entered a Child Custody Consent Order which granted defendant primary custody of Eli and granted plaintiff daytime visitation rights on every other weekend. In August 2012, plaintiff moved from Wilmington, North Carolina, to Pennsylvania. From November 2008 until September 2013, Eli lived exclusively with Allen and defendant. After Allen and defendant separated in September 2013, Eli and Sam remained in Allen's care. Shortly thereafter, Allen discovered that defendant had developed a significant drug problem.
Consequently, on 17 January 2014, Allen filed a motion to intervene and a motion in the cause, requesting the ex parte grant of exclusive care and custody of Eli. An ex parte order was entered that same day, granting Allen temporary and primary custody of Eli. This order also granted plaintiff visitation and granted defendant supervised visitation. On 12 May 2014, the district court entered a consent order between Allen and defendant granting Allen primary custody of Eli and defendant supervised visitation. In September 2014, defendant entered into a drug rehabilitation facility.
After a hearing on 12 December 2014, the ex parte order and consent order granting Allen primary custody of Eli were vacated because Allen's motion to intervene was never ruled upon. As a result, the 31 March 2009 custody order was reinstated. The trial court entered an order to this effect on 9 January 2015.
On 18 December 2014, plaintiff filed an instrument captioned, inter alia, "Emergency Ex-Parte Motion for Child Custody Order and Motion to Modify Child Custody." His motions were denied. On 20 December 2014, Eli was taken to the hospital for an asthma attack. When plaintiff arrived at the hospital to visit Eli, defendant was discovered passed out in the bathroom; pills were laying on the counter and the floor was covered in blood droplets. On 30 December 2014, after considering plaintiff's "Renewed Emergency Ex-Parte Motion for Child Custody and Motion to Modify Child Custody," the district court granted plaintiff ex parte emergency custody of Eli pending a hearing on the matter.
On 5 January 2015, the district court held a return hearing on the ex parte custody order and Allen filed a new motion to intervene in the matter. However, plaintiff objected to the consideration of Allen's motion at the hearing, arguing that he was not given proper notice. Since the motion to intervene had not been calendared, the court refused to rule on it at the hearing. After hearing testimony from plaintiff as well as arguments from plaintiff and Allen, the court found that: (1) plaintiff had acted inconsistently with his constitutionally protected parental status; (2) defendant was unfit due to her drug abuse problems; and (3) it was in Eli's best interests to remain living with Allen and his brother Sam. In an order entered 27 March 2015, the court dismissed Allen's motion to intervene because it sua sponte made Allen a party to the case. The court also vacated the 30 December 2014 ex parte emergency custody order entered in favor of plaintiff and granted Allen temporary physical custody of Eli, "subject to [p]laintiff having visitation and [d]efendant having supervised visitation." The temporary custody order was entered without prejudice to plaintiff, defendant, or Allen. Plaintiff appeals.
II. Analysis
Plaintiff raises various substantive arguments in support of his challenge to the district court's order granting Allen temporary custody of Eli. However, since the order was entered without prejudice to any party, we must first address the interlocutory nature of the order on appeal.
"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. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Generally, a party has "no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).
Nevertheless, there are two instances in which a party may immediately appeal from an interlocutory order or judgment. Id. The first instance arises when "the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to [N.C. Gen. Stat.] § 1A-1, Rule 54(b)." McConnell v. McConnell, 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002). In the second instance, immediate review is available "where the order affects a substantial right that 'will clearly be lost or irremediably adversely affected if the order is not review[ed] before final judgment.' " Edmondson v. Macclesfield L-P Gas Co., 182 N.C. App. 381, 391, 642 S.E.2d 265, 272 (2007) (quoting Blackwelder v. Dept. of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)). Our Supreme Court has defined a "substantial right" as "a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right." Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quotation marks and citation omitted) (alteration in original). "The burden is on the appellant to establish that a substantial right will be affected unless he is allowed immediate appeal from an interlocutory order." Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001).
Here, the trial court did not certify its order pursuant to Rule 54(b).
In the instant case, both defendant and Allen argue that plaintiff's appeal should be dismissed because it was taken from an interlocutory temporary custody order which does not affect a substantial right. Anticipating these arguments, plaintiff filed a petition for writ of certiorari contemporaneously with his principal brief. In support of his petition, plaintiff made a vague argument that a substantial right is at issue because this "case involves the proper standing of a non-parent[,]" to wit: Allen. We denied plaintiff's petition for writ of certiorari on 20 November 2015, and now further examine the custody order.
"[A]n order is temporary if either (1) it is entered without prejudice to either party, (2) it states a clear and specific reconvening time in the order and the time interval between the two hearings was reasonably brief; or (3) the order does not determine all the issues." Senner v. Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675, 677 (2003). "[A] trial court's designation of an order as 'temporary' or as 'permanent' is not binding on this Court." Lamond v. Mahoney, 159 N.C. App. 400, 403, 583 S.E.2d 656, 658 (2003) (citing Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000)). "[W]hether an order is temporary or permanent in nature is a question of law, reviewed on appeal de novo." Smith v. Barbour, 195 N.C. App. 244, 249, 671 S.E.2d 578, 582 (2009) (italics added).
Because the district court's order was explicitly entered without prejudice to any party, it was temporary. "A review of North Carolina case law reveals that this Court has never held that a child custody order affects a substantial right except for when the physical well-being of a child is at stake." Hausle v. Hausle, 226 N.C. App. 241, 244, 739 S.E.2d 203, 206 (2013) (citing McConnell v. McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 803, 804 (2002) (holding that a substantial right had been affected where "the order . . . involve[d] the removal of the child from a home where the court specifically concluded 'that there is a direct threat that the child is subject to sexual molestation if left in the mother's home' ")). Similarly, and directly applicable in the instant case, "[t]he general rule . . . is that temporary custody orders are interlocutory and the temporary custody granted by the order does not affect any substantial right of [a party] which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits." File v. File, 195 N.C. App. 562, 569, 673 S.E.2d 405, 410 (2009) (internal quotation marks and citation omitted). Plaintiff has failed to make any colorable argument as to why the temporary order affects a substantial right, and we find no evidence that Eli's physical well-being is at stake. Indeed, given that Eli remains at the home where he has lived with Allen and Sam for the past seven years, it appears that the court's order was entered to ensure Eli's physical and emotional well-being.
III. Conclusion
We conclude that the district court's temporary custody order, which was interlocutory in nature, did not affect a substantial right. Since plaintiff has failed to allege circumstances that warrant immediate review of the district court's temporary custody order, his appeal must be dismissed.
DISMISSED.
Judges ELMORE and ZACHARY concur.
Report per Rule 30(e).