Opinion
No. COA12–377.
2013-02-5
Scott Thomas FARLEY, Plaintiff v. Donna Louise Kay FARLEY, Defendant.
Richard M. Greene, for Plaintiff-appellant. Constance F. Jacobs, for Defendant-appellee.
Appeal by plaintiff from orders entered 11 August 2011 and 31 August 2011 by Judge Susan R. Burch in Guilford County District Court. Heard in the Court of Appeals 27 September 2012. Richard M. Greene, for Plaintiff-appellant. Constance F. Jacobs, for Defendant-appellee.
ERVIN, Judge.
Although the notice of appeal also makes reference to a 23 August 2011 amended equitable distribution order, there is no reference to this order in the record on appeal.
Plaintiff Scott Thomas Farley appeals from orders distributing the parties' marital and divisible property. On appeal, Plaintiff argues that the trial court erred by failing to classify and distribute as divisible property the post-separation diminution in the value of an investment account and in determining the value of the marital residence. After careful consideration of Plaintiff's challenges to the trial court's orders in light of the record and the applicable law, we conclude that Plaintiff's appeal has been taken from an unappealable interlocutory order and should be dismissed.
I. Factual Background
The parties were married on 26 August 1995, separated on 6 January 2006, and divorced on 12 September 2007. Three children were born of the marriage: two girls born in 1996 and 1999 and a boy born in 1998. In addition, Plaintiff adopted Defendant's daughter from another relationship, who was born in the mid–1990s.
On 14 March 2007, Plaintiff filed a complaint asserting, among other things, claims for divorce, child custody, and equitable distribution. Plaintiff filed an amended complaint on 12 April 2007 in which he sought a divorce, a custody determination, and equitable distribution of the parties' assets. In his amended complaint, Plaintiff alleged, in relevant part, that “there is a dispute between the parties regarding the care, custody and supervision of the minor children” and asking “that the Court award the parties joint legal custody of the children and that they share physical custody of the children with their being in the primary physical custody of the Defendant[.]” On 6 August 2007, Defendant filed an answer and counterclaim in which she “admitted [, among other things,] that there is a dispute between the parties regarding the care, custody and supervision of the minor children” and alleged that it “is in the best interests and welfare of the minor child[ren] that their legal custody be placed with the parties herein jointly, with the defendant having primary physical custody and the plaintiff having reasonable visitation.” As a result, Defendant sought post-separation support, alimony, equitable distribution, child custody, and child support. On 31 December 2007, Plaintiff filed a reply to Defendant's counterclaims in which he denied the material allegations set out in Defendant's counterclaims, asserted various affirmative defenses, sought the entry of an equitable distribution judgment that awarded him more than 50% of the parties' assets, and requested a jury trial “on all issues subject to determination by a jury.”
On 15 February 2011, the trial court approved a pretrial stipulation resolving various issues surrounding the valuation and distribution of certain assets and stating that, in return for the inclusion of certain terms in the stipulation, Defendant had dismissed her claims for post-separation support and alimony. On 11 August 2011, the trial court entered an order distributing the parties' marital and divisible property. On 31 August 2011, the trial court entered an amended order “for the sole purpose of correcting typographical errors” in its original equitable distribution order. The amended order distributed the parties' marital and divisible property and found, in pertinent part, that:
1. Plaintiff commenced this action through Complaint filed on March 14, 2007[.]
2. Defendant filed an Answer and Counterclaims for post separation support, permanent alimony, child custody and child support, attorney fees, [and] equitable distribution ... on August 6, 2007.
3. Defendant filed a Voluntary Dismissal of her claim for permanent alimony on September 17, 2008, reserving her claims for post separation support, child support, child custody, equitable distribution and attorney fees.
....
8. The parties resolved the issue of post separation support ... and based on the court's adoption of the stipulations into the final Order of distribution of the marital estate the Defendant waives any and all further claim for post separation support and attorney fees related thereto.
On the basis of these and other findings and conclusions, and after distributing the parties' assets, the trial court determined, in pertinent part, that:
12. Entry of this Order resolves all issues of equitable distribution, child support, uninsured medical expenses and insurance on the minor children through February, 2011 and attorney fees related thereto. Defendant's claims for post-separation support and attorney fees related thereto have been waived.
13. The Court shall retain jurisdiction over this matter as necessary to effectuate the terms and intent hereof.
Defendant noted an appeal to this Court from the original and the amended equitable distribution orders.
II. Legal Analysis
“Judicial judgments, orders and decrees are either ‘interlocutory or the final determination of the rights of the parties.’ “ Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (citing N.C. Gen.Stat. § 1A–1, Rule 54(a)). “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, 362, 57 S.E.2d 377, 381 (1950) (citing Johnson v. Roberson, 171 N.C. 194, 195–96, 88 S.E. 231, 231–32 (1916)).
“The appeals process ‘is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.’ “ Stanford v. Paris, 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (quoting Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)). As a result, “there is no right of immediate appeal from interlocutory orders and judgments.” Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (citation omitted). Even so, “[i]nterlocutory orders may be appealed immediately under two circumstances. The first is when the trial court certifies [that] no just reason exists to delay the appeal after a final judgment as to fewer than all the claims or parties in the action. See [N.C. Gen.Stat. § ] 1A–1, Rule 54(b) [ (2011) ]. The second is when the appeal involves a substantial right of the appellant and the appellant will be injured if the error is not corrected before final judgment. See [N.C. Gen.Stat. § ] 1–277 [ (2011) ].” N.C. Dep't of Transp. v. Stagecoach Village, 360 N.C. 46, 47–48, 619 S.E.2d 495, 496 (2005) (citation omitted). “Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994) (citations, quotation marks, and ellipses omitted). “It is well established in this jurisdiction that if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves.” Bailey, 301 N.C. at 208, 270 S.E.2d at 433 (citing Dickey v. Herbin, 250 N.C. 321, 325, 108 S.E.2d 632, 635 (1959), and Rogers v. Brantley, 244 N.C. 744, 745, 94 S.E.2d 896, 896 (1956)).
A careful review of the present record compels the conclusion that Plaintiff's appeal is not properly before this Court and should be dismissed. According to the equitable distribution orders, Defendant had already taken a dismissal of her claim for alimony, “reserving her claims for post separation support, child support, child custody, equitable distribution and attorney fees.” The equitable distribution orders “resolve[d] all issues of equitable distribution, child support, uninsured medical expenses and insurance on the minor children through February, 2011 and attorney fees related thereto” and stated that “Defendant's claims for post-separation support and attorney fees related thereto have been waived.” However, the equitable distribution orders do not address the parties' child custody claims and the record contains no indication that the parties' child custody dispute has been finally resolved by either agreement or judicial order. For that reason, the orders from which Plaintiff has attempted to appeal are clearly interlocutory. In addition, the trial court did not certify the orders from which Plaintiff seeks to appeal for immediate review pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b). As a result, we lack the authority to reach the merits of Plaintiff's appeal unless the challenged orders affect a substantial right.
N.C. R.App. P. 28(b)(4) provides, in pertinent part, that an “appellant's brief shall contain” a “statement of the grounds for appellate review” and that, when “an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” This Court and the Supreme Court have repeatedly dismissed appeals in cases in which the appealing party did not make the required showing that the challenged order affected a substantial right on the theory that:
[i]t is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.
Jeffreys, 115 N.C.App. at 380, 444 S.E.2d at 254.See also, e.g., In re A.R.G., 361 N.C. 392, 397, 646 S.E.2d 349, 352 (2007) (stating that, since “[r]espondent-father offers no argument that the ... order has affected a substantial right,” “the Court of Appeals did not err in holding that the instant appeal is subject to dismissal” given the Supreme Court's refusal to “construct [such an argument] for him”) (citing Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (stating that “[i]t is not the role of the appellate courts, however, to create an appeal for an appellant.”). In this case, Plaintiff has not demonstrated that his appeal has been taken from a final order, acknowledged the interlocutory nature of his appeal, identified a substantial right of which he would be deprived in the absence of immediate appellate review, or articulated any other justification for a decision to decide his appeal from the trial court's orders on the merits at this time. As a result, consistency with well-established North Carolina law requires us to dismiss the present appeal.
Pursuant to N.C.R.App. P. 21(a)(1), “[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals ... when no right of appeal from an interlocutory order exists[.]” However, Plaintiff has not sought the issuance of a writ of certiorari, complied “with the procedural provisions of N.C. R.App. P. 21, [or] or offered any explanation for [his] failure to do so.” Harbour Point Homeowners' Ass'n, Inc. v. DJF Enter., Inc., 206 N.C.App. 152, 164, 697 S.E.2d 439, 448 (2010) (citing Rauch v. Urgent Care Pharm ., Inc., 178 N.C.App. 510, 515, 632 S.E.2d 211, 216 (2006). “Although we have the authority, in the exercise of our discretion, to treat the record on appeal and briefs as a petition for writ of certiorari pursuant to N.C. R.App. P. 21, to grant the petition, and to review the Plaintiff's challenge to the trial court's order on the merits[,] ... we elect not to exercise our discretion in this fashion in this case given the general policy against the piecemeal review of interlocutory orders enunciated in Veazey and the absence of any compelling reason to depart from our general policy of declining to grant certiorari in order to entertain such appeals in this case.” Harbour Point, 206 N.C.App. at 165, 697 S.E.2d at 448. As a result, in light of the absence of any justification for reaching the merits of Plaintiff's appeal and our disinclination to grant certiorari on our own motion, we conclude that Plaintiff has attempted to appeal from an unappealable interlocutory order and that his appeal should be, and hereby is, dismissed.
DISMISSED. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).