Opinion
No. COA10-1367
Filed 3 May 2011 This case not for publication
Appeal by plaintiff from order entered 20 April 2010, nunc pro tunc 24 February 2010, by Judge Richard B. Abernathy in Gaston County District Court. Heard in the Court of Appeals 14 April 2011.
J. Boyce Garland, Jr., for plaintiff-appellant. Langson Law Firm, by Sean F. McIlveen, for defendant-appellee.
Gaston County No. 09 CVD 6679.
Dawn M. Herrin ("plaintiff") appeals from the trial court's order dismissing her claims against Richard K. Herrin ("defendant") for equitable distribution, postseparation support, and alimony. We dismiss the appeal as interlocutory.
Plaintiff and defendant were married on 12 June 1993. On 10 March 2008, the parties separated when plaintiff left the marital residence. The parties had one child during their marriage, and that child was still a minor at the time of separation. Prior to her departure from the marital residence, plaintiff wrote, in her own handwriting, a document which discussed the distribution of various items of marital property and other financial matters.
On 12 November 2009, plaintiff initiated an action seeking postseparation support, alimony, equitable distribution, and child custody in Gaston County District Court. On 2 February 2010, defendant filed an answer and counterclaim for child custody and divorce from bed and board. In his answer, defendant moved to dismiss plaintiff's claims for postseparation support, alimony, and equitable distribution, on the basis of the document plaintiff drafted before she left the marital residence. On 18 February 2010, plaintiff filed a response to defendant's counterclaims and, in response to defendant's motion to dismiss, asserted that the document drafted by plaintiff should be set aside on the basis of duress, coercion, and undue influence.
The trial court conducted a hearing on defendant's motion on 24 and 25 February 2010. After hearing plaintiff's testimony, the trial court granted defendant's motion to dismiss plaintiff's claims for postseparation support, alimony, and equitable distribution. Plaintiff appeals.
While neither party disputes this Court's jurisdiction over the instant appeal, "whether an appeal is interlocutory presents a jurisdictional issue, and this Court has an obligation to address the issue sua sponte." Webb v. Webb, 196 N.C. App. 770, 771-72, 677 S.E.2d 462, 463 (2009) (internal quotations, citation, and brackets omitted). "An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). An order is also considered interlocutory if it dismisses the claims of one party while leaving pending the counterclaims of another party. See J B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 4, 362 S.E.2d 812, 815 (1987) (holding that because summary judgment in favor of the defendants on the plaintiff's claims did not adjudicate the defendants' counterclaims, plaintiff's appeal was interlocutory).
In the instant case, the trial court's order only dismissed plaintiff's claims for postseparation support, alimony, and equitable distribution. There is nothing in the record which indicates that plaintiff's claim for child custody or defendant's counterclaims have ever been resolved. In plaintiff's "Statement of the Grounds for Appellate Review," she asserts only: "Judge Abernathy's Order to Dismiss entered nunc pro tunc on February 24, 2010 dismissed Plaintiff's final two claims of alimony and equitable distribution, and is therefore a final judgment which allows for appeal directly to the Court of Appeals pursuant to G.S. Section 7A-27(b)." While plaintiff describes the trial court's order as dismissing her final two claims, there is nothing in the record which demonstrates the resolution of her claim for child custody. Even assuming, arguendo, that this claim has been resolved, plaintiff also fails to address defendant's pending counterclaims. As a result, plaintiff's appeal of the trial court's order dismissing her claims for postseparation support, alimony, and equitable distribution is interlocutory.
An appeal from an interlocutory order is permissible only if [(1] the trial court certified the order under Rule 54(b) of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review. The burden rests on the appellant to establish the basis for an interlocutory appeal.
Chidnese v. Chidnese, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (2011) (citation omitted). The trial court's order does not include a Rule 54(b) certification. Therefore, plaintiff's appeal is only properly before this Court if it affects a substantial right.
Plaintiff does not argue that the trial court's order affects any substantial right, and "[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[.]" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Since plaintiff has failed to make any argument asserting the existence of a substantial right, she has failed to establish a right to appeal. Id. "[I]f there is no right of appeal, it is the duty of an appellate court to dismiss the appeal on its own motion." Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002) (internal quotation and citation omitted). Accordingly, we dismiss plaintiff's appeal.
Dismissed.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).