Opinion
No. COA15-672
04-19-2016
WILLIAM WARD LEWIS, Plaintiff, v. MATEE A. SACKIE, Defendant.
Myers Law Firm, PLLC, by Matthew R. Myers, for plaintiff-appellee. The Law Office of Billie R. Ellerbe, P.C., by Billie R. Ellerbe and Rhonda Lynn Patterson, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Mecklenburg County, No. 10 CVD 15731 Appeal by defendant from orders entered 3 July 2013 and 6 November 2014 by Judge Charlotte Brown and Judge Gary L. Henderson respectively in Mecklenburg County District Court. Heard in the Court of Appeals 17 November 2015. Myers Law Firm, PLLC, by Matthew R. Myers, for plaintiff-appellee. The Law Office of Billie R. Ellerbe, P.C., by Billie R. Ellerbe and Rhonda Lynn Patterson, for defendant-appellant. GEER, Judge.
Defendant Matee A. Sackie appeals from the district court's (1) 3 July 2013 temporary order modifying a permanent custody order entered by Judge Charlotte Brown on 3 January 2011, and (2) 6 November 2014 order entered by Judge Gary L. Henderson denying defendant's motion pursuant to Rule 52 and Rule 59 of the Rules of Civil Procedure seeking to set aside the temporary order. Because defendant has appealed from interlocutory orders and failed to demonstrate that these orders will affect a substantial right in the absence of an immediate appeal, we grant plaintiff's motion to dismiss the appeal.
Facts
Plaintiff and defendant are the biological parents of a minor child born 21 June 2010. On 19 July 2010, defendant in this case filed a pro se child custody and child support action against plaintiff, file no. 10 CVD 15043, seeking custody of the minor child born to the parties. On 29 July 2010, plaintiff in turn filed a pro se child custody action against defendant, file no. 10 CVD 15731, seeking custody and visitation with the minor child.
On 10 August 2010, plaintiff filed a motion for a temporary parenting arrangement pursuant to Mecklenburg County Local Rule 7A.11. On 8 September 2010, Judge Brown conducted a temporary parenting arrangement hearing and entered a temporary parenting arrangement order in plaintiff's action, 10 CVD 15731. In that order, Judge Brown found that defendant was fit to have temporary care of the minor child and plaintiff was fit to have visitation. The order awarded temporary care, custody, and control as well as final decision making authority regarding the child to defendant. The order also provided a graduated visitation plan for plaintiff that began with supervised visitation and progressed to plaintiff's having visitation with the minor child every other weekend.
On 7 October 2010, the family court administrator for Mecklenburg County entered an order consolidating the two pending actions into plaintiff's file number, 10 CVD 15731. --------
On 3 January 2011, Judge Brown entered an order establishing child support in this matter. Judge Brown also entered an order converting the court's 8 September 2010 temporary order into a permanent custody order, awarding permanent care, custody, and control and final decision making authority of the minor child to defendant.
On 16 June 2011, defendant filed an ex parte motion for temporary emergency custody visitation modification, seeking an order requiring plaintiff to submit to supervised visitation. The trial court, on 20 June 2011, entered an order denying temporary emergency custody, concluding no emergency existed. On 12 September 2011, plaintiff filed a motion for modification of custody and visitation, a motion for an order to show cause for failure to comply with child custody and visitation order, and a motion for modification of child support order. The trial court conducted a hearing on the motions on 6 January 2012 and 25 January 2012 and, at the conclusion of the hearing, the trial court rendered its ruling, modifying the child custody and child support orders and appointing the Counsel for Children's Rights as a custody advocate to represent the child. On 20 March 2012, the trial court entered an order appointing the Counsel for Children's Rights as guardian ad litem ("GAL") for the minor child.
On 3 July 2013, 18 months after the oral rendering of the order, Judge Brown entered a modified temporary custody order. The modified temporary custody order changed the custody provisions as follows:
3. That, pending further Orders of the Court, the parties shall have the joint physical custody of the parties' aforesaid minor child in accordance with the following provisions contained herein:
In addition, the court terminated plaintiff's ongoing child support obligation. Judge Brown then entered an order recusing herself from this matter on 9 July 2013 to avoid any question of impartiality.a. Alternative Weekly Schedule: The parties shall share the physical custody of the minor child for a seven (7) day period beginning Monday, January 30, 2012. The parties shall exchange the minor child at the daycare every Monday.
On 11 July 2013, defendant filed a Rule 52 and Rule 59 motion seeking to have the temporary modified custody order set aside. After Judge Brown's recusal, the case was assigned to Judge Henderson. Judge Henderson continued the hearing on defendant's Rule 52 and 59 motion on multiple occasions to allow time for him to review the audiotapes of the January 2012 hearing. On 6 November 2014, Judge Henderson entered an order concluding that there were sufficient findings in Judge Brown's 3 July 2013 order to support a substantial change of circumstances, to enter a temporary order, and to bring in the Counsel for Children's Rights to investigate. Further, Judge Henderson found that defendant had failed to show sufficient grounds to amend or vacate the 3 July 2013 order and, therefore, denied defendant's motion. Defendant appealed to this Court from Judge Brown's 3 July 2013 order and Judge Henderson's 6 November 2014 order.
Discussion
We must first address the jurisdiction of this Court to hear this appeal. Plaintiff has moved to dismiss this appeal on the grounds that defendant has appealed from an interlocutory temporary custody order that does not affect a substantial right. "[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) (quoting 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).
At the conclusion of the hearing on plaintiff's motion to modify the permanent custody order, Judge Brown directed defendant's counsel to prepare the order. Judge Brown explained that the order would be "a temporary arrangement . . . . I want you both to understand it could change based on the recommendation and based on any further information . . . ." Judge Brown explained that she appointed the Counsel for Children's Rights as GAL because she was concerned that "there's a possibility of munch hausen [sic] syndrome on the part of the mother." Judge Brown intended to re-visit the matter four months later and issue her final ruling, after the GAL was able to conduct an investigation into the home lives of both parents. The modified temporary custody order, however, was not entered until 3 July 2013, roughly 18 months after the hearing. Despite the delay in the entry of the order, the order still provided that the parties would return to court within four months of the hearing on the motion to modify the custody order.
While Judge Brown's explanation at the close of the hearing indicated that she viewed the order as temporary and without prejudice to either party, the actual order did not specifically express the intent that it be without prejudice. However, the order did include a "clear and specific reconvening time" that amounted to a relatively brief interval between hearings: four months after the initial hearing. Senner, 161 N.C. App. at 81, 587 S.E.2d at 677. See File v. File, 195 N.C. App. 562, 568, 673 S.E.2d 405, 410 (2009) ("We deem approximately five months to be a reasonably brief time for a reconvening hearing. As the trial court order states a clear and specific reconvening time in the order and the time interval between the two hearings was reasonably brief[,] we conclude the order was temporary and thus interlocutory." (internal citations and quotation marks omitted)). We recognize that because of the delay in the entry of the order, which the record suggests was caused by defendant's counsel, the time lapse between the hearing that gave rise to the order and the next hearing was substantial. Nevertheless, the issue is whether the order was intended to be temporary, and the record, including the text of the order itself, establishes that a reconvening hearing was supposed to take place only four months after the first hearing. Under File, because the order provided for the parties to reconvene in four months, the order was temporary.
We note, however, that in LaValley v. LaValley, 151 N.C. App. 290, 292-93, 564 S.E.2d 913, 915 (2002), this Court held that a temporary order was "converted into a final order when neither party requested the calendaring of the matter for a hearing within a reasonable time after the entry of the Order." No similar conversion exists here because the delay occurred prior to the filing of the temporary order and not afterwards. There was no acquiescence or acceptance of the order as took place in LaValley.
Since the order at issue in this case was a temporary order, we apply "[t]he general rule . . . 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, 195 N.C. App. at 569, 673 S.E.2d at 410 (internal quotation marks omitted). See also Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (holding that for order to be immediately appealable, "[t]he moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party").
Defendant did not present any arguments as to why the order affects a substantial right since defendant focused instead on arguing that the order was a final order and, therefore, not interlocutory. In child custody cases, this Court has held that when "the physical well being of the child is at issue, we conclude that a substantial right is affected that would be lost or prejudiced unless immediate appeal is allowed." McConnell v. McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 801, 804 (2002).
Here, however, the trial court ordered custody to be on a week on/week off schedule, beginning the Monday after the hearing. Given Judge Brown's conclusion that both parties could continue to have visitation rights, the minor child's well-being or potential endangerment does not seem to have been seriously at issue. Further, the court appointed a GAL who would be available if any issues arose as to the safety of the child. Moreover, as plaintiff asserts, "[t]he failure of Defendant-Appellant's counsel to prepare the custody order for 18 months after these hearings further indicates that Defendant-Appellant does not consider the safety of the child or acting in a timely manner to be a concern." Consequently, we find that the district court's 3 July 2013 custody modification order was temporary and did not affect a substantial right. Defendant has not, therefore, established grounds for appellate review of the 3 July 2013 order.
Defendant also argues on appeal that Judge Henderson committed an abuse of discretion by denying her amended Rule 52 and Rule 59 motion to set aside the 3 July 2013 order. Because she sought to set aside an interlocutory order, the order denying her motion is equally interlocutory. Since she has not shown that she is entitled to immediate appeal of the underlying order, she cannot establish a basis for an immediate appeal of the order seeking to set aside the underlying order. See Musick v. Musick, 203 N.C. App. 368, 371, 691 S.E.2d 61, 63 (2010) ("Accordingly, because defendant will not lose a substantial right if the permanent alimony order is not reviewed before final judgment, we hold that his appeal [of the denial of his Rule 59 motion to set aside the interlocutory permanent alimony order] is premature, and therefore dismiss his appeal as interlocutory."). Accordingly, we grant plaintiff's motion to dismiss and dismiss defendant's appeal.
DISMISSED.
Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).