Opinion
No. COA15-839
04-19-2016
CYNTHIA W. MAJERSKE, Plaintiff, v. TIMOTHY S. MAJERSKE, Defendant.
Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney, for Plaintiff-Appellant. No brief for Defendant-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Cumberland County, No. 08 CVD 6664 Appeal by Plaintiff from order entered 15 July 2013 by Chief Judge A. Elizabeth Keever in District Court, Cumberland County. Heard in the Court of Appeals 25 January 2016. Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney, for Plaintiff-Appellant. No brief for Defendant-Appellee. McGEE, Chief Judge.
Cynthia W. Majerske (now Richards) ("Plaintiff") appeals from an order modifying her alimony payments to Timothy S. Majerske ("Defendant"). This Court does not have appellate jurisdiction to decide this matter, and Plaintiff's appeal is therefore dismissed.
I. Background
Plaintiff and Defendant were married in July 1995 and separated in December 2007. During the marriage, Plaintiff and Defendant had two children. The trial court entered a consent order on 19 February 2009, resolving the parties' claims relating to alimony and equitable distribution. The trial court entered an order on 26 August 2009, resolving the parties' claims relating to custody and extending a previously entered temporary child support order.
Plaintiff filed a motion to modify custody and child support on 3 June 2010. That motion appears to have not fully resolved until 31 December 2014, when the trial court entered two orders ("the December 2014 orders") "resolv[ing] all pending matters in this action." Defendant filed a motion to modify alimony on 3 October 2012. While Plaintiff's motion to modify custody and child support was still pending, the trial court entered an interlocutory order modifying alimony on 15 July 2013 ("the July 2013 alimony modification order"). Plaintiff filed a notice of appeal from the July 2013 alimony modification order on 13 January 2015.
II. Jurisdiction
Before reviewing the merits of Plaintiff's appeal, this Court must first determine whether we have jurisdiction. "A jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Specifically, "[w]ithout proper notice of appeal, this Court acquires no jurisdiction." Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (quotation marks omitted); accord Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991) (per curiam) ("If the [notice of appeal] requirements of [Rule 3 of the North Carolina rules of Appellate Procedure] are not met, the appeal must be dismissed.").
In the present case, Plaintiff challenges the July 2013 alimony modification order. In her brief before this Court, Plaintiff acknowledges that the July 2013 alimony modification order "was interlocutory at the time it was entered[.]" However, she further contends that entry of the December 2014 orders "made [the July 2013 alimony modification order] a final judgment." This, however, is an incorrect statement of law.
"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) (emphasis added). Conversely, a "final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Id. at 361-62, 57 S.E.2d at 381 (emphasis added). In the present case, final judgment was rendered when the December 2014 orders were entered. Although Plaintiff filed a notice of appeal within thirty days after entry of the December 2014 orders, she appeals only "from the Order on Defendant's Motion to Modify Alimony entered on 15 July 2013" and, therefore, has not vested this Court with jurisdiction to her hear appeal.
Generally, an appellant "must file and serve a notice of appeal . . . within thirty days after entry of judgment[.]" N.C.R. App. P. Rule 3(c).
As a general rule, an "appeal lies of right directly to the Court of Appeals . . . [f]rom any final judgment of a district court in a civil action." N.C. Gen. Stat. § 7A-27(b)(2) (2015) (emphasis added). When appealing from a final judgment, however, an appellant must reference that judgment in its notice of appeal because an appellate court ordinarily "obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken." See Chee v. Estes, 117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994) (emphasis added); see also N.C.R. App. P. Rule 3(d) (providing that a notice of appeal in a civil case must "designate the judgment or order from which appeal is taken"); cf. State v. Miller, 205 N.C. App. 724, 725-26, 696 S.E.2d 542, 542-43 (2010) (in the criminal context, dismissing a defendant's appeal because, he filed "a written notice of appeal 'from the denial of [his] motion to suppress,' but [the] [d]efendant did not appeal from his judgment of conviction").
By contrast, there generally "is no right of immediate appeal from interlocutory orders or judgments[.]" Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 686, 567 S.E.2d 179, 182 (2002). With some exceptions not relevant to the present case, "[a]n interlocutory decree . . . is reviewable only on appropriate exception upon an appeal from the final judgment in the cause." Love v. Moore, 305 N.C. 575, 578, 291 S.E.2d 141, 144 (1982) (emphasis added) (citing Veazey, 231 N.C. at 362, 57 S.E.2d at 382). "The rule forbidding interlocutory appeals is designed to promote judicial economy by eliminating the unnecessary delay and expense of repeated fragmentary appeals and by preserving the entire case for determination in a single appeal from a final judgment." (emphasis added)). Id. at 580, 291 S.E.2d at 146; accord Van Engen, 151 N.C. App. at 686, 567 S.E.2d at 182. Our caselaw is clear that an otherwise unappealable interlocutory order does not become a "final judgement" merely because a case is fully resolved, but instead may be challenged only in connection with "an appeal from the final judgment in the cause." See Love, 305 N.C. at 578, 291 S.E.2d at 144; see also N.C. Gen. Stat. § 1-278 (2015) ("Upon an appeal from a [final] judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment."); but cf. Combs & Associates, Inc. v. Kennedy, 147 N.C. App. 362, 367, 555 S.E.2d 634, 638 (2001) (holding that a party's "voluntary dismissal of [its] remaining claim [after entry of partial summary judgment] . . . has the effect of making the trial court's grant of partial summary judgment a final order.").
N.C.G.S. § 1-278 "provides another avenue by which an appellate court may obtain jurisdiction to review an interlocutory order" when the interlocutory order was not included in the notice of appeal from a final judgment, in violation of the notice of appeal requirements in Rule 3(d) of the North Carolina Rules of Appellate Procedure. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000) (quotation marks omitted); see N.C.R. App. P. Rule 3(d) (providing that a notice of appeal must "designate the judgment or order from which appeal is taken"). However,
[a]ppellate review pursuant to [N.C.G.S.] § 1-278 is proper [only] under the following conditions:Brooks, 139 N.C. App. at 641-42, 535 S.E.2d at 59 (emphasis added). Moreover, Von Ramm, 99 N.C. App. at 156-57, 392 S.E.2d at 424, does hold that "a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake." (quotation marks omitted). However, Von Ramm also held that an appellant did not properly appeal from a final judgment when the appellant appealed only from an order denying the appellant's Rule 59 motion to set aside the final judgment. Id. at 157, 392 S.E.2d at 425.
(1) the appellant must have timely objected to the order;
(2) the order must be interlocutory and not immediately appealable; and
(3) the order must have involved the merits and necessarily affected the [final] judgment.
In the present case, Plaintiff gave notice of appeal on 13 January 2015, within thirty days after entry of the December 2014 orders, see N.C.R. App. P. Rule 3(c), but Plaintiff's notice of appeal states that she is appealing only from "the Order on Defendant's Motion to Modify Alimony entered on 15 July 2013[.]" Plaintiff's notice of appeal does not indicate that she was appealing from either of the December 2014 orders. Accordingly, we do not have jurisdiction to review Plaintiff's appeal as part of an appeal from a final judgment. See N.C.R. App. P. Rule 3(d); accord Love, 305 N.C. at 578, 291 S.E.2d at 144. Moreover, Plaintiff has not articulated any other grounds upon which this Court might have jurisdiction to hear her appeal. "It is not the role of the appellate courts . . . to create an appeal for an appellant." Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Plaintiff's appeal is dismissed. See Dogwood, 362 N.C. at 197, 657 S.E.2d at 365.
DISMISSED.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).