Opinion
No. COA12–1058.
2013-04-16
Lisa Ann MOORE, Plaintiff/Mother, v. Stuart Scott MOORE, Defendant/Father.
No brief filed on behalf of plaintiff-appellee. Hamilton Stephens Steele & Martin, PLLC, by Amy S. Fiorenza, for defendant-appellant.
Appeal by defendant from order entered 12 April 2012 by Judge Jena P. Culler in Mecklenburg County District Court. Heard in the Court of Appeals 29 January 2013. No brief filed on behalf of plaintiff-appellee. Hamilton Stephens Steele & Martin, PLLC, by Amy S. Fiorenza, for defendant-appellant.
DAVIS, Judge.
Defendant Stuart Scott Moore (“defendant”) appeals from the trial court's order dismissing his motion seeking to hold plaintiff Lisa Ann Moore (“plaintiff”) in contempt. After careful review, we conclude that defendant's interlocutory appeal does not implicate a substantial right and should be dismissed.
Factual Background
Plaintiff and defendant were married in April of 1992 and separated in May of 2004. The parties have one child together—“Jessica,” born January 1994.
“Jessica” is a pseudonym used to protect the identity of the child.
Plaintiff filed a complaint for child custody and child support on 20 March 2006. On 24 April 2006, the trial court entered a consent order (“Consent Order”) awarding physical custody of Jessica to plaintiff and joint legal custody to both parties. The Consent Order required defendant to pay $950.00 a month in child support and also determined the parties' respective responsibilities for paying Jessica's medical expenses.
On 5 December 2011, defendant filed a motion seeking both to modify his child support obligations under the Consent Order and to have plaintiff held in criminal and civil contempt (“Contempt Motion”). The Contempt Motion alleged 43 violations of the Consent Order by plaintiff and further asserted that plaintiff's actions had severely damaged the relationship between Jessica and defendant.
Twelve days after Jessica's eighteenth birthday, plaintiff filed a motion to dismiss the Contempt Motion pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief could be granted. Plaintiff's motion to dismiss cited Swanson v. Herschel, 174 N.C.App. 803, 805, 622 S .E.2d 159, 160 (2005), for the proposition that custody-related claims are moot once the minor child attains the age of majority.
Plaintiff's filing also contained motions of her own, including her request for an order (1) holding defendant in contempt for his failure to comply with the child support obligations contained in the Consent Order; and (2) requiring defendant to pay plaintiff's attorneys' fees and costs. On 12 April 2012, the trial court entered an order dismissing defendant's Contempt Motion “as to all custody-related issues” on mootness grounds based on the fact that Jessica was no longer a minor.
Defendant gave timely notice of appeal of the 12 April 2012 order. The above-referenced motions filed by plaintiff currently remain pending in the trial court as does defendant's motion to modify his child support obligations under the Consent Order.
Analysis
As an initial matter, we must determine whether we have jurisdiction to consider defendant's appeal.
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. 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.
Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation omitted). Because the 12 April 2012 order from which defendant appeals is not a final judgment, this appeal is interlocutory.
“Generally, there is 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). Review of an interlocutory order is permissible, however, when the order affects a substantial right. N.C. Gen.Stat. § 1–277(a) (2011). Thus, the dispositive question for jurisdictional purposes is whether the trial court's order affects a substantial right such that defendant's appeal is properly before this Court. Turner v. Norfolk S. Corp., 137 N.C.App. 138, 141, 526 S.E.2d 666, 669 (2000).
Our courts have described a substantial right as one that “materially affect [s] those interests which a man is entitled to have preserved and protected by law: a material right.” Oestreicher v. Am. Nat'l Stores, Inc., 290 N.C. 118, 130, 225 S .E.2d 797, 805 (1976) (citation and quotation marks omitted). See also Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994) (holding that party seeking to appeal interlocutory order must demonstrate 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”). “Essentially a two-part test has developed—the right itself must be substantial and the deprivation of that substantial right must potentially work injury ... if not corrected before appeal from final judgment.” Goldston, 326 N.C. at 726, 392 S.E .2d at 736.
With regard to defendant's motion to have plaintiff held in criminal contempt, it is clear that the trial court's dismissal of that motion did not affect a substantial right of defendant. In Patterson v. Phillips, 56 N.C.App. 454, 456, 289 S.E.2d 48, 50 (1982), this Court held that although “[t]he government, the courts and the people have an interest in the prosecution of criminal contempt charges ... the [appellant] individually has no substantial right to the relief requested.” The Court thus concluded that the opposing party's acquittal of criminal contempt charges did not affect a substantial right of the appellant and dismissed the appellant's interlocutory appeal of that issue. Id.
The same is true here. Criminal contempt is designed to “vindicate the dignity of the court” and punish acts that hinder the administration of justice. Id. Accordingly, the trial court's dismissal of defendant's motion seeking to have plaintiff held in criminal contempt does not affect a substantial right of defendant.
Nor can defendant show that the trial court's order dismissing his motion to have plaintiff held in civil contempt affects a substantial right. In Liggett Grp. v. Sunas, 113 N.C.App. 19, 24, 437 S.E.2d 674, 677 (1993), this Court stated that a substantial right is affected where the existence of overlapping factual issues between the claim that has been ruled upon and any claims that have not yet been determined creates the potential for inconsistent verdicts resulting from multiple trials. Thus, the appealing party must show that “(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.” N.C. Dep't of Transp. v. Page, 119 N.C.App. 730, 735–36, 460 S.E.2d 332, 335 (1995).
Here, the claims remaining for resolution in the trial court are plaintiff's motion to have defendant held in contempt, plaintiff's motion to recover attorneys' fees and costs from defendant, and defendant's motion to modify his child support obligations. Defendant contends that the overlapping factual issue “at the heart of all of these claims” is whether plaintiff's “own behavior resulted in (1) the alienation and destruction of the father/daughter relationship; (2) significant uninsured medical and psychiatric expenses which [d]efendant-[a]ppellant has paid or is being asked to pay ...; and (3) attorney's fees[.]”
“The mere fact that claims arise from a single event, transaction, or occurrence does not, without more, necessitate a conclusion that inconsistent verdicts may occur unless all of the affected claims are considered in a single proceeding.” Hamilton v. Mtge. Info. Serv., Inc., 212 N.C.App. 73, ––––, 711 S.E.2d 185, 190 (2011). Here, although the remaining claims do have some factual overlap with the Contempt Motion that was dismissed in the trial court's 12 April 2012 order, defendant has failed to meet his burden of showing the possibility of inconsistent verdicts absent this Court's consideration of the present appeal. For this reason, defendant's appeal must be dismissed as the trial court's ruling does not affect a substantial right.
Conclusion
For the reasons set out above, we dismiss defendant's interlocutory appeal.
DISMISSED. Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).