Opinion
No. COA10-1189
Filed 15 March 2011 This case not for publication
Appeal by Defendant from order entered 5 February 2010 by Judge Dennis J. Redwing in Stanly County District Court. Heard in the Court of Appeals 22 February 2011.
Stephanie Ritchie, Plaintiff, pro se. Ferguson, Scarbrough, Hayes, Hawkins DeMay, P.A., by James R. DeMay, for Defendant.
Stanly County No. 04-CVD-927.
On 30 June 2004, Plaintiff Stephanie Ritchie filed a complaint against her husband in Stanly County District Court, setting forth claims for child custody, child support, postseparation support and alimony, equitable distribution, a restraining order, and attorney fees. On that same date, the trial court granted Plaintiff's restraining order claim.
On 22 July 2004, Defendant Christopher D. Ritchie filed his answer to Plaintiff's complaint and also counterclaimed against Plaintiff for temporary child custody, child support, equitable distribution, and divorce from bed and board.
On 8 August 2007, the trial court issued a memorandum of order that (1) required the parties to produce various documents and submit affidavits for equitable distribution, (2) ordered the parties to schedule mediation, and (3) stated that the parties' claims for equitable distribution, alimony and attorney fees, and child support modification were still pending for resolution by the trial court.
The parties submitted the documents and affidavits to the court, and on 5 February 2010, Judge Dennis J. Redwing filed a "2nd Amended Findings of Fact, Conclusions of Law, and Order" (the "Order"), in which Judge Redwing created a distribution schedule for the parties' marital property and ordered the parties to make payments in accordance with that schedule. On 25 February 2010, Defendant filed notice of appeal to this Court.
In his brief, Defendant asserts that a first "Finding of Fact, Conclusions of Law, and Order" on equitable distribution was entered on 28 July 2009. This document is not included in the Record on Appeal.
On appeal, Defendant states in his brief that the Order is a "final judgment appealable under N.C. Gen. Stat. § 7A-27." We disagree. "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." Tridyn Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 488, 251 S.E.2d 443, 445 (1979) (ellipsis omitted) (quoting Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)). In this case, the Order disposes only of the parties' claims for equitable distribution and fails to address the parties' other pending claims, including the claims for postseparation support, alimony, and attorney fees. Accordingly, the Order is not a final judgment, but, rather, is an interlocutory order. Id. ("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.").
Although Plaintiff does not dispute Defendant's claim that the Order is a final judgment and, thus, properly before this Court, "`[i]t 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.'" Yordy v. N.C. Farm Bureau Mut. Ins. Co., 149 N.C. App. 230, 230-31, 560 S.E.2d 384, 385 (2002) (quoting Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980)) (bracket in original).
An interlocutory order is only immediately appealable if it has been certified by the trial court (which the Order herein has not been) or if it affects a substantial right of the appellant. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2009); N.C. Gen. Stat. § 1-277(a) (2009) ("An appeal may be taken from every judicial order or determination of a judge of a superior or district court . . . which affects a substantial right claimed in any action or proceeding[.]"). However, because Defendant did not acknowledge in his brief that the appeal is interlocutory and, thus, did not establish to this Court which, if any, substantial right would be affected absent immediate review, the Order is not appealable based on any potential deprivation of a substantial right. N.C. R. App. P. 28(b)(4) (2010) ("An appellant's brief shall contain . . . [a] statement of the grounds for appellate review. . . . 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." (emphasis omitted)); see also Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) ("It 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.").
We note that this Court has often held that interlocutory orders deciding an equitable distribution claim and leaving open other claims in a domestic dispute are not immediately appealable. See, e.g., McIntyre v. McIntyre, 175 N.C. App. 558, 563, 623 S.E.2d 828, 831 (2006) (holding order deciding equitable distribution claim and leaving open alimony claim was not immediately appealable); Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001) (dismissing as interlocutory appeal from equitable distribution order). Based upon our review of the record, there is nothing about this appeal to differentiate it from the divers other appeals from similar interlocutory orders — i.e., orders deciding one of several claims for relief in a domestic relations proceeding and leaving open the other claims — that have been dismissed as interlocutory by this Court. Accordingly, Defendant's appeal is DISMISSED.
Panel consisting of Judges HUNTER, ROBERT C., STEPHENS, and ERVIN.
Report per Rule 30(e).