Summary
holding order leaving equitable distribution claim open was not immediately appealable
Summary of this case from Williamson v. WilliamsonOpinion
No. COA98-1306
Filed 4 May 1999
Appeal and Error — appealability — divorce judgment — remaining issues reserved — appeal premature
An appeal from a divorce judgment was dismissed where plaintiff sought an absolute divorce and equitable distribution, the trial court determined the date of separation, granted an absolute divorce, and reserved the remaining issues for later hearing, and defendant appealed. While the trial court's determination of the date of separation may have an impact on the unresolved issue of equitable distribution, the same factual issues are not involved, the threat of inconsistent verdicts is not present, and no substantial right of defendant would be prejudiced absent immediate appellate review.
Judge GREENE dissenting.
Appeal by defendant from judgment entered 23 April 1998 by Judge Peter L. Roda in Buncombe County District Court. Heard in the Court of Appeals 19 April 1999.
Pitts, Hay, Hugenschmidt Devereux, P.A., by James J. Hugenschmidt, for plaintiff-appellee.
Jackson Jackson, by Phillip T. Jackson, for defendant-appellant.
The parties were married on 11 October 1980. Plaintiff filed a complaint on 14 May 1996 in which she sought an absolute divorce. She subsequently filed an amended complaint in which she also sought equitable distribution of marital property. Defendant filed a motion to dismiss, which the trial court denied, and later filed his answer and counterclaim. Plaintiff then filed a reply to defendant's counterclaim.
On 3 March 1998, the matter came on for hearing on the issue of absolute divorce, which was severed from the remaining issues in this cause with the parties' consent. The trial court determined the parties' date of separation to be the first week of October, 1992. After granting plaintiff an absolute divorce from defendant, the trial court reserved the remaining issues in this cause for later hearing. From the trial court's judgment, defendant appeals.
The initial issue presented by this appeal is whether it is premature. Although defendant asserts that the trial court's judgment is a final judgment within the meaning of N.C. Gen. Stat. § 7A-27(c) (1995), we disagree. The trial court's judgment "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. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Additional issues raised by the amended complaint, including equitable distribution, have not been resolved. The judgment is therefore not final but rather interlocutory in nature. Id.
Generally, no right of appeal lies from an interlocutory judgment. State ex rel. Employment Security Comm. v. IATSE Local 574, 114 N.C. App. 662, 442 S.E.2d 339 (1994). If there is no right of appeal, it is the duty of an appellate court to dismiss the appeal on its own motion. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). "The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts." Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985).
Defendant argues in the alternative that the judgment affects a substantial right and that he is entitled to pursue this appeal pursuant to N.C. Gen. Stat. § 7A-27(d)(1). To be immediately appealable on that basis, defendant has the burden of showing that: (1) the judgment affects a right that is substantial; and (2) the deprivation of that substantial right will potentially work injury to him if not corrected before appeal from final judgment. Goldston v. American Motors Corp., 326 N.C. 723, 392 S.E.2d 735 (1990). Whether a substantial right will be prejudiced by delaying appeal must be determined on a case by case basis. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).
In this matter, defendant asserts the trial court's "determination of the date of separation is so fundamental to an equitable distribution trial that it affects a substantial right. . . ." Defendant claims immediate review of the issues of this case are warranted for this reason and also in "the interest of judicial economy." Generally, the right to avoid a trial is not a substantial right, while avoidance of two trials on the same issues may be. Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982). A party must show that the same factual issues would be present in both trials and that the possibility of inconsistent verdicts on those issues exists. Moose v. Nissan of Statesville, 115 N.C. App. 423, 444 S.E.2d 694 (1994). Defendant has not made such a showing in this matter. While the trial court's determination of the parties' date of separation may have an impact on the unresolved issue of equitable distribution, the same factual issues are not involved. No threat of inconsistent verdicts is present. Thus, no substantial right of defendant would be prejudiced absent immediate appellate review of the trial court's judgment. This appeal is
Dismissed.
Judge SMITH concurs.
Judge GREENE dissents.