Opinion
No. COA10-1278
Filed 21 June 2011 This case not for publication
Appeal by plaintiff from order entered 18 March 2010 by Judge Meredith A. Shuford in Lincoln County District Court. Heard in the Court of Appeals 9 March 2011.
Kristie Lea Williams pro se, plaintiff-appellant. James M. Chaney, Jr. pro se, defendant-appellee.
Lincoln County No. 08 CVD 1649.
Plaintiff Kristie Lea Williams appeals from an order providing for temporary modification of her visitation privileges and continuing a hearing on defendant James Marion Chaney Jr.'s motion for a psychological exam and modification of plaintiff's visitation. As this order is temporary, lasting only until defendant's motion can be heard, it is by definition interlocutory. Since no basis for appellate jurisdiction exists, we dismiss the appeal.
Facts
This matter has involved contentious litigation with various motions and hearings. We will not detail all of the proceedings here. Plaintiff and defendant married on 29 July 2000 and separated in January 2001. On 30 August 2001, plaintiff gave birth to the parties' minor child. The parties entered a consent order for permanent custody and visitation, filed on 11 June 2002, which granted plaintiff primary physical and legal custody of the minor child and granted defendant secondary physical custody.
On 27 January 2006, the trial court entered an order that modified custody, awarding defendant temporary primary physical and legal custody. On 3 December 2007, the court entered an order permanently granting defendant primary physical custody and plaintiff secondary custody of the minor child.
On 20 November 2009, the trial court entered an order entitled "Order Modifying Child Support (Temporary Order)." On 16 December 2009, plaintiff filed a motion seeking relief from the 20 November 2009 order and, on 6 January 2010, a supplemental motion for relief from that order. On 21 January 2010, defendant filed a reply to plaintiff's motions for relief, a motion for sanctions, a motion for a psychological exam of plaintiff, and a motion for modification of plaintiff's visitation.
Plaintiff's and defendant's motions were calendared to be heard before Judge Anna Foster, but due to Judge Foster's unexpected illness, were in fact heard by Judge Shuford. Judge Shuford entered an order on 18 March 2010 entitled "Order for Continuance and Temporary Modification of Visitation." In the order, Judge Shuford continued the hearing on defendant's motion for a psychological exam and modification of plaintiff's visitation because of Judge Foster's illness.
Judge Shuford, however, also made certain modifications to the terms of plaintiff's visitation privileges including a requirement that her visitation be supervised by specified individuals, a prohibition against other individuals attending the visitation, and a prohibition of videotaping or photography under specified circumstances. The order also ordered plaintiff not to discuss the pending litigation with her child or allow a third party to do so. The decretal portion of the order specified that these modifications were entered "[o]n a temporary basis." Plaintiff appealed from the 18 March 2010 order to this Court.
Discussion
Because the order that is the basis of this appeal is a temporary modification of visitation, it is by definition not a final order and this appeal is interlocutory. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) ("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."). Plaintiff, however, contends that the order is actually a final order and was simply mislabeled as a temporary order.
Nothing in the order supports plaintiff's contention. As the terms of the order indicate, the motions were being continued due to Judge Foster's illness. The modifications were added to temporarily address certain relatively minor issues until the matter could be heard by Judge Foster.
"A temporary child custody order is interlocutory and `does not affect any substantial right . . . which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits.'" Berkman v. Berkman, 106 N.C. App. 701, 702, 417 S.E.2d 831, 832 (1992) (quoting Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807, disc. review denied, 318 N.C. 505, 349 S.E.2d 859 (1986)). Consequently, we must dismiss this appeal.
Dismissed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).