Opinion
No. COA10-323
Filed 18 January 2011 This case not for publication
Appeal by Defendant from order entered 1 October 2009 by Judge J. Gary Dellinger in Catawba County District Court. Heard in the Court of Appeals 12 October 2010.
Crowe Davis, P.A., by H. Kent Crowe, for Plaintiff-Appellee. LeCroy and Willcox, PLLC, by M. Alan LeCroy, for Defendant-Appellant.
Catawba County No. 07 CVD 3914.
Melanie Foster Williamson (Defendant) appeals from the trial court's order resolving the issue of equitable distribution between Donald Lee Williamson (Plaintiff) and Defendant but leaving unresolved Defendant's counterclaim for alimony. We dismiss this appeal as interlocutory.
After separating from his wife on 26 July 2007, Plaintiff filed a complaint on 1 November 2007, seeking equitable distribution, possession of real and personal property, and injunctive relief barring Defendant from removing additional property belonging to Plaintiff and thereby depriving his rights to marital assets. Defendant filed an answer on 25 January 2008 and included therein counterclaims for divorce from bed and board, post-separation support, permanent alimony, attorney's fees, equitable distribution, child custody, and child support. Plaintiff was granted an absolute divorce on 9 October 2008, and the parties reached agreements to settle matters regarding post-separation support, child support, and custody, as evidenced by a memorandum of order for post-separation support entered 10 October 2008 and a final custody/child support order entered 26 August 2009 which was reduced to a formal order on 21 September 2009. A hearing on the equitable distribution claims was held on 21 and 22 April 2009, and the final equitable distribution order was entered on 1 October 2009. Defendant appealed "following the trial court's final judgment on the parties' cross-claims of equitable distribution," as she states in her brief, by filing notice with this Court on 7 October 2009, and she contends that this appeal is therefore "brought pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure." However, she acknowledges in her statement of the grounds for appellate review that "[a]t the time of the taking of this appeal, there remained between the parties an issue as to Defendant's claim for permanent alimony."
On 28 April 2010, Defendant filed a motion in this Court requesting additional time to amend the record on appeal and her brief on the grounds that she "reasonably expected the alimony issue to be resolved and finalized long prior to the receipt even of the transcript of hearing on the equitable distribution claim." Defendant alleged that the alimony issue was not tried and determined until one year after the hearing on the equitable distribution claims, and while "the trial court did announce its decision and ruling in open court" on 22 April 2010, the final written order as to the alimony counterclaim remains to be entered. This Court dismissed Defendant's motion without prejudice by order dated 12 May 2010, specifically directing her "to file a motion to consolidate pursuant to N.C.R. App. P. 40 after perfecting an appeal from the order for alimony." To date, we have received no Rule 40 motion to consolidate the equitable distribution appeal with an appeal regarding the alimony determination, nor is there any indication that the trial court has entered a final order resolving that issue. Plaintiff notes in his brief that this appeal does not, in fact, conform to Rule 3, as the order from which Defendant appeals was not a final judgment as to all claims between the parties and is therefore interlocutory. He also recognizes that Defendant did not obtain certification pursuant to Rule 54 of the North Carolina Rules of Civil Procedure and argues that the trial court's decision as to the equitable distribution claims does not affect a substantial right of Defendant.
Notwithstanding the fact that Plaintiff noted attention to the lack of finality in this case, he does not argue for dismissal of this appeal in his brief, and Defendant's motion requesting leave to amend the record and her brief allege that Plaintiff has indicated his preference that additional time be granted to avoid dismissal of the instant appeal as interlocutory. However, even when "the parties have not raised this issue, whether an appeal is interlocutory presents a jurisdictional issue, [and] this Court has an obligation to address the issue sua sponte." Webb v. Webb, 196 N.C. App. 770, 771-72, 677 S.E.2d 462, 463 (2009) (internal quotation marks and citation omitted). Where a final order or judgment, which is always appealable, disposes of the entire case and leaves nothing between the parties for judicial determination, "`[a]n 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.'" McIntyre v. McIntyre, 175 N.C. App. 558, 561-62, 623 S.E.2d 828, 831 (2006) (quoting Veazey v. Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950)). An interlocutory order is ripe for immediate appeal in only two circumstances:
First, "if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an immediate appeal will lie." Under Rule 54(b), the trial judge must certify that there is no just reason for delay. . . . The other situation in which an immediate appeal may be taken from an interlocutory order is when the challenged order affects a substantial right of the appellant that would be lost without immediate review.
Embler v. Embler, 143 N.C. App. 162, 165-65, 545 S.E.2d 259, 261 (2001) (internal quotation marks and citations omitted). Where the trial court did not certify its order pursuant to Rule 54(b), this appeal is premature unless Defendant can show that the equitable distribution ruling affects a substantial right.
"A substantial right is `one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment,'" which Defendant bears the burden of showing and this Court determines on a case-by-case basis. Id. at 165, 545 S.E.2d at 262. Defendant's Appeal Information Statement notes that although the order is not a final judgment as to all claims and all parties, it does affect a substantial right. However, she makes absolutely no argument in her brief as to how the trial court's equitable distribution order would affect a substantial right if she is not allowed an immediate appeal. In fact, Defendant's only qualification as to the admittedly pending nature of the alimony claim is her assertion that she "is waiting for the trial court's written judgment to be entered" and intends "to bring before this Court certain issues related also to her alimony claim." Thus, she proposes the exact scenario which the rule generally disallowing interlocutory appeals seeks to prevent. See id. at 165, 545 S.E.2d at 261-62 ("This rule is grounded in sound policy considerations. Its goal is to prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard." (internal quotation marks omitted)); Hunter v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d 244, 245-46 (1997) ("Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment." (internal quotation marks omitted)). Thus, Defendant must await entry of the alimony order and any other claims remaining between the parties and bring the equitable distribution issue, along with any other challenges, before this Court as part of an appeal from the final judgment.
Even if we made a determination as to the substantial right question, this Court generally does not invoke this exception in the context of equitable distribution and alimony matters. See Embler, 143 N.C. App. at 166, 545 S.E.2d at 262 ("Interlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right."); see also McIntyre, 175 N.C. App. at 563, 623 S.E.2d at 831 (holding order deciding equitable distribution claim and leaving open alimony claim was not immediately appealable); Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43 (1999) (holding order leaving equitable distribution claim open was not immediately appealable), aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999). Thus, where Defendant not only fails to discuss the interlocutory nature of her appeal and thereby does not meet her burden of identifying a substantial right, but also appeals from an equitable distribution order, which affects "only the financial repercussions of the parties' divorce," this appeal must be dismissed as interlocutory.
Dismissed.
Judges McGEE and HUNTER, JR. concur.
Report per Rule 30(e).