Opinion
No. COA10-145
Filed 7 December 2010 This case not for publication
Appeal by plaintiff from judgment entered 3 August 2009 by Judge Thomas M. Brittain in Transylvania County District Court. Heard in the Court of Appeals 1 September 2010.
Dameron, Burgin, Parker Jackson, P.A., by Phillip T. Jackson, for plaintiff-appellant. Donald H. Barton for defendant-appellee.
Transylvania County No. 05 CVD 334.
Plaintiff Barry Hoyt Bodie appeals from an equitable distribution judgment entered by the trial court. As acknowledged by plaintiff, this appeal is interlocutory because a claim for alimony remains pending before the trial court. Under Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001), we must dismiss the appeal as the trial court's order does not contain a certification pursuant to Rule 54(b) of the Rules of Civil Procedure, and plaintiff has not demonstrated that any substantial right is at stake.
Facts
Plaintiff and defendant Claire Voegler Bodie were married on 16 April 1996 and have one child, born 2 July 1999. The parties separated on 2 July 2005, and plaintiff commenced this action for child custody and equitable distribution on 3 August 2005. On 18 August 2005, defendant filed her answer and counterclaims. The complaint, answer, and counterclaims placed the following issues in dispute: child custody, child support, divorce from bed and board, post-separation support, alimony, and equitable distribution. The parties were granted a divorce on 15 September 2006. On 18 December 2006, the trial court entered an order addressing the parties' claims for custody and child support.
The trial court conducted a hearing on equitable distribution on 30 January 2009, 3 March 2009, 5 May 2009, and 13 July 2009. An "Equitable Distribution Judgment" was entered on 3 August 2009. The trial court determined that an unequal division of the marital estate would be equitable, ordered distribution of certain marital assets and marital debts, required the sale of specified real property, and ordered plaintiff to pay defendant a distributive award of $100,000.00. The final paragraph of the judgment stated:
The Court retains jurisdiction in this matter to enter further orders, if necessary, in order to effect the equitable distribution that is herein ordered, otherwise, this judgment is a final judgment and is a full and final settlement of the parties' claims for equitable distribution.
Plaintiff appealed from the equitable distribution judgment on 1 September 2009.
Discussion
Since defendant's claim for alimony remains pending, 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."). An interlocutory order is immediately appealable under only two circumstances: (1) when 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 Rule 54(b) of the Rules of Civil Procedure; or (2) if the order or judgment affects a substantial right of the appellant that would be lost in the absence of immediate review. Embler, 143 N.C. App. at 164-65, 545 S.E.2d at 261.
Plaintiff first contends that the trial court's designation of this judgment as "a final judgment" and "a full and final settlement of the parties' claims for equitable distribution" made the judgment immediately appealable under Rule 54(b). In order to fall under Rule 54(b), however, the trial court must have determined not only that the order is final as to one or more parties or claims, but must also "determine[] that there is no just reason for delay and include[] a statement to that effect in the judgment. . . ." Cunningham v. Brown, 51 N.C. App. 264, 266, 276 S.E.2d 718, 721 (1981) (internal quotation marks omitted).
When an order or judgment "does not state that the judge found no just cause for delay . . ., the order is not an immediately appealable `final judgment' under Rule 54(b). . . ." Id. at 266-67, 276 S.E.2d at 721-22. See also Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) ("Because the trial court in the case sub judice made no certification as required by Rule 54(b) of the North Carolina Rules of Civil Procedure, the first avenue of appeal is closed to [appellant]."); Hall v. Hall, 28 N.C. App. 217, 218, 220 S.E.2d 158, 158 (1975) (dismissing appeal from interlocutory order dismissing alimony claim because "judge did not find there is no just reason for delay"). Since the judgment in this case did not include a finding that there is "no just reason for delay," Rule 54(b) cannot provide a basis for appellate jurisdiction.
Therefore, in order for plaintiff to immediately appeal the equitable distribution judgment, he must demonstrate that a substantial right will be adversely affected if this judgment is not remedied before entry of final judgment on the remaining issues. Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253-54.
Plaintiff argues that "[b]ecause the trial court has ordered the Plaintiff to continue to make mortgage, tax, and insurance payments on marital property[,] it affects a substantial right pursuant to N.C. Gen. Stat. § 1-277(a). . . ."
In Embler, just as in this case, the defendant appealed from an equitable distribution order even though a claim for alimony remained pending. 143 N.C. App. at 165, 545 S.E.2d at 262. In dismissing the appeal, this Court reiterated that "[i]nterlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right." Id. at 166, 545 S.E.2d at 262. See also McIntyre v. McIntyre, 175 N.C. App. 558, 562, 623 S.E.2d 828, 831 (2006) (dismissing, based on Embler, appeal of equitable distribution order when alimony claim remained pending).
We find this case materially indistinguishable from Embler and McIntyre. Since the trial court's order was not certified for immediate appeal under Rule 54(b) and since, under Embler and McIntyre, plaintiff has failed to demonstrate the existence of a substantial right, we are required to dismiss the appeal.
Dismissed.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).