Opinion
No. COA02-977
Filed 2 September 2003 This case not for publication
Appeal by plaintiff from order entered 11 March 2002 by Judge Napoleon B. Barefoot, Jr., in Brunswick County District Court. Heard in the Court of Appeals 3 June 2003.
Gary S. Lawrence for plaintiff appellant. The Del Re' Law Firm, by Benedict J. Del Re', Jr., for defendant appellee.
Brunswick County No. 01 CvD 2101.
Plaintiff Christine A. Caddell was married to defendant Harold L. Caddell, Jr., on 24 September 1990. During the marriage, Tiffany M. Caddell was born to the parties on 18 October 1993. Plaintiff had a child prior to the marriage, Whitney A. Caddell, born 9 March 1989, whom defendant adopted.
The parties separated on 21 October 2001. On 5 November 2001, plaintiff filed a complaint seeking post-separation support, alimony, custody, child support, equitable distribution and attorneys' fees. Defendant answered and counterclaimed for custody, child support, divorce from bed and board and equitable distribution on 3 December 2001. A hearing was held before the Honorable Napoleon Barefoot, Jr., on 28 February 2002, and an order was filed on 11 March 2002. The trial court found that there was insufficient evidence to show that plaintiff was a dependent spouse. Therefore, the trial court granted defendant's motion to dismiss plaintiff's motion for post-separation support. Further, plaintiff's motion for attorneys' fees was denied. The trial court ordered defendant to pay $69.00 per month in child support and four months back child support. Plaintiff appeals.
I.
At the outset, we note that plaintiff appeals from an order that dismissed her claim for post-separation support, granted child support, and denied attorneys' fees, while not addressing or resolving her claims for alimony or equitable distribution. The order also does not address or resolve a counterclaim for divorce from bed and board. The order itself states that "[t]his cause is retained for entry of further Orders."
Although not raised by the parties, we are obliged first to consider sua sponte whether defendant's appeal is properly before this Court. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 246, 507 S.E.2d 56, 59 (1998).
An order "is either interlocutory or the final determination of the rights of the parties." N.C.G.S. § 1A-1, Rule 54(a) (2001). A final judgment "disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court[,]" while an interlocutory order "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. Durham, 231 N.C. 357, 361-362, 57 S.E.2d 377, 381 (1950).
Evans v. Evans, ___ N.C. App. ___, ___, 581 S.E.2d 464, 465 (2003).
Based on the record before us, the present appeal is taken from an interlocutory order, as it does not resolve all claims in the action. See generally, Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001).
In general, "there is no right to immediate appeal from an interlocutory order." Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002); N.C.G.S. § 1A-1, Rule 54(b) (2001). "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.'" Embler, [ 143 N.C. App. at 165, 545 S.E.2d at 262] (quoting Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)).
Evans, ___ N.C. App. at ___, 581 S.E.2d at 465.
The inquiry does not end here. There are two instances where a party may appeal from an interlocutory order. The first instance arises when there has been a final determination as to one or more of the claims, and the trial court certifies that there is no just reason to delay the appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). See Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513. The other avenue of appeal is where the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review. Id.; see N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1) (2001). "The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. Whether a substantial right is affected is determined on a case-by-case basis and should be strictly construed." Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513 (citations omitted). "A substantial right is `one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'" Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (quoting Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)).
In the present case, the order deals with fewer than all of the claims in the action, but the trial court made no express finding that there is no just reason for delay in accordance with Rule 54(b). Thus, we must determine whether the order appealed from affects a substantial right under N.C. Gen. Stat. §§ 1-277 7A-27(d). Our courts generally have taken a restrictive view of the substantial right exception. See Embler, 143 N.C. App. at 166, 545 S.E.2d at 262 (2001).
Plaintiff did not address the issue of its right to appeal the order at this time nor argue that its appeal implicates a substantial right. "`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. . . .'" Russell v. State Farm Ins. Co., 136 N.C. App. 798, 802, 526 S.E.2d 494, 497 (2000) (quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994)); see also N.C.R. App. P. 28(b)(4) (2003). While this is so, upon consideration of this case, we do not discern that plaintiff's appeal implicates a substantial right.
We note that this Court has held that a post-separation support order is a temporary measure, and as such it is interlocutory and not generally subject to immediate appeal. Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319 (1998); Wells v. Wells, 132 N.C. App. 401, 410, 512 S.E.2d 468, 474, disc. review denied, 350 N.C. 599, 537 S.E.2d 495 (1999). Further, "[i]nterlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right." Embler, 143 N.C. App. at 166, 545 S.E.2d at 262. It is clear that the order as to post-separation support does not affect a substantial right and this appeal is dismissed as to that claim. The same is true for the ruling denying plaintiff's motion for attorneys' fees under N.C. Gen. Stat. § 50-16.4 (2001).
Further, we note that this Court discussed post-separation support at length in Wells. Wells, 132 N.C. App. at 409-15, 512 S.E.2d at 473-76. Notably in this discussion, this Court discussed the precedential effect of a hearing on post-separation support:
[C]hanges in circumstance occurring between issuance of a [post-separation support] order and the permanent alimony hearing may well affect dependency status as well as other material issues . . . thereby mitigating against the conclusion that entitlement findings by the trial court during a PSS hearing are final and binding at subsequent proceedings.
Id. at 412, 512 S.E.2d at 475 (citation omitted). "To treat PSS otherwise would deter many dependent spouses from seeking needed support for fear they would be bound by a ruling based on incomplete evidence." Id. at 414, 512 S.E.2d at 475. Post-separation support can be appealed along with the alimony award, and retroactively awarded if the original order was in error. Therefore plaintiff can show no substantial right or that any irreparable damage by not being able to immediately appeal this order.
As to the order for child support, we again find that no substantial right is affected. As mentioned above, financial repercussions of divorce matters have not been held to affect a substantial right. See Embler, 143 N.C. App. at 166, 545 S.E.2d at 262. While these cases have not addressed a child support order specifically, we believe that, in this case, the order is not appealable. There is no evidence of record showing that the children for whom these payments are made will be in dire need because of the amount awarded. See, e.g., McConnell v. McConnell, 151 N.C. App. 622, 566 S.E.2d 801 (2002) (holding that an interlocutory child custody order was immediately appealable and did affect a substantial right based on the fact that the child's physical well being was in impending danger from a direct threat of sexual molestation if the custody order was not addressed). The evidence reveals that the wife, the appealing party, was awarded child support, is in control of all the marital assets, is allowing a tenant in a rental home to live rent free rather than collecting $300 a month, and that the husband is currently unemployed. We find no reason that a delay of this appeal will jeopardize a substantial right of plaintiff's, causing an injury that might be averted if appeal was allowed.
"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." Waters v. Personnel, Inc., 294 N.C. 200, 201, 240 S.E.2d 338, 340 (1978) (footnote omitted). Having concluded that plaintiff has appealed from an interlocutory order and no substantial right being affected, we therefore dismiss this appeal.
Dismissed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).