Opinion
No. COA12–1181.
2013-05-21
Shelly Ingram SNIDER, Plaintiff v. Michael Brent SNIDER, Defendant.
Sodoma Law, P.C., by Kary C. Watson, for Plaintiff–Appellee. Douglas S. Harris for Defendant–Appellant.
Appeal by defendant from order entered 7 March 2012 by Judge William C. Kluttz in Rowan County District Court. Heard in the Court of Appeals 27 February 2013. Sodoma Law, P.C., by Kary C. Watson, for Plaintiff–Appellee. Douglas S. Harris for Defendant–Appellant.
ERVIN, Judge.
Defendant Michael Brent Snider appeals from an order entered by the trial court distributing items determined to constitute marital and divisible property between Defendant and Plaintiff Shelly Ingram Snider. On appeal, Defendant argues that the trial court erred by finding that certain real property belonged to Plaintiff's father and was not subject to distribution between the parties, by finding that an $11,000 gift from members of Defendant's family should not be treated as Defendant's separate property, by valuing and addressing certain of the parties' debts in the manner set out in the trial court's equitable distribution order, and by failing to consider all relevant distributional factors in the course of making its distribution decision. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that Defendant has attempted to appeal from an unappealable interlocutory order and that his appeal from the trial court's order should be dismissed.
I. Factual and Procedural Background
The parties were married on 15 September 1990, and separated on 1 October 2006. On 26 February 2009, Plaintiff filed a complaint seeking a divorce and equitable distribution of the parties' marital and divisible property. On 30 March 2009, Defendant filed an answer in which he admitted Plaintiff's divorce-related allegations and requested that the parties' marital and divisible property be equitably distributed. On 21 April 2009, the trial court granted the requested divorce. A hearing was held before the trial court for the purpose of addressing the parties' equitable distribution claims on 17 November 2010. On 7 March 2012, the trial court entered an order distributing the parties' marital and divisible property. Plaintiff noted an appeal to this Court from the trial court's order.
II. Legal Analysis
“A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. 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.” Veazey v. Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950)) (citation omitted). As a general rule, “there is no right of immediate appeal from interlocutory orders and judgments.” Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (citation omitted). The general rule barring immediate appeals from interlocutory orders is, however, subject to two exceptions:
First, a party is permitted to appeal from an interlocutory order when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. Second, a party is permitted to appeal from an interlocutory order when the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.
Bullard v. Tall House Bldg. Co., 196 N.C.App. 627, 637, 676 S .E.2d 96, 103 (2009) (citations and quotation marks omitted). As a result of the fact that the trial court has not certified the equitable distribution order for immediate appeal, the only possible basis upon which the equitable distribution order, if it is determined to be interlocutory, could be deemed immediately appealable would be in the event that it affected a substantial right.
“An interlocutory order affects a substantial right if the order ‘deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered .’ The determination of whether an interlocutory order affects a substantial right requires application of a two-part test. First, the order must affect a right that is ‘substantial.’ Second, deprivation of the substantial right must potentially work injury if not corrected before an appeal from final judgment.” In re Will of Johnston, 157 N.C.App. 258, 261, 578 S.E.2d 635, 638 (quoting Cook v. Bankers Life and Casualty Co., 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991), and citing Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (additional citations omitted), aff'd,357 N.C. 569, 597 S.E.2d 670 (2003). We will utilize these basic principles to determine the validity of Plaintiff's challenge to Defendant's right to seek review of the trial court's equitable distribution order at this time.
Near the conclusion of the equitable distribution hearing, Plaintiff's counsel indicated that, in the event that Plaintiff were ordered to pay a large distributive award, an additional hearing might be required to address the manner in which that award should be paid. At that point, the following proceedings occurred:
THE COURT: Thank you very much. I will take this under advisement. I will notify both of you when I have come up with a decision and, at that point, I will see if either or both of you feel we need to reconvene.
[PLAINTIFF]: ... It's depending on the amount it is. If it's not a large amount, she may be able to come up with it in some form or fashion. Depending on the amount it is, we may need to request that it be paid in distributive payments and, of course, at that point you'll probably need to hear evidence as to earnings and ability to pay those payments.
Consistent with this discussion, the trial court stated in its equitable distribution order, among other things, that:
3. Plaintiff shall pay to Defendant the sum of $14,485.00 as a distributive award.
4. This cause remains open for a determination as to the manner of payment of the distributive award and if the parties cannot resolve this issue by supplemental consent order, this matter shall be placed before the undersigned Judge for a hearing on the issue of the manner of re-payment.
As a result, the trial court's order clearly contemplated that further proceedings would be necessary for the purpose of determining and memorializing the manner in which the required distributive award would be paid.
In her brief, Plaintiff argued that Defendant's appeal should be dismissed as having been taken from an unappealable interlocutory order on the grounds the trial court held the matter open for further proceedings; that the “record on appeal contains no supplemental consent order or other order addressing the issue specifically reserved above”; and that, until “such an order is entered by the trial court[,] there has been no final judgment and the Equitable Distribution Order remains an interlocutory order.” Although Defendant characterized the equitable distribution order as a “final order” in his principal brief, Defendant neither disputed the absence of an order addressing the “manner of payment” issue from the record in his reply brief nor sought leave to amend the record to add any such document. Instead, Defendant sought to rebut Plaintiff's challenge to the appealability of the trial court's equitable distribution order on the grounds that the trial court had “merely retained jurisdiction for future matters in the event the Parties could not agree on the manner of payment” and that the manner of payment issue was simply “a contingent matter that did not necessarily require any further action ever by the Court.” In spite of Defendant's argument to the contrary, however, the equitable distribution order specifically states that a “supplemental consent order” would be required even if the parties reached agreement concerning the “manner of payment” issue. As a result, since further action by the trial court would inevitably be necessary regardless of the extent to which the parties reached agreement about the manner in which the distributive award contemplated by the trial court's order should be paid, the order at issue here is clearly interlocutory in nature.
In addition, we conclude that Defendant has failed to establish that a substantial right would be adversely affected in the event that he was deprived of an immediate appeal from the trial court's equitable distribution order. Although Defendant argued in his reply brief that his “substantial rights would be affected unless [he] is allowed immediate appeal from an otherwise interlocutory order,” the only “substantial right” that he has identified is “the right to avoid the possibility of multiple trials with conflicting results on the same issue.” In support of his contention that he was entitled to immediate review of the trial court's equitable distribution order on this basis, Defendant notes that the parties agree that the trial court made a mathematical error in its equitable distribution order and posits that, if the trial court were to conduct a hearing on the “manner of payment” issue, it would then enter an order incorporating this mathematical error, which would later require correction on appeal. Defendant has not, however, articulated any reason for believing, particularly given that the parties apparently agree that the mathematical error in question actually occurred, that the trial court would reiterate its earlier error in any order addressing the “manner of payment” issue rather than simply correcting the admitted error at that time. In addition, Defendant has not explained how the entry of an additional order addressing the “manner of payment” issue which incorporated the mathematical error in question would produce “conflicting results on the same issue” of the type required by North Carolina's “substantial right” jurisprudence. Finally, Defendant has failed to identify any other “substantial right” that might be jeopardized in the event that appellate review of the trial court's equitable distribution order was delayed until after the entry of a final order in this proceeding. As a result, given that Defendant's appeal has been taken from an interlocutory order and that Defendant has failed to establish that the order in question affected a substantial right, we conclude that we lack jurisdiction over Defendant's appeal from the trial court's equitable distribution order and that Defendant's appeal should be dismissed.
APPEAL DISMISSED. Judges BRYANT and ELMORE concur.
Report per Rule 30(e).