Summary
In Yule v. Yule, supra, oft-cited by our courts, it was held (at p. 141) that the court should exercise a sound discretion in ordering the writ, that it should not be issued in a doubtful case, that the debt should be certain, and that the defendant's intention of departure beyond the court's jurisdiction should sufficiently appear.
Summary of this case from Friedland v. IsquithOpinion
No. 05-406.
Filed February 7, 2006.
Cabarrus County No. 02 CVD 2442.
Appeal by plaintiff from order entered 11 October 2004 by Judge William G. Hamby, Jr. in Cabarrus County District Court. Heard in the Court of Appeals 9 January 2006.
D. Todd Paris, for plaintiff-appellant. The Law Office of Randell F. Hastings by Randell F. Hastings, for defendant-appellee.
Plaintiff and defendant were married on 29 June 1968. Defendant decided to separate from plaintiff, and moved out of the marital home in early January of 2000. On 26 January 2000, the parties executed a homemade "Separation Agreement" drafted by defendant. It contains schedules specifying the property that each party was to receive. The agreement makes no mention of some of the parties' most valuable assets, including defendant's IBM retirement plan worth an estimated $244,000.00, and plaintiff's automotive tools worth an estimated $30,000.00. On 11 October 2002 plaintiff filed a complaint asserting three claims: (1) an absolute divorce; (2) a declaration by the trial court that the separation agreement be declared null and void; and (3) for an equitable distribution of marital property. Plaintiff specifically requested that if the court found the separation agreement to be valid, that equitable distribution be granted as to "marital and divisible property acquired by the parties which are not specifically mentioned and/or divided by the parties in said document. . . ."
An absolute divorce was granted by judgment entered 19 February 2004. This judgment preserved plaintiff's other claims for later disposition by the court. By order entered 11 October 2004, the trial court rejected plaintiff's assertion that the separation agreement was void, ordering "that the plaintiff's cause of action to set aside the parties['] Separation and Property Settlement Agreement so that the plaintiff be allowed to proceed with an equitable distribution claim, be and hereby is dismissed." From this order plaintiff appeals.
The threshold issue is whether plaintiffs' appeal is premature. "An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). This Court has stated:
There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) `if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review.'
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996)); see also N.C. Gen. Stat. § 1-277(a) (2004); N.C. Gen. Stat. § 7A-27(d)(1) (2004).
The order of the trial court contains the following findings of fact:
9. Some items of marital property are not mentioned in the Separation Agreement, including but not limited to, the defendant's IBM Retirement and the plaintiff's work tools. . . .
10. Both parties acknowledge that they were aware of these and other items of marital property which were not included in the Separation Agreement. Further, both parties acknowledge that they were aware of the existence of these items both at the time of this Agreement and at the time that the plaintiff alleges was their final separation in July or August of 2000.
11. The parties, by their actions, have substantially complied with the terms outlined in the Separation Agreement, although there is some dispute about whether the terms of the Separation Agreement have been precisely followed. . . .
The order is devoid of any findings of fact or conclusions of law that state that the separation agreement disposed of the assets not specifically mentioned in the separation agreement. It only orders that the plaintiff's claim to set aside the separation agreement is dismissed. This Court will not engage in speculation as to whether the trial court intended to dispose of all plaintiff's remaining claims by its order. On the face of the order, the claim for equitable distribution of assets not covered by the separation agreement had not been finally ruled upon by the trial court.
Plaintiff does not argue that this interlocutory order deprives him of some substantial right. The trial court has not certified this issue for appeal pursuant to N.C.R. Civ. P. 54(b). This appeal is not properly before this Court. Turner, 137 N.C. App. at 141, 526 S.E.2d at 669 . Accordingly, we hold that this appeal is premature, and it is therefore dismissed.
APPEAL DISMISSED.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).