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Gaynor v. Gaynor

North Carolina Court of Appeals
Nov 1, 2010
701 S.E.2d 404 (N.C. Ct. App. 2010)


No. COA09-1675

Filed 2 November 2010 This case not for publication

Appeal by plaintiff from order entered 2 July 2009 by Judge Joseph A. Blick in Pitt County District Court. Heard in the Court of Appeals 14 September 2010.

Cheshire, Parker, Schneider, Bryan Vitale, by Jonathan McGirt, for plaintiff-appellant. Irvine Law Firm, PC, by David J. Irvine, Jr., for defendant-appellee.

Pitt County No. 08 CVD 2513.

Plaintiff James R. Gaynor appeals from the trial court's order determining the date that he and his ex-wife, plaintiff Virginia Faye Gaynor, separated. Based on this Court's prior decision in Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43, aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999), we conclude that the trial court's order is interlocutory and does not affect a substantial right. Accordingly, we dismiss plaintiff's appeal.


Plaintiff and defendant were married on 20 August 1988. During their marriage, they had two children J.G. (born August 1990) and A.G. (born October 1992). On 31 July 2008, plaintiff filed a complaint for absolute divorce, alleging that the parties separated on 16 April 1995. On 2 October 2008, defendant filed an answer, in which she also requested an absolute divorce but asserted that the date of separation was 10 September 2007, as well as counterclaims for child custody, child support, post-separation support, alimony, equitable distribution, and attorney's fees. The parties were divorced by an order of the trial court entered 6 November 2008. Plaintiff filed a response to defendant's counterclaims on 2 December 2008. At the request of the parties, the trial court held a hearing on 24 March 2009, at which the court "considered only the issue of the parties' date of separation," thus leaving defendant's counterclaims "for a later date." On 2 July 2009, the trial court entered an "Order determining Date of Separation," in which it concluded that the parties separated on 14 May 2006. Plaintiff filed a notice of appeal from the trial court's order on 30 July 2009. On 13 August 2009, defendant filed with the trial court a motion to dismiss plaintiff's appeal and for sanctions under Rule 11 of the Rules of Civil Procedure, arguing that plaintiff's appeal was taken in bad faith. The trial court denied defendant's motion.


Although plaintiff argues for reversal of the trial court's order determining the date of the parties' separation, the dispositive issue on appeal is whether the trial court's order is properly before this Court for review. Generally, "there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Interlocutory orders and judgments are those "made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). A final order or judgment, in contrast, "is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).

As the trial court's order determining the date of separation leaves unresolved defendant's counterclaims, including post-separation support, alimony, and equitable distribution, the court's order is interlocutory in nature. See, e.g., McIntyre v. McIntyre, 175 N.C. App. 558, 562, 623 S.E.2d 828, 831 (2006) (dismissing appeal from equitable distribution order as interlocutory where alimony claim remained pending); Stafford, 133 N.C. App. at 164, 515 S.E.2d at 44 (holding appeal from divorce order determining date of parties' separation was interlocutory as equitable distribution claim was pending); Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319 (1998) (concluding post-separation support order was interlocutory and not appealable).

An interlocutory order is, however, "immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed." Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002), appeal dismissed and disc. review denied, 357 N.C. 63, 579 S.E.2d 390 (2003). In either case, "it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal[.]" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).

The trial court's order in this case was not certified for immediate review pursuant to N.C. R. Civ. P. 54(b) and thus appellate jurisdiction exists, if it exists at all, under the substantial-right exception. When relying on this exception, the appellant bears the burden of showing that the trial court's judgment or order "affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment." Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975).

Plaintiff contends that "the trial court's adjudication of the parties' date of separation . . . affect[s] a substantial right" as "[t]he date of marital separation is a fundamental factual determination for each of the counterclaims of post-separation support, alimony, and equitable distribution that is still pending in Gaynor." Generally, "[i]nterlocutory appeals that challenge only the financial repercussions of a separation or divorce . . . have not been held to affect a substantial right." Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001). More specifically, in Stafford, 133 N.C. App. at 165, 515 S.E.2d at 45, a majority of this Court rejected the appellant's "assert[ion] [that] the trial court's `determination of the date of separation is so fundamental to an equitable distribution trial that it affects a substantial right[,]'" and concluded that "no substantial right of [the appellant] would be prejudiced absent immediate appellate review of the trial court's judgment."

Plaintiff acknowledges this Court's holding in Stafford, but argues that the dissent "in Stafford . . . is actually the correct statement of the law on this question[.]" See id. at 133 N.C. App. at 167, 515 S.E.2d at 46 (Greene, J., dissenting) ("[T]he trial court's determination of the date of separation in the divorce action precludes relitigation of that issue for purposes of equitable distribution, and it cannot be modified by another district court judge upon a showing of changed conditions because it is not a discretionary ruling, but rather is a ruling on a matter of law which can only be reversed on appeal. As such, the trial court's determination in this case affects a substantial right and is immediately appealable." (internal citations omitted)). Plaintiff claims, without citation of supporting authority, that this Court may ignore its prior decision in Stafford because the Supreme Court, in affirming the majority's dismissal of the appeal, did not address whether the trial court's divorce order adjudicating the date of separation affected a substantial right warranting immediate review. See Stafford, 351 N.C. at 95, 520 S.E.2d at 786 ("[T]he date of separation has no bearing in this case on the legality of the final divorce judgment. The contested fact concerning the date of separation is an issue in the equitable distribution claim, which can be raised in a later appeal, if any. Thus, this appeal is interlocutory and the decision of the Court of Appeals dismissing plaintiff's appeal is affirmed.").

This argument overlooks the fundamental principle of appellate review that "[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Plaintiff does not point to any authority, and we have found none, indicating that this Court's prior decision in Stafford has been overruled by the Supreme Court. Contra McIntyre, 175 N.C. App. at 563, 623 S.E.2d at 831 (citing this Court's opinion in Stafford for proposition that appeal from adjudication of date of separation was interlocutory and did not affect a substantial right); Embler, 143 N.C. App. at 166, 545 S.E.2d at 262 (same). We are, consequently, bound by its holding that an order by the trial court determining the parties' date of separation does not affect a substantial right entitling plaintiff to immediate review.


Judges Robert N. HUNTER, Jr. and WALKER concur.

Report per Rule 30(e).

Summaries of

Gaynor v. Gaynor

North Carolina Court of Appeals
Nov 1, 2010
701 S.E.2d 404 (N.C. Ct. App. 2010)
Case details for

Gaynor v. Gaynor

Case Details

Full title:JAMES R. GAYNOR, Plaintiff, v. VIRGINIA FAYE GAYNOR, Defendant

Court:North Carolina Court of Appeals

Date published: Nov 1, 2010


701 S.E.2d 404 (N.C. Ct. App. 2010)