Appeal by defendant from Order entered 2 September 1999 by
Judge James M. Honeycutt in Iredell County District Court. Heard
in the Court of Appeals 14 February 2001.
Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse,
for plaintiff-appellee.
Cheshire, Parker, Schneider, Wells & Bryan, by Jonathan
McGirt, for defendant-appellant.
BIGGS, Judge.
Defendant-appellant appeals from an Equitable Distribution
Order entered by the trial court. We find this appeal to be
interlocutory in nature, and further find that no substantial right
of defendant's will be lost without immediate review. Accordingly,
we allow plaintiff's Motion to Dismiss Interlocutory Appeal, filed
7 June 2000.
Henry Embler, defendant-appellant, and Joann Embler,
plaintiff-appellee, were married in 1976, separated in 1993, andwere divorced in 1996. The couple had one child from the marriage.
On 10 June 1996, plaintiff filed a complaint seeking custody, child
support, attorneys' fees, absolute divorce, and equitable
distribution. Defendant filed a counterclaim for custody and child
support. The plaintiff's claim for equitable distribution was
heard before Judge Honeycutt on 15 March 1999. On 2 September
1999, the court entered an order finding that the distributional
factors in plaintiff's favor outweighed those in defendant's favor.
The trial judge awarded plaintiff sixty percent (60%) of the
marital estate; distributed specific property to each party; and
ordered the defendant to pay a distributive award of over $24,000
to the plaintiff. The court's order also states that “the issue of
alimony has not yet been heard.” (emphasis added).
Defendant appealed from the equitable distribution order on 30
September 1999. Several months later, on 20 January 2000, the
parties signed a consent order regarding child custody. Although
a dispute subsequently arose regarding the location where the
parties would exchange the child, this was resolved in an Order
entered 31 March 2000, leaving no further disputes regarding child
custody. On 1 May 2000 the defendant filed a Motion to Amend the
Record, and a Petition for Writ of Certiorari. The Motion to Amend
sought to insert into the Record a missing transcript page and a
copy of the Order resolving the dispute between the parties over
where to exchange their child. The Petition asked this Court to
entertain the appeal, notwithstanding the fact that the defendant'sappeal is from an order entered prior to resolution of the issues
of custody, child support, or alimony.
On 7 June 2000, plaintiff filed a Motion to Dismiss
Interlocutory Appeal. Plaintiff's Motion sought dismissal of
defendant's appeal on the ground that it had been filed before a
final resolution of all issues in the case. On 8 June 2000,
plaintiff notified defendant of her intention to seek a 31 July
2000 hearing on the issue of alimony. On 31 July 2000, plaintiff
filed a Motion to Amend the Record, seeking to add a Cross
Assignment of Error and several documents to the Record.
On 28 February 2001, this Court issued orders denying
defendant's Petition for Writ of Certiorari, and allowing
plaintiff's Motion to Amend the Record. We have allowed
defendant's Motion to Amend the Record. Upon review of the record,
briefs of the parties and applicable law, this Court concludes that
defendant has appealed prematurely, from an interlocutory order
that is not immediately appealable. Accordingly, we allow
plaintiff's Motion to Dismiss Interlocutory Appeal.
A judicial order is either “interlocutory or the final
determination of the rights of the parties.” N.C.G.S. § 1A-1, Rule
54(a) (1999). The distinction between the two was addressed in
Veazey v. Durham, 231 N.C. 354, 57 S.E.2d 377 (1950), wherein the
Court stated:
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 madeduring 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.
Id. at 361-62, 57 S.E.2d at 381 (citations omitted). A final
judgment is always appealable. However, an interlocutory order is
immediately appealable only under two circumstances. First, “if
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 N.C. Gen. Stat. § 1A-1, Rule 54(b), an immediate appeal
will lie.” N.C. Dept. of Transportation v. Page, 119 N.C. App.
730, 734, 460 S.E.2d 332, 334 (1995) (citations omitted). Under
Rule 54(b), the trial judge must certify that there is no just
reason for delay. Since there was no certification in the instant
case, this avenue of interlocutory appeal is closed to defendant.
The other situation in which an immediate appeal may be taken
from an interlocutory order is when the challenged order affects a
substantial right of the appellant that would be lost without
immediate review. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431
(1980); Goodwin v. Zeydel, 96 N.C. App. 670, 387 S.E.2d 57 (1990)
(where denial of motion to amend answer would result in forfeiture
of any future claim for equitable distribution, a substantial right
is at issue and the denial is immediately appealable). 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 appealcan be heard.” Bailey, 301 N.C. at 209, 270 S.E.2d at 434.
(citations omitted). “'Appellate procedure is designed to
eliminate the unnecessary delay and expense of repeated fragmentary
appeals, and to present the whole case for determination in a
single appeal from the final judgment.'” Hunter v. Hunter, 126
N.C. App. 705, 708, 486 S.E.2d 244, 245-46 (1997) (quoting Raleigh
v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)). An
appellant who objects to an interlocutory order should allow the
case to proceed, and then bring the issue before the Court as part
of an appeal from the final judgment. Yang v. Three Springs, Inc.,
142 N.C. App. 328, 542 S.E.2d 666 (2001).
In the instant case, defendant appeals from an equitable
distribution order that explicitly left open the related issue of
alimony. The parties do not seriously dispute that this was an
interlocutory order; even defendant “concedes that, in the strictly
formal sense, Appellee has a 'pending' claim for alimony.” The
issue before this Court is whether an immediate appeal lies from
this interlocutory order.
Immediate appeal from an interlocutory order depends upon a
finding by this Court that delay of the appeal will jeopardize a
substantial right of appellant's, causing an injury that might be
averted if the appeal were allowed. 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)), (substantial right not
affected by order granting summary judgment on contract claim but
not on tort claim).
Whether an interlocutory appeal affects a substantial right is
determined on a case by case basis. McCallum v. North Carolina
Cooperative Extension Service of N.C. State University, 142 N.C.
App. 48, 542 S.E.2d 227 (2001). Our courts generally have taken a
restrictive view of the substantial right exception. Blackwelder,
60 N.C. App. 331, 299 S.E.2d 777 (1983).
Interlocutory appeals that challenge only the financial
repercussions of a separation or divorce generally have not been
held to affect a substantial right. See, e.g., Stafford v.
Stafford, 133 N.C. App. 163, 515 S.E.2d 43 (1999) (parties seek
immediate review, prior to equitable distribution trial, of date of
separation used by trial court in its entry of order granting
absolute divorce; held not to affect substantial right where date
relevant only to equitable distribution claim); Rowe v. Rowe, 131
N.C. App. 409, 507 S.E.2d 317 (1998) (orders awarding
postseparation support not immediately appealable); Hunter v.
Hunter, 126 N.C. App. 705, 486 S.E.2d 244 (1997) (interim equitable
distribution order not immediately appealable); Dixon v. Dixon, 62
N.C. App. 744, 303 S.E.2d 606 (1983) (order requiring one spouse to
return property to marital home pending resolution of equitable
distribution and divorce actions not immediately appealable);
Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981)
(pendente lite awards not immediately appealable). The burden is on the appellant to establish that a substantial
right will be affected unless he is allowed immediate appeal from
an interlocutory order. Jeffreys v. Raleigh Oaks Joint Venture,
115 N.C. App. 377, 444 S.E.2d 252 (1994). Defendant has not argued
that his appeal implicates a substantial right, and we do not
discern one. As this Court noted in Stephenson, 55 N.C. App. 250,
285 S.E.2d 281:
[T]he matter could have been heard
on its merits and a final order
entered by the District Court . . .
months before the appeal reached
this Court for disposition. There
is an inescapable inference drawn .
. . that the appeal . . . is pursued
for the purpose of delay rather than
to accelerate determination of the
parties' rights. The avoidance of
deprivation due to delay is one of
the purposes for the rule that
interlocutory orders are not
immediately appealable.
Id. at 251, 285 S.E.2d at 282. There does not appear to be any
danger of inconsistent verdicts in this situation, nor of the loss
of a personal right, such as the right to trial by jury.
Defendant asserts in his Response to Appellee's Motion to
Dismiss Interlocutory Appeal that plaintiff has remarried,
rendering her claim for alimony “quixotic, if not utterly futile.”
However, plaintiff's alleged remarriage is not properly before this
Court; nor are any other events that purportedly have occurred
since the entry of the equitable distribution order.
Considerations of judicial economy militate towards deferring
our consideration of defendant's appeal until a final judgment has
been entered in this case. Defendant has appealed from aninterlocutory order, which does not affect a substantial right. We
find that there is no right to immediate appeal from this Order of
Equitable Distribution. Therefore, we grant plaintiff's Motion to
Dismiss Interlocutory Appeal.
Appeal Dismissed.
Judges WALKER and SMITH concur.
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