Harrison-Floyd v. Floyd

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-700 NORTH CAROLINA COURT OF APPEALS Filed: 4 February 2014 HAYLEY L. HARRISON-FLOYD, Plaintiff v. Pitt County No. 09 CVD 3555 JEFFREY W. FLOYD, Defendant. Appeal by defendant from judgment entered 10 January 2013 by Judge Darrell B. Cayton, Jr. in Pitt County District Court. Heard in the Court of Appeals 6 November 2013. Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C. Smith, III, and R. Gray Jernigan, for plaintiff-appellee. W. Gregory Duke for defendant-appellant. DAVIS, Judge. Jeffrey W. Floyd ( Defendant ) appeals court s equitable distribution judgment. that the trial mortgage making careful on an court erred in the parties marital equal division of (1) review, we conclude the distributing net the trial On appeal, he argues residence that from to marital the him; estate. Defendant s second and (2) After interlocutory -2appeal does not implicate a substantial right and should be dismissed. Factual Background Hayley L. Harrison-Floyd ( Plaintiff ) and Defendant were married on 29 November 1993, separated on 15 January 2010, and divorced on 4 August 2011. Two minor children were born of the marriage. 2009, On 12 against Defendant custody and October seeking support, Plaintiff divorce and from equitable filed bed and a complaint board, distribution. child Defendant filed an answer and counterclaim on 20 October 2009 seeking divorce from bed and board, child custody, child support, equitable distribution and interim equitable distribution, postseparation support and alimony, and attorney s fees. On 20 February 2010, the trial court entered an order (1) granting the parties temporary joint legal and physical custody of the minor children; (2) granting Defendant s claim for divorce from bed and board; (3) ordering Plaintiff to pay child support and post-separation support to Defendant; (4) ordering Plaintiff to vacate the former marital residence; and (5) requiring Defendant to pay at least $200 per month towards the equity line of credit encumbering the former marital residence. On 29 February 2012, the trial court entered an amended -3pretrial order by consent of the parties regarding their claims for equitable distribution. The pretrial order set forth several stipulations as to the classification and valuation of certain property and listed other property as to which the parties disputed either the value, the classification, or both. An equitable distribution hearing was held on 20 September 2012, and the trial court entered distribution on 10 January 2013. court determined that Plaintiff s separate subject equitable to the property a judgment of equitable In its judgment, the trial former and, marital for distribution. this The residence reason, trial was court was not also concluded that an equal division of the net marital estate was equitable. Defendant filed a notice of appeal on 4 February 2013. Analysis As an initial matter, we must determine whether we have jurisdiction over Defendant s interlocutory appeal. A judgment is either interlocutory or the final determination of the rights of the parties. N.C.R. Civ. P. 54(a). 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, -4but leaves it for further action by the trial court in order to settle and determine the entire controversy. Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 equitable (2007) (citation distribution omitted). judgment The leaves 10 January open for 2013 future resolution the parties claims for permanent child custody and permanent child support and, therefore, does not dispose of the entire case. As such, it is interlocutory. Generally, there is no right of interlocutory orders and judgments. immediate appeal from Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Review of an when interlocutory judgment is permissible, however, the judgment (1) affects a substantial right which would be lost absent immediate review, N.C. Gen. Stat. § 1-277(a); or (2) is final as to some but not all of the claims or parties and the trial court has certified the case for immediate appellate review pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. N.C. Dep t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). Here, the certification as trial to the court did equitable which Defendant seeks to appeal. not make distribution a Rule 54(b) judgment from Thus, the dispositive question -5for jurisdictional judgment affects purposes a is substantial whether right the such appeal is properly before this Court. trial that court s Defendant s Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).1 Our courts have described a substantial right as one that materially affect[s] those interests which a man is entitled to have preserved and protected by law: a material right. Oestreicher v. Am. Nat l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (citation and quotation marks omitted). The party seeking to appeal from an interlocutory order has the burden of jeopardized establishing unless he that is a substantial permitted to right would immediately be appeal. Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001). Here, Defendant acknowledges the interlocutory nature of the 1 trial court s equitable distribution judgment but claims We note that the General Assembly has recently amended Article 1 of Chapter 50 to create a statutory right of immediate appeal from an order or judgment adjudicating a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if the order or judgment would otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action. 2013 N.C. Sess. Law 411, § 2. This act became effective when it was signed into law by the Governor on 23 August 2013 and, as such, does not apply to Defendant s appeal, which was noticed on 4 February 2013. -6that the 10 January 2013 judgment affects a substantial right based on our decision in Soares v. Soares, 86 N.C. App. 369, 357 S.E.2d 418 (1987). We disagree. In Soares, the defendant sought to appeal from an order denying her claim for alimony and ordering the sale of the marital home in order to effectuate the equitable distribution of the parties marital property. The order specifically held open the matter for determination of the parties claims for equitable distribution and child support and, thus, was not a final judgment by its own terms. 418. This Court Id. at 370, 357 S.E.2d at concluded, however, that because the trial court s order required the sale of the marital residence, it affected a substantial right and entitled the defendant to an immediate appeal. Id. Here, conversely, the trial court did not direct the sale of the marital home; rather, it simply determined that the residence was Plaintiff s separate property and that only the value of the improvements made during the parties constituted marital property subject to distribution. marriage Defendant does not dispute the classification of the residence in his brief. Instead, he argues that the trial court abused its discretion because its decision to distribute the equity line -7of the mortgage debt to the non-title holder of the real property creates an untenable situation for both the Plaintiff and the Defendant in that Defendant is required to pay a debt on a home he neither owns nor possesses and Plaintiff s ability to own and possess the home is dependent on Defendant s ability to pay the debt. Defendant has failed to demonstrate how the present case is analogous to our decision in Soares. Nor has he offered any other argument as to why the trial court s distributional scheme would work injury . . . if not corrected before appeal from final judgment. Goldston, 326 N.C. at 726, 392 S.E.2d at 736; see Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 ( The appellants must present more than a bare assertion that the order affects a substantial right; they must demonstrate why the order affects a substantial right. ) (emphasis in original)), disc. review denied, 363 N.C. 653, 686 S.E.2d 515 (2009); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) ( [I]t is the appellant s burden to present appropriate grounds for this Court s acceptance of an interlocutory appeal . . . . ). Our courts have generally taken a restrictive view of the substantial right exception. . . . [and] [i]nterlocutory appeals that challenge only the financial repercussions of a separation -8or divorce generally have not been held to affect a substantial right. Embler, 143 N.C. App. at 166, 545 S.E.2d at 262 (determining that equitable distribution order was interlocutory and not immediately appealable because custody, child support, and alimony issues had not yet been resolved and failed to show substantial right was affected). appellant We conclude that Defendant has failed to establish that a substantial right will be affected unless he is allowed to immediately appeal from the trial court s 10 January 2013 judgment. Accordingly, we dismiss Defendant s appeal. Conclusion For the reasons stated above, Defendant s appeal is dismissed. DISMISSED. Judges ELMORE and McCULLOUGH concur. Report per Rule 30(e). interlocutory

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