Simpson v. Simpson

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-864 NORTH CAROLINA COURT OF APPEALS Filed: 3 June 2014 MADELINE C. SIMPSON (Cloud), Plaintiff, v. Forsyth County No. 95 CVD 6117 THURMOND H. SIMPSON, JR., Defendant. Appeal by plaintiff from order entered 28 January 2013 by Judge Laurie Hutchins in Forsyth County District Court. Heard in the Court of Appeals 8 January 2014. Vernon E. Cloud Jr. for plaintiff-appellant. No brief filed on behalf of defendant-appellee. DAVIS, Judge. Madeline Simpson, now Madeline Cloud ( Plaintiff ), appeals from the trial court s 28 January 2013 order (1) setting aside a prior order acknowledging Thurmond H. Simpson, Jr. ( Defendant ) as the father of Plaintiff s minor child; and (2) requiring the parties to undergo genetic testing. conclude that Plaintiff has failed After careful review, we to establish that her -2interlocutory appeal implicates a substantial right. Accordingly, we dismiss the appeal. Factual Background Plaintiff and Defendant were married on 10 August 1991 and divorced on 5 September 1996. One child, Thomas, 1 was born during the marriage in February 1995. primary physical custody visitation rights. of Plaintiff was awarded Thomas with Defendant having On 26 September 1995, Defendant signed a voluntary support agreement ( the Voluntary Support Agreement ) in which he acknowledged paternity and agreed to make payments to Plaintiff for the support of Thomas. Agreement was approved by the trial The Voluntary Support court and filed on 26 September 1995. On 15 April 2011, Defendant filed a motion to set aside his acknowledgement of paternity contained in the Voluntary Support Agreement pursuant to Rule 60 of the North Carolina Rules of Civil Procedure. The motion alleged that while Defendant had previously believed he was the natural father of Thomas, he had recently heard a rumor that another man was, in fact, Thomas biological father. court 1 to On this ground, Defendant asked the trial immediately terminate his child support obligation. Thomas is a pseudonym used to protect the identity of the child. -3Defendant attached the results of an at-home paternity test which purportedly excluded him as the father to his motion. On 21 November 2011, Defendant s Rule 60 motion was heard before the Honorable Chester C. Davis in Forsyth County District Court. On 10 January 2012, Judge Davis entered an order denying Defendant s Rule 60 motion on the basis that it was untimely in that it had been brought more than one year after the Voluntary Support Agreement was entered. On 5 June 2012, Defendant filed a second motion to set aside his prior acknowledgement of paternity. Defendant sought relief based not only on In this motion, Rule 60 but also pursuant to N.C. Gen. Stat. §§ 49-14(h), 110-132, and 50-13.3. Defendant attached a copy of the results of his at-home paternity test to this motion as well. Defendant s second motion was heard in Forsyth County District Court on 29 October 2012 before the Honorable Laurie Hutchins. aside the By order entered 28 January 2013, Judge Hutchins set acknowledgement of paternity contained in the Voluntary Support Agreement and ordered the parties to submit to genetic testing pursuant to N.C. Gen. Stat. §§ 49-14(h) and 850.1 as well as Rule 35 of the North Carolina Rules of Civil Procedure. Plaintiff appealed to this Court. -4Analysis Although Plaintiff did not raise the issue in her brief, whether an appeal is interlocutory presents a jurisdictional issue, and this Court has an obligation to address the issue sua sponte. 651 Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, S.E.2d 261, 263 (2007) (citation, quotation marks, and brackets omitted). A final judgment is one which disposes of the all cause as to the parties, leaving nothing to judicially determined between them in the trial court. (citation omitted). Conversely, an order or be Id. judgment is interlocutory if it does not settle all of the issues in the case but rather directs some further proceeding preliminary to the final decree. Heavner v. Heavner, 73 N.C. App. 331, 332, 326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985). from an Generally, there is no right of immediate appeal interlocutory order. Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., ___ N.C. App. ___, ___, 745 S.E.2d 69, 72 (2013). The prohibition against appeals from interlocutory orders prevents fragmentary, premature and unnecessary appeals by permitting judgment the before it trial court to is presented bring to the the case appellate to final courts. -5Russell v. State Farm Ins. Co., 136 N.C. App. 798, 800, 526 S.E.2d 494, 496 (2000) (citation and brackets omitted). An interlocutory order may be appealed, however, if the order implicates a substantial right of the appellant that would be lost if the order was not reviewed prior to the issuance of a final judgment. Guilford Cty. ex rel. Gardner v. Davis, 123 N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996). 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). It is the appellant s burden to show this Court that the order deprives the appellant of a substantial right which would be jeopardized review prior to a final determination on the merits. v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, absent a Jeffreys 380, 444 S.E.2d 252, 254 (1994). Here, the trial court s order is not a final judgment because it does not dispose of the entire controversy between the parties. While the trial court set aside Defendant s prior acknowledgement of paternity because it determined that Defendant had successfully rebutted the presumption that he was -6the natural father of Thomas, the trial court has not yet made a judicial determination of paternity. Rather, the trial court ordered the parties to submit to genetic testing, meaning that an ultimate determination as to paternity will not be made until some unspecified Defendant s future motion date. seeking Furthermore, relief from the his portion child of support obligation remains unresolved, presumably to be determined once the results of the genetic testing are submitted to the trial court. As such, in order for this Court to have jurisdiction over this interlocutory appeal, Plaintiff bears the burden of establishing that a substantial right of hers is implicated. See Ratchford v. C.C. Mangum Inc., 150 N.C. App. 197, 200, 564 S.E.2d 245, 248 (2002) ( The party desiring an immediate appeal of an interlocutory order bears the burden of showing that such appeal is necessary to prevent loss of a substantial right. (citation and quotation marks omitted)). This Court has previously held that an order requiring parties and their minor child to submit to blood grouping testing does not affect a substantial right and is, therefore, interlocutory and not appealable. Gardner, 123 N.C. App. at 529, 473 S.E.2d at 641; see Davie Cty. Dep t of Social Servs. v. Jones, 62 N.C. App. 142, 142, 301 S.E.2d 926, 927 (1983) -7(dismissing submit to defendant s blood appeal grouping and from order directing comparison test to him to determine paternity as interlocutory and not affecting substantial right). Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure mandates that where an appeal is interlocutory, the statement of the grounds for appellate jurisdiction contained within an appellant s brief must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right. 28(b)(4). It is not the duty of this N.C.R. App. P. Court to construct arguments for or find support for [an] appellant s right to appeal from an interlocutory order. Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254. Plaintiff s brief fails to acknowledge the interlocutory nature of this appeal and presents no argument whatsoever that the order affects a substantial right.2 Plaintiff has therefore failed to meet her burden of establishing that a substantial right would be lost or prejudiced unless an immediate appeal is allowed. Accordingly, we dismiss Plaintiff s appeal. Conclusion 2 Indeed, in clear violation of the Appellate Rules, Plaintiff s brief contains no statement of any kind regarding the grounds for appellate jurisdiction. See N.C.R. App. P. 28(b)(4). -8For the reasons set forth above, Plaintiff s interlocutory appeal is dismissed. DISMISSED. Judges STEELMAN and STEPHENS concur. Report per Rule 30(e).

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