Sarno v. Sarno , 235 N.C. App. 597 ( 2014 )

NO. COA13-1472
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
MICHELLE D. SARNO,
Plaintiff,
v. Mecklenburg County
No. 09-CVD-5222
VINCENT J. SARNO,
Defendant.
Appeal by Plaintiff and Defendant from Order entered 24
April 2013 by Judge Ronald L. Chapman in District Court,
Mecklenburg County. Heard in the Court of Appeals 4 June 2014.
The Law Office of Richard B. Johnson, P.A., by Richard B.
Johnson, for plaintiff-appellant, cross-appellee.
Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant-
appellee, cross-appellant.
STROUD, Judge.
Plaintiff and defendant each appeal from an order for
permanent child support and attorney fees. Because the order
from which the parties have appealed is interlocutory and they
have failed to argue that they are entitled to an interlocutory
appeal based upon impairment of a substantial right, we dismiss
both parties’ appeals.
I. Background
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Plaintiff and defendant were married in 2000 and one child
was born to their marriage, in 2003. They separated in 2006 and
later divorced. In 2009, plaintiff filed a complaint including
claims for child custody and support, and defendant filed an
answer and counterclaims also seeking custody, child support,
and attorney’s fees. Trial on the issues of child support and
custody began on 6 June 2011 and 7 June 2011. On 23 March 2012,
the trial court entered an order of permanent child custody,
which specifically reserved the issue of child support for later
determination. In the custody order, the trial court concluded
that “[t]here was insufficient time to hear evidence and rule on
claims for child support and attorney fees and the court retains
jurisdiction to rule on this issue.” On 24 July 2012, plaintiff
filed a motion to modify custody based on several alleged
changes of circumstances, including claims that the custody
order was based upon the fact that plaintiff had planned to move
to Vermont at the time of the June 2011 hearing, but she had
since decided to remain in North Carolina.
The trial court resumed trial on the issue of permanent
child support on 14 September 2012. On 24 April 2013, the trial
court entered an order for permanent child support and attorney
fees. In this order, the trial court found that plaintiff’s
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motion to modify custody, filed on 24 July 2012, was still
pending. The trial court found that at the 2011 trial,
plaintiff had maintained “with certainty” that she would
relocate to Vermont on 15 July 2011 and sought primary custody
of the minor child. The permanent custody order had awarded
primary custody of the child to defendant and had set a
visitation schedule based upon the fact that plaintiff would be
residing in Vermont and the defendant and child in North
Carolina, with “extended time in the summers and school
holidays” but “not enough overnights” to require that
plaintiff’s child support be established under Schedule B of the
Child Support Guidelines.
The trial court also found that despite the visitation
schedule established in the custody order, since plaintiff had
remained in North Carolina, she had actually exercised
additional weekend visitation during the school year, beyond
that dictated by the custody order. The trial court found that
“plaintiff’s testimony of her overnights did not convince the
court of an exact amount of parenting time” and that defendant’s
theory for calculating the parties’ overnights was “confusing.”
The trial court found that plaintiff had 135 overnight visits
per year, sufficient for child support to be set on Worksheet B,
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but based upon the uncertainty of the exact amount of visitation
as well as additional findings of fact regarding the parties’
financial situations and sharing of expenses, established child
support accordingly, based upon Schedule A. The trial court
also found that “while there is a motion to modify custody
outstanding, child support needs to be established based on the
current order and practice of the parties.”
The trial court also made findings, when addressing the
issue of attorney’s fees, as to the delay in the progress of the
case. The court found that “procedurally, this case has been
slowed by the heavy case load of the court system, trial
strategy decisions by the Plaintiff’s counsel, the health issues
of the prior trial counsel, as well as personal decisions by
Plaintiff.” One of these decisions was that “after receiving an
undesirable result in the custody [matter], Plaintiff changed
course, and opted to stay in North Carolina, presumably
believing that this would negate the effects of the Court’s
ruling.” According to the record before us, plaintiff’s motion
for modification of custody remains outstanding.
II. Interlocutory Order
Although neither party has raised the issue, it is apparent
from the provisions of the child support order on appeal that we
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must first consider whether this order is a final, appealable
order.
Generally, there is no right of immediate
appeal from interlocutory orders and
judgments. An interlocutory order is one
made during 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. On the other hand, 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.
Hausle v. Hausle, ___ N.C. App. ___, ___, 739 S.E.2d 203, 205-06
(2013) (citations and quotation marks omitted). “The reason for
this rule is to prevent fragmentary, premature, and unnecessary
appeals by permitting the trial court to bring the case to final
judgment before it is presented to the appellate courts.” Peters
v. Peters, ___ N.C. App. ___, ___, 754 S.E.2d 437, 439 (2014)
(citation, quotation marks, and brackets omitted). “In the child
support context, an order setting child support is not a final
order for purposes of appeal until no further action is
necessary before the trial court upon the motion or pleading
then being considered.” Banner v. Hatcher, 124 N.C. App. 439,
441, 477 S.E.2d 249, 250 (1996).
We have said in the child custody context that
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[a] trial court’s label of a custody order
as “temporary” is not dispositive. A custody
order is, in fact, temporary if either (1)
it is entered without prejudice to either
party, (2) it states a clear and specific
reconvening time in the order and the time
interval between the two hearings was
reasonably brief; or (3) the order does not
determine all the issues.
Sood v. Sood, ___ N.C. App. ___, ___, 732 S.E.2d 603, 606 (2012)
(citations and quotation marks omitted), cert. and disc. rev.
denied, and app. dismissed, 366 N.C. 417, 735 S.E.2d 336 (2012).
These rules logically apply to the child support context as
well. Indeed, support and custody are normally addressed in the
same order if the two claims are heard at the same trial, as
they were here. The unusual procedural feature here was the
bifurcation of the issues by issuing two separate orders based
upon the one trial, with plaintiff’s motion to modify custody
being filed in between the first and second sessions of the
trial. This unusual procedural posture was created by a
combination of the plaintiff’s actions and circumstances beyond
the control of the parties or the trial court, but still it
resulted in an order which fails to provide a complete
resolution of all issues.
Although the child support order was labeled as a
“permanent” order and did not set a specific hearing date for a
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hearing upon plaintiff’s pending motion, the provisions of the
order address in detail some of the changes in circumstances
since the custody order, such as plaintiff’s decision to remain
in North Carolina, which may necessitate additional change in
the child support obligation as well. In fact, one of the
primary issues was how much custodial time is being exercised by
plaintiff, including consideration of the actual visitation, as
practiced by the parties, compared to the visitation dictated by
the existing custody order, and the establishment of child
support depends heavily upon this determination. This order did
not resolve all pending issues, due to plaintiff’s outstanding
motion to modify custody, which the trial court acknowledged by
various findings in the child support order addressing
plaintiff’s outstanding motion, clearly anticipating that the
child support issue would need to be revisited after plaintiff’s
motion to modify is heard. Addressing the parties’ contentions
at this time would result in “fragmentary, premature, and
unnecessary appeals[.]” Peters, ___ N.C. App. at ___, 754 S.E.2d
at 439.
For an interlocutory order to be immediately appealable,
either the trial court must certify the case for immediate
appeal or the appellant must demonstrate that a substantial
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right will be impaired by delay in the appeal. Id. The parties
have not acknowledged that the order is interlocutory and have
not made any argument as to any substantial interest which would
be impaired by delay. See id. at ___, 754 S.E.2d at 441 (noting
that orders affecting only “the financial repercussion of a
separation or divorce” generally do not affect a substantial
right). Therefore, both parties’ appeals must be dismissed.1
III. Conclusion
For the foregoing reasons, we must dismiss plaintiff’s
appeal as interlocutory.
DISMISSED.
Judges STEPHENS and MCCULLOUGH concur.
1
We note that the Legislature recently enacted Session Law 2013-
411, codified at N.C. Gen. Stat. § 50-19.1 (2013), which governs
appeals of certain interlocutory family law orders. However,
this statute only became effective 23 August 2013, after the
order on appeal was entered. 2013 N.C. Sess. Laws ch. 411, § 2.
Therefore, it does not apply here and we express no opinion on
how it would affect our analysis.