Peters v. Peters , 232 N.C. App. 444 ( 2014 )

NO. COA13-816
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
JERMAINE S.1 PETERS,
Plaintiff/Husband/Father,
v. Gaston County
No. 12 CVD 4833
RASHEEDAH PETERS,
Defendant/Wife/Mother.
Appeal by Defendant from Order entered 8 April 2013 by Judge
Ralph C. Gingles in Gaston County District Court. Heard in the
Court of Appeals 11 December 2013.
Law Office of Yolanda M. Trotman, PLLC, by Yolanda M. Trotman,
for Plaintiff.
The Blain Law Firm, PC, by Sabrina Blain, for Defendant.
STEPHENS, Judge.
Factual and Procedural History
This case arises from the separation on 19 April 2011 of
Plaintiff Jermaine Peters and Defendant Rasheedah Peters. The
couple was married on 28 September 2002. They have one minor child
1 We note that Plaintiff’s middle initial is written as “D”
throughout the record on appeal and in the parties’ briefs. In
order to ensure consistency between trial and appellate opinions
and pursuant to the practice and custom of this Court, however, we
use the same middle initial contained in the trial court’s 8 April
2013 order — “S.”
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and reside in Gaston County. On 5 August 2012, acting pro se,
Plaintiff submitted his divorce complaint in Mecklenburg County.
Defendant submitted her answer two months later, on 8 October 2012,
counterclaiming for child custody, child support, retroactive
child support, equitable distribution, resumption of the use of
her maiden name, and attorneys’ fees. On 13 November 2012, venue
was changed from Mecklenburg County to Gaston County pursuant to
a consent order filed in Mecklenburg County District Court.2
Despite that change, Plaintiff filed a reply to Defendant’s answer
with the assistance of counsel on 11 December 2012 in Mecklenburg
County.3 Defendant thereafter replied to Plaintiff’s reply on 14
January 2013 in Gaston County.
The case was heard in Gaston County District Court during the
21 February 2013 civil session. During the hearing, Plaintiff made
2Though the consent order was not included in the record on appeal,
its existence is not disputed by the parties. Therefore, we take
judicial notice of the order for purposes of appellate review.
E.g., West v. G. D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d
221, 223 (1981) (“[G]enerally a judge or a court may take judicial
notice of a fact which is either so notoriously true as not to be
the subject of reasonable dispute or is capable of demonstration
by readily accessible sources of indisputable accuracy.”)
(citations omitted; emphasis in original).
3 There is nothing in the record to explain why Plaintiff filed
his reply in Mecklenburg County instead of Gaston County, and the
parties do not discuss it in their briefs.
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a motion to “dismiss/deny” Defendant’s claim for retroactive child
support on grounds that Defendant “failed to state a claim for
which relief can be granted[] and failed to submit an [a]ffidavit
of reasonable and necessary expenses as required by case law cited
in the North Carolina Trial Judge’s Bench Book.”4 Defendant argued
that “such an [a]ffidavit is not required and that the child’s
expenses could be established through testimony.” The district
court issued an order on 8 April 2013, nunc pro tunc, to 21 February
2013, which denied Defendant’s claim for retroactive child
support. Defendant appeals from that order.
Discussion
On appeal, Defendant contends that the trial court erred in
denying her claim because (1) her factual allegations regarding
retroactive child support were adequate and (2) she was not
required to file an affidavit to show the necessary and reasonable
expenses incurred by the parties’ child. Plaintiff responds by
arguing, inter alia, that Defendant’s appeal is interlocutory and
should be dismissed. We agree with Plaintiff and dismiss
Defendant’s appeal as interlocutory. Accordingly, we do not
address the parties’ other arguments.
4There is no transcript of the proceedings in the record on appeal.
This recitation of events comes from the trial court’s 8 April
2013 order.
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“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.” Veazey v. City of Durham, 231 N.C. 357,
362, 57 S.E.2d 377, 381 (1950) (citations omitted). In contrast,
a final judgment “disposes of the cause as to all the parties,
leaving nothing to be judicially determined between them in the
trial court.” Id. at 361–62, 57 S.E.2d at 381. “Generally there is
no right of immediate appeal from interlocutory orders and
judgments.” Goldson v. Am. Motors Corp., 326 N.C. 723, 725, 392
S.E.2d 735, 736 (1990). “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.” Harbin Yinhai Tech. Dev. Co.
v. Greentree Fin. Grp., Inc., 196 N.C. App. 615, 619–20, 677 S.E.2d
854, 857–58 (2009).
Despite this general rule,
[i]mmediate appeal of interlocutory orders and
judgments is available in at least two
instances. First, immediate review is
available when the trial court enters a final
judgment as to one or more, but fewer than
all, claims or parties and certifies there is
no just reason for delay [pursuant to Rule
54(b)]. . . . Second, immediate appeal is
available from an interlocutory order or
judgment which affects a substantial right.
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Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999)
(citations omitted). “When an appeal is interlocutory [and not
certified for appellate review pursuant to Rule 54(b)], the
appellant must include in [the] statement of grounds for appellate
review sufficient facts and argument to support appellate review
on the ground that the challenged order affects a substantial
right.” Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336,
338 (citing N.C.R. App. P. 28(b)(4)), affirmed per curiam, 360
N.C. 53, 619 S.E.2d 502 (2005). Otherwise, the appeal is subject
to dismissal. Rousselo v. Starling, 128 N.C. App. 439, 444, 495
S.E.2d 725, 729 (1998) (noting that failure on the part of the
appellant to establish that the trial court’s order affects a
substantial right “subjects an appeal to dismissal”).
In this case, Defendant provided the following statement
regarding the grounds for her appeal of the trial court’s order:
At the time this appeal was filed, other
claims remained outstanding between the
parties in the trial court, so this appeal
from [the o]rder is interlocutory. However,
the [o]rder affects [Defendant’s] substantial
right in that it deprives her [of r]etroactive
[s]upport and more particularly deprives her
of the use of funds expended in supporting the
child prior to the date of filing her claim
for [c]hild [s]upport and impedes her ability
to support the child in the future.
This statement is insufficient.
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It is not the duty of this Court to
construct arguments for or find support for
appellant’s right to appeal from an
interlocutory order; instead, the appellant
has the burden of showing this Court that the
order deprives the appellant of a substantial
right which would be jeopardized absent a
review prior to a final determination on the
merits.
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380,
444 S.E.2d 252, 254 (1994). In making such a showing, “[t]he
appellant[] must present more than a bare assertion that the order
affects a substantial right; [she] must demonstrate why the order
affects a substantial right.” Hoke Cnty. Bd. of Educ. v. State,
198 N.C. App. 274, 277–78, 679 S.E.2d 512, 516 (2009) (emphasis in
original). Rule 28 of the North Carolina Rules of Appellate
Procedure clarifies that, at a minimum, a party’s statement of
grounds for appellate review must “include citation of the statute
or statutes permitting appellate review. . . . When an appeal is
interlocutory, the statement must contain sufficient facts and
argument to support appellate review on the ground that the
challenged order affects a substantial right.” N.C.R. App. P.
28(b)(4).
Defendant’s statement of grounds for appellate review in this
case includes no citation to the statute permitting review. In
addition, Defendant fails to offer any legal reason that the trial
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court’s order affects a substantial right. Instead, she simply
asserts that it does. Where the appellant fails to carry her burden
in this circumstance, the appeal will be dismissed. Jeffreys, 115
N.C. App. at 380, 444 S.E.2d at 254 (“[The defendant] presented
neither argument nor citation to show this Court that [the
defendant] had the right to appeal the order dismissing its
counterclaims.”). Because Defendant presents no argument to show
that she has the right to immediate review of the trial court’s
order, we hold that she failed to carry her burden and dismiss her
appeal as interlocutory. See id; Plomaritis v. Plomaritis, 200
N.C. App. 426, 429, 684 S.E.2d 702, 704 (2009) (dismissing as
interlocutory the defendant-husband’s appeal of an order modifying
his monthly child support obligation because the defendant “offers
no argument that the . . . order has affected a substantial right,
and we decline to construct one for him”).
Nevertheless, we also conclude that Defendant’s appeal is
improper because it is based on an interlocutory order not
affecting a substantial right. “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)
(citation and internal quotation marks omitted).
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The test for whether a substantial right has
been affected consists of two parts: (1) the
right itself must be substantial; and (2) the
deprivation of that substantial right must
potentially work injury to the appealing party
if not corrected before appeal from final
judgment. Whether a substantial right is
affected is determined on a case-by-case basis
and should be strictly construed.
Builders Mut. Ins. Co. v. Meeting Street Builders, LLC, __ N.C.
App. __, __, 736 S.E.2d 197, 199 (2012) (citations, internal
quotation marks, and brackets omitted).
The right to immediate appeal [of an order
affecting a substantial right] is reserved for
those cases in which the normal course of
procedure is inadequate to protect the
substantial right affected by the order sought
to be appealed. Our courts have generally
taken a restrictive view of the substantial
right exception.
Turner, 137 N.C. App. at 142, 526 S.E.2d at 670. While this Court
has not determined whether an ordering denying retroactive child
support, standing alone, affects a substantial right, cf. Appert
v. Appert, 80 N.C. App. 27, 33, 341 S.E.2d 342, 345 (1986) (holding
that an order regarding prospective child support affects a
substantial right), we have addressed the substantial right
question in a number of similar, instructive scenarios.
In Stephenson v. Stephenson, we held that an order awarding
alimony pendente lite, child support pendente lite, and attorneys’
fees pendente lite constituted an interlocutory decree, which
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could not be immediately appealed. 55 N.C. App. 250, 251, 285
S.E.2d 281, 282 (1981). There we noted that, “[i]n the majority of
appeals from pendente lite awards[,] it is obvious that a final
hearing may be had in the district court and final judgment entered
much more quickly than this Court can review and dispose of the
pendente lite order.” Id. (italics added). Therefore, we reasoned,
[t]here is an inescapable inference drawn from
an overwhelming number of appeals involving
pendente lite awards that the appeal too often
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. (italics added). The following year we applied the reasoning
of Stephenson to an award of child support and a pendente lite
award of alimony, concluding that “child support orders entered in
conjunction with orders for alimony pendente lite” are not subject
to immediate appellate review even when the child support order is
not designated “pendente lite.” Fliehr v. Fliehr, 56 N.C. App.
465, 466, 289 S.E.2d 105, 106 (1982) (citing the delay rationale
articulated in Stephenson). Relying on Stephenson and other
similar cases, we stated in 2001 that “[i]nterlocutory appeals
[challenging] only the financial repercussions of a separation or
divorce generally have not been held to affect a substantial
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right.” Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259,
262 (2001) (collecting cases) (emphasis added).
In certain limited factual contexts, however, we have
nonetheless determined that an order pertaining to the financial
repercussions of a separation or divorce affects a substantial
right. In McGinnis v. McGinnis, for example, we held that an order
enforcing an out-of-state order, which granted the plaintiff’s
claim for $4,225.00 in arrearages for alimony and child support
and imposed a continuing support obligation, affected a
substantial right and was immediately appealable. 44 N.C. App.
381, 387, 261 S.E.2d 491, 495 (1980) (citations omitted). Six years
later, in Appert, we determined that an order affected a
substantial right when it directed that prospective child support
funds be placed in escrow if the parties’ minor children failed or
refused to abide by certain visitation privileges. 80 N.C. App. at
28, 33, 341 S.E.2d at 342, 345. There, in determining that the
order affected a substantial right, we focused on the trial court’s
statement that the support was “reasonably necessary for the
support and maintenance of the children.” Id. at 33, 341 S.E.2d at
345 (noting that “[i]t is usually necessary to resolve the question
in each case by considering the particular facts of that case and
the procedural context in which the order from which appeal is
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sought was entered”) (citation and internal quotation marks
omitted; emphasis added).
In both McGinnis and Appert, we elected to review the parties’
appeals as affecting a substantial right when the trial courts’
respective orders dealt, in part, with whether future child support
payments would be available. In those cases, one party’s right to
receive or access future payments, if actually owed, was in
jeopardy. Therefore, we correctly determined that the right was
substantial as implicating the child’s right to receive support.
In this case, however, Defendant is appealing the trial court’s
denial of her claim for past child support payments. While such
payments might be owed, the right to receive reimbursement cannot
be lost by our decision to refrain from granting immediate
appellate review. The funds have already been expended, and
Defendant’s right to reimbursement cannot be irremediably
adversely affected by waiting until the natural conclusion of the
proceedings below. The harm done to Defendant, if any, has already
occurred and cannot intensify. This is distinct from the harm that
could be done in the context of prospective child support payments.
There, immediate appellate review might function to reverse or
mitigate such harm if child support payments were improvidently
granted or denied. Therefore, we believe we are bound by the
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general rule articulated in Embler and applied in Stephenson and
Fliehr.
For the above reasons, Defendant’s appeal is dismissed as
based on an interlocutory order not affecting a substantial right.
DISMISSED.
Judges STEELMAN and DAVIS concur.