Broaddus v. Broaddus , 45 N.C. App. 666 ( 1980 )

263 S.E.2d 842 (1980)

Helen R. BROADDUS
v.
Clarke R. BROADDUS.

No. 793DC801.

Court of Appeals of North Carolina.

March 18, 1980.

Beaman, Kellum, Mills & Kafer, by James C. Mills and George M. Jennings, New Bern, and David T. Greer, Greenville, for plaintiff appellee.

Blount, Crisp & Savage, by Nelson B. Crisp, Greenville, and Emily P. Johnson, for defendant appellant.

HEDRICK, Judge.

Defendant assigns as error the denial of his motion to dismiss. He argues, among other things, that the court lacked jurisdiction to enter the temporary custody order on 1 December 1978 because he was not served and the court never acquired personal jurisdiction over him.

In our opinion, the defendant's appeal on this ground is subject to dismissal. The denial of a motion to dismiss is not a final determination. It is an interlocutory ruling and, ordinarily, no appeal lies therefrom. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957); Godley Auction Co., Inc. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979). The statute which defines the right of appeal, G.S. § 1-277, prescribes in relevant part:

(a) An appeal may be taken from every judicial order or determination . . . upon or involving a matter of law or legal inference, . . . which affects a substantial right . . . ; or which in effect determines the action, . . .

(b) Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant . . . .

[Emphasis added.]

Subsection (b) provides an exception to the rule of law expressed in subsection (a), but this case does not fall within the exception because the trial court neither had nor pretends that it had personal jurisdiction over the defendant, and obviously the children are not his property. Thus, this is not an appeal from an "adverse ruling" as to jurisdiction "over the person or property" of the defendant. Neither is it an appeal from a final judgment or, in our opinion, from a determination "which affects a substantial right." See Funderburk v. Justice, 25 N.C.App. 655, 214 S.E.2d 310 (1975), which ruled that the right is substantial only where the appellant would lose the case if the order is not reviewed before final judgment. Defendant does not nor could he successfully contend that such is the case here.

In ruling that defendant's appeal is premature and thus subject to dismissal, we emphasize that his attempted appeal is taken from an interlocutory ruling respecting a temporary custody order. We elect to consider the merits of this appeal, however, for the reason that defendant contends the trial court lacked subject matter jurisdiction to enter its temporary order placing custody of the children with the Department of Social Services and ordering it to place them with the plaintiff pending a hearing of the cause on its merits. See Kilby v. Dowdle, 4 N.C. App. 450, 166 S.E.2d 875 (1969). This contention plainly lacks merit. Prior to its amendment effective 1 July 1979, see N.C. Sess.Laws, c. 110, s. 12 (1979) [codified at G.S. § 50-13.5 (1979 Cum.Supp.)], G.S. § 50-13.5 in pertinent part provided as follows:

Procedure in actions for custody or support of minor children.

. . . . .

(c) Jurisdiction in Actions or Proceedings for Child Support and Child Custody.—

. . . . .

(2) The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child when:

a. The minor child resides, has his domicile, or is physically present in this State, or

b. When the court has personal jurisdiction of the person, . . . having actual care, control, and custody of the minor child.

. . . . .

(d) Service of Process; Notice; Interlocutory Orders.—

. . . . .

(2) If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided.

(e) . . .

(3) In the discretion of the court, failure of such service of notice shall not affect the validity of any order or judgment entered in such action or proceeding.

The record before us in this proceeding clearly supports Judge Wheeler's finding that the children were present in the State of North Carolina when this action was commenced and the temporary custody order entered on 1 December 1978. Moreover, the court obviously had personal jurisdiction over the plaintiff. Thus, the prerequisites for the court's gaining jurisdiction of the subject matter of the action under subsection (c) of the statute were met entirely. Subsection (d)(2) clearly gives the court having jurisdiction over the child the authority to enter orders for temporary custody pending service of process. See Zajicek v. Zajicek, 12 N.C.App. 563, 183 S.E.2d 850 (1971).

The statute serves further to bolster our ruling regarding the want of personal jurisdiction over defendant. Clearly, under subsection (e)(3), the fact that defendant was not served prior to the court's entering the temporary order will not thereby render such order null and void.

The court provided that its ruling was made pending a full hearing on the merits. The constitutional guarantees respecting notice and an opportunity to be heard would have to be accorded defendant before the issue of custody could be validly determined so as to be binding on him. The court's authority to enter the temporary custody order having been irrefutably shown, that order accordingly is

Affirmed.

VAUGHN and CLARK, JJ., concur.