Ingle v. Ingle

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-453

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

RANDY AARON INGLE,

Plaintiff

Catawba County

v.

No. 12 CVD 2053

AMANDA B. INGLE,

Defendant

Appeal by plaintiff from order entered 16 January 2013 by

Judge Gregory R. Hayes in Catawba County District Court. Heard

in the Court of Appeals 24 October 2013.

Crowe & Davis, P.A., by H. Kent Crowe, for Plaintiff.

Sigmon, Isenhower & Barkley, by C. Randall Isenhower, for

Defendant.

ERVIN, Judge.

Plaintiff Randy Aaron Ingle appeals from an order setting

aside a judgment of absolute divorce and authorizing the

consideration of certain claims advanced by Defendant Amanda B.

Ingle. On appeal, Plaintiff contends that the trial court erred

by determining that Defendant had made an appearance in the case

sufficient to preclude the entry of a default judgment, that

Plaintiff had failed to adequately state a claim for absolute

divorce, and that an earlier judgment should be set aside and

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further proceedings conducted for the purpose of considering

various claims that Defendant wishes to assert. After careful

consideration of Plaintiff’s challenges to the trial court’s

order in light of the record and the applicable law, we conclude

that Plaintiff's appeal has been taken from an unappealable

interlocutory order and should be dismissed.

I. Factual Background

Plaintiff and Defendant were married on 16 June 1985 and

lived together as husband and wife until they separated on 30

April 2011. On 27 July 2012, Plaintiff filed a complaint

seeking an absolute divorce. A summons and Plaintiff’s

complaint were served on Defendant on 31 July 2012.

Shortly after service was effectuated upon Defendant, the

parties had a number of discussions for the purpose of

attempting to resolve all outstanding issues arising from the

dissolution of their marriage, including a division of their

property. During the 30 day period after the date upon which

Defendant was served with the summons and complaint, Plaintiff

sent a number of text messages to Defendant addressing the

possibility that the two of them could reach agreement with

respect to these issues. As a result of these communications,

Defendant did not file an answer or other responsive pleading

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prior to the expiration of the time for making such a filing

specified in N.C. Gen. Stat. § 1A-1, Rule 12(a)(1).

On 13 September 2012, the trial court heard Plaintiff’s

request for an absolute divorce. Defendant had not been

notified that the 13 September 2012 hearing would be held and

did not appear at that hearing. On the same date, the trial

court entered a judgment granting an absolute divorce.

On 7 December 2012, Defendant filed a motion seeking relief

from the divorce judgment pursuant to N.C. Gen. Stat. § 1A-1,

Rules 59 and 60, and authorization to file an attached draft

responsive pleading that asserted counterclaims for post-

separation support, alimony, equitable distribution, injunctive

relief, and attorney’s fees. On 4 January 2013, Defendant filed

an amended motion for relief from the divorce judgment in which

she added an allegation that Plaintiff’s complaint failed to

adequately state a claim upon which relief could be granted

predicated on the theory that Plaintiff had failed to allege

that the parties had lived continuously separate and apart from

each other for one year prior to the filing of the complaint.

On 4 January 2013, Defendant filed an affidavit setting out her

account of the events that led to the entry of the judgment and

attached certain text messages that she had received from

Plaintiff.

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Defendant’s motion for relief from the divorce judgment was

heard before the trial court on 8 January 2013. On 16 January

2013, the trial court entered an order concluding that

“Defendant’s failure to file a response was due to reasonable

mistake, inadvertence, surprise and excusable neglect”; that

“insufficient notice was given to the Defendant prior to the

entry of said divorce”; and that “jurisdictional requirements

were not met with regard to the allegations in the Complaint by

the Plaintiff” and ordering that the divorce judgment be “set

aside” and “have no force or effect,” allowing the filing of

Defendant’s proposed responsive pleading, and allowing Plaintiff

thirty days within which to file a response to Defendant’s

counterclaims. On 24 January 2013, Plaintiff filed a motion to

dismiss Defendant’s counterclaims for lack of subject matter

jurisdiction pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1)

and noted an appeal to this Court from the 16 January 2013

order.

II. Substantive Legal Analysis

“It is well established in this jurisdiction that if an

appealing party has no right of appeal, an appellate court on

its own motion should dismiss the appeal even though the

question of appealability has not been raised by the parties

themselves.” Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d

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431, 433 (1980) (citing Dickey v. Herbin, 250 N.C. 321, 325, 108

S.E.2d 632, 635 (1959), and Rogers v. Brantley, 244 N.C. 744,

745, 94 S.E.2d 896, 896 (1956)). As a result, even though

Defendant has not raised any challenge to our jurisdiction over

this case, the first question that we must address and resolve

is whether Plaintiff’s appeal is properly before this Court.

“Judicial judgments, orders and decrees are either

‘interlocutory or the final determination of the rights of the

parties.’” Bailey, 301 N.C. at 208, 270 S.E.2d at 433 (citing

N.C. Gen. Stat. § 1A-1, Rule 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,” while “[a]n 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, 361-62, 57 S.E.2d 377, 381 (1950)

(citations omitted). The order at issue here, in which the

trial court vacated the divorce judgment and authorized further

proceedings relating to the counterclaims that Defendant wished

to assert against Plaintiff, is clearly not an appealable final

order, since “‘further action by the trial court is necessary to

settle and determine the entire controversy between the

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parties.’” Banner v. Hatcher, 124 N.C. App. 439, 441, 477

S.E.2d 249, 250 (1996) (quoting First American Savings & Loan

Assoc. v. Satterfield, 87 N.C. App. 160, 162, 359 S.E.2d 812,

813 (1987)); see also Bradley v. Bradley, 206 N.C. App. 249,

253, 697 S.E.2d 422, 425 (2010) (stating that “our courts have

consistently held that appeals from orders allowing a Rule 60

motion are interlocutory”). Thus, the order that has been

presented for our review in this case is clearly interlocutory

in nature.

“Generally, there is no right of immediate appeal from

interlocutory orders and judgments.” Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Our

refusal to consider appeals taken from interlocutory orders is

intended “to prevent fragmentary and premature appeals that

unnecessarily delay the administration of justice and to ensure

that the trial divisions fully and finally dispose of the case

before an appeal can be heard.” Bailey, 301 N.C. at 209, 270

S.E.2d at 434 (citing Waters v. Qualified Personnel, Inc., 294

N.C. 200, 207, 240 S.E.2d 338, 343 (1978), and City of Raleigh

v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)).

However, “‘immediate appeal of interlocutory orders and

judgments is available in at least two instances’: when the

trial court certifies, pursuant to N.C. [Gen. Stat.] § 1A–1,

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Rule 54(b), that there is no just reason for delay of the

appeal; and when the interlocutory order affects a substantial

right under N.C. [Gen. Stat.] §§ 1–277(a) and 7A–27(d)(1).”

Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d

770, 773 (2009) (quoting Sharpe v. Worland, 351 N.C. 159, 161-

62, 522 S.E.2d 577, 579 (1999)). As a result of the fact that

the trial court did not certify the order from which Plaintiff

seeks to appeal for immediate review pursuant to N.C. Gen. Stat.

§ 1A-1, Rule 54(b), and could not have properly done so given

that the challenged order did not constitute a final judgment as

to either a claim or a party, we lack the authority to reach the

merits of Plaintiff’s challenge to the trial court’s order

unless the challenged order affects 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.” Blackwelder v. Dept. of Human

Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983).

“[T]he 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 order to make the

required showing, “[t]he appellant[] must present more than a

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bare assertion that the order affects a substantial right; [he]

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, disc. review denied, 363 N.C. 653, 686 S.E.2d

515 (2009). If the appellant fails to make the required

showing, his or her appeal is subject to dismissal. Allen v.

Stone, 161 N.C. App. 519, 521, 588 S.E.2d 495, 497 (2003).

A careful review of Plaintiff’s brief establishes that he

has failed to advance “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). To put it

simply, Plaintiff has failed to identify any substantial right

of which he would be deprived in the absence of immediate

appellate review. Aside from the fact that the “avoidance of a

rehearing or trial is not a ‘substantial right’ entitling a

party to an immediate appeal,” Blackwelder, 60 N.C. App. at 335,

299 S.E.2d at 780, “[i]t is not the duty of this Court to

construct arguments for or find support for appellant’s right to

appeal from an interlocutory order.” Jeffreys, 115 N.C. App. at

380, 444 S.E.2d at 254. As a result, given that Plaintiff has

failed to establish that we have jurisdiction over his challenge

to the trial court’s order, we conclude that Plaintiff’s appeal

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has been taken from an unappealable interlocutory order and

should be dismissed.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

Plaintiff’s appeal has been taken from an unappealable

interlocutory order and is not properly before us. As a result,

Plaintiff’s appeal should be, and hereby is, dismissed.

DISMISSED.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).