Harrison-Floyd v. Floyd

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-700

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

HAYLEY L. HARRISON-FLOYD,

Plaintiff

v. Pitt County

No. 09 CVD 3555

JEFFREY W. FLOYD,

Defendant.

Appeal by defendant from judgment entered 10 January 2013

by Judge Darrell B. Cayton, Jr. in Pitt County District Court.

Heard in the Court of Appeals 6 November 2013.

Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.

Smith, III, and R. Gray Jernigan, for plaintiff-appellee.

W. Gregory Duke for defendant-appellant.

DAVIS, Judge.

Jeffrey W. Floyd (“Defendant”) appeals from the trial

court’s equitable distribution judgment. On appeal, he argues

that the trial court erred in (1) distributing the second

mortgage on the parties’ marital residence to him; and (2)

making an equal division of the net marital estate. After

careful review, we conclude that Defendant’s interlocutory

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appeal does not implicate a substantial right and should be

dismissed.

Factual Background

Hayley L. Harrison-Floyd (“Plaintiff”) and Defendant were

married on 29 November 1993, separated on 15 January 2010, and

divorced on 4 August 2011. Two minor children were born of the

marriage. On 12 October 2009, Plaintiff filed a complaint

against Defendant seeking divorce from bed and board, child

custody and support, and equitable distribution. Defendant

filed an answer and counterclaim on 20 October 2009 seeking

divorce from bed and board, child custody, child support,

equitable distribution and interim equitable distribution, post-

separation support and alimony, and attorney’s fees.

On 20 February 2010, the trial court entered an order (1)

granting the parties temporary joint legal and physical custody

of the minor children; (2) granting Defendant’s claim for

divorce from bed and board; (3) ordering Plaintiff to pay child

support and post-separation support to Defendant; (4) ordering

Plaintiff to vacate the former marital residence; and (5)

requiring Defendant to pay at least $200 per month towards the

equity line of credit encumbering the former marital residence.

On 29 February 2012, the trial court entered an amended

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pretrial order by consent of the parties regarding their claims

for equitable distribution. The pretrial order set forth

several stipulations as to the classification and valuation of

certain property and listed other property as to which the

parties disputed either the value, the classification, or both.

An equitable distribution hearing was held on 20 September

2012, and the trial court entered a judgment of equitable

distribution on 10 January 2013. In its judgment, the trial

court determined that the former marital residence was

Plaintiff’s separate property and, for this reason, was not

subject to equitable distribution. The trial court also

concluded that an equal division of the net marital estate was

equitable. Defendant filed a notice of appeal on 4 February

2013.

Analysis

As an initial matter, we must determine whether we have

jurisdiction over Defendant’s interlocutory appeal. “A judgment

is either interlocutory or the final determination of the rights

of the parties.” N.C.R. Civ. P. 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. An interlocutory

order is one made during the pendency of an

action, which does not dispose of the case,

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but leaves it for further action by the

trial court in order to settle and determine

the entire controversy.

Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d

261, 263 (2007) (citation omitted). The 10 January 2013

equitable distribution judgment leaves open for future

resolution the parties’ claims for permanent child custody and

permanent child support and, therefore, does not dispose of the

entire case. As such, it is interlocutory.

“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). Review of

an interlocutory judgment is permissible, however, when the

judgment (1) affects a substantial right which would be lost

absent immediate review, N.C. Gen. Stat. § 1-277(a); or (2) is

final as to some but not all of the claims or parties and the

trial court has certified the case for immediate appellate

review pursuant to Rule 54(b) of the North Carolina Rules of

Civil Procedure. N.C. Dep’t of Transp. v. Page, 119 N.C. App.

730, 734, 460 S.E.2d 332, 334 (1995).

Here, the trial court did not make a Rule 54(b)

certification as to the equitable distribution judgment from

which Defendant seeks to appeal. Thus, the dispositive question

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for jurisdictional purposes is whether the trial court’s

judgment affects a substantial right such that Defendant’s

appeal is properly before this Court. Turner v. Norfolk S.

Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).1

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).

The party seeking to appeal from an interlocutory order has the

burden of establishing that a substantial right would be

jeopardized unless he is permitted to immediately appeal.

Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262

(2001).

Here, Defendant acknowledges the interlocutory nature of

the trial court’s equitable distribution judgment but claims

1

We note that the General Assembly has recently amended Article

1 of Chapter 50 to create a statutory right of immediate appeal

“from an order or judgment adjudicating a claim for absolute

divorce, divorce from bed and board, child custody, child

support, alimony, or equitable distribution if the order or

judgment would otherwise be a final order or judgment within the

meaning of G.S. 1A-1, Rule 54(b), but for the other pending

claims in the same action.” 2013 N.C. Sess. Law 411, § 2. This

act became effective when it was signed into law by the Governor

on 23 August 2013 and, as such, does not apply to Defendant’s

appeal, which was noticed on 4 February 2013.

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that the 10 January 2013 judgment affects a substantial right

based on our decision in Soares v. Soares, 86 N.C. App. 369, 357

S.E.2d 418 (1987). We disagree.

In Soares, the defendant sought to appeal from an order

denying her claim for alimony and ordering the sale of the

marital home in order to effectuate the equitable distribution

of the parties’ marital property. The order specifically held

open the matter for determination of the parties’ claims for

equitable distribution and child support and, thus, was “not a

final judgment by its own terms.” Id. at 370, 357 S.E.2d at

418. This Court concluded, however, that because the trial

court’s order required the sale of the marital residence, it

affected a substantial right and entitled the defendant to an

immediate appeal. Id.

Here, conversely, the trial court did not direct the sale

of the marital home; rather, it simply determined that the

residence was Plaintiff’s separate property and that only the

value of the improvements made during the parties’ marriage

constituted marital property subject to distribution. Defendant

does not dispute the classification of the residence in his

brief. Instead, he argues that the trial court abused its

discretion because its “decision to distribute the equity line

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of the mortgage debt to the non-title holder of the real

property creates an untenable situation for both the Plaintiff

and the Defendant” in that Defendant is required to pay a debt

on a home he neither owns nor possesses and Plaintiff’s ability

to own and possess the home is dependent on Defendant’s ability

to pay the debt.

Defendant has failed to demonstrate how the present case is

analogous to our decision in Soares. Nor has he offered any

other argument as to why the trial court’s distributional scheme

would “work injury . . . if not corrected before appeal from

final judgment.” Goldston, 326 N.C. at 726, 392 S.E.2d at 736;

see Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679

S.E.2d 512, 516 (“The appellants must present more than a bare

assertion that the order affects a substantial right; they must

demonstrate why the order affects a substantial right.”) (emphasis

in original)), disc. review denied, 363 N.C. 653, 686 S.E.2d 515

(2009); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,

379, 444 S.E.2d 252, 253 (1994) (“[I]t is the appellant’s burden to

present appropriate grounds for this Court’s acceptance of an

interlocutory appeal . . . .”).

“Our courts have generally taken a restrictive view of the

substantial right exception. . . . [and] [i]nterlocutory appeals

that challenge only the financial repercussions of a separation

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or divorce generally have not been held to affect a substantial

right.” Embler, 143 N.C. App. at 166, 545 S.E.2d at 262

(determining that equitable distribution order was interlocutory

and not immediately appealable because custody, child support,

and alimony issues had not yet been resolved and appellant

failed to show substantial right was affected). We conclude

that Defendant has failed to establish that a substantial right

will be affected unless he is allowed to immediately appeal from

the trial court’s 10 January 2013 judgment. Accordingly, we

dismiss Defendant’s appeal.

Conclusion

For the reasons stated above, Defendant’s interlocutory

appeal is dismissed.

DISMISSED.

Judges ELMORE and McCULLOUGH concur.

Report per Rule 30(e).