allowing an interlocutory appeal from a child custody - 11 - BEASLEY V. BEASLEY Opinion of the Court order based on a “substantial right” where a child was deemed to be subject to an immediate threat of sexual molestation
How later courts described this case
- allowing an interlocutory appeal from a child custody - 11 - BEASLEY V. BEASLEY Opinion of the Court order based on a “substantial right” where a child was deemed to be subject to an immediate threat of sexual molestation
- allowing an interlocutory appeal from a child custody order based on a "substantial right" where a child was deemed to be subject to an immediate threat of sexual molestation
- “Though [the] plaintiff relies on Brewer v. Brewer, 139 N.C.App. 222 , 533 S.E.2d 541 (2000) and Browning v. Helff, 136 N.C.App. 420 , 524 S.E.2d 95 (2000), for the proposition that the court must make specific findings as to any effect a change in circumstance has on the welfare of the child, we do not read Brewer or Browning to require that the court use specific language in its order. Rather, the order must demonstrate that the court has considered the effect on the child’s welfare, which was clearly done here.”
- “Though [the] plaintiff relies on Brewer v. Brewer, 139 N.C.App. 222, 533 S.E.2d 541 (2000) and Browning v. Helff, 136 N.C.App. 420, 524 S.E.2d 95 (2000
Written by the judges who cited it.
The opinion
GREENE, Judge,
dissenting.
Because I believe plaintiff’s appeal is interlocutory and therefore must be dismissed, I dissent.
A party may not immediately appeal an interlocutory order unless: (1) the trial court has entered a final order as to one or more but fewer than all of the claims or parties and has certified that there is no just reason to delay an appeal or (2) the “ ‘order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.’ ” See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379 , 444 S.E.2d 252, 253 (1994) (citation omitted). In either situation, the burden is on the appellant to present an argument in her brief to this Court to support the acceptance of the appeal. Id.
In this case, the appeal is interlocutory as no final judgment exists on plaintiff’s claims for alimony or equitable distribution. See Embler v. Embler, 143 N.C. App. 162, 165 , 545 S.E.2d 259, 262 (2001) (an equitable distribution order explicitly leaving open the issue of alimony is interlocutory). While the trial court’s judgment constitutes a final adjudication of the custody issue, the trial court did not certify the order pursuant to Rule 54(b). Furthermore, plaintiff presents no *631 argument in her brief to this Court that the judgment affects a substantial right. 3 Accordingly, I would dismiss plaintiffs appeal as interlocutory. See Embler, 143 N.C. App. at 167 , 545 S.E.2d at 263 .
. The majority has constructed an argument for plaintiff that the appeal affects a substantial right which would be jeopardized absent immediate appellate review. I disagree with that construct. There is no indication in the record to this Court that the child’s well-being is in any danger while she is in defendant’s custody. Indeed, the trial court specifically concluded there was no evidence “the child is under any threat of [sexual] molestation in [defendant’s] home.” Even so, this Court has specifically stated that a temporary custody order is interlocutory and “does not affect any substantial right... which cannot be protected by timely appeal from the trial court’s ultimate disposition of the entire controversy on the merits.” Dunlap v. Dunlap, 81 N.C. App. 675, 676 , 344 S.E.2d 806, 807 , disc. review denied, 318 N.C. 505 , 349 S.E.2d 859 (1986). I see no reason to distinguish the interlocutory nature of temporary custody orders from the interlocutory nature of final custody determinations. While I acknowledge the importance of prompt appellate review of child custody orders, I also see the importance of prompt appellate review of temporary custody, alimony, and equitable distribution cases. Thus, absent some special facts, which do not exist in this case on this record, there can be no basis for differentiating between these domestic claims in the context of whether they affect a substantial right.
In the context of current law which labels an appeal as interlocutory if there are other claims asserted in the complaint that have not been resolved, a party seeking to assert multiple claims, i.e. equitable distribution and alimony, might better be served by not joining them into the same complaint. If this is done, resolution of a single claim would constitute a final order and be ripe for immediate appeal. If multiple claims are joined into one complaint and only one claim is fully and finally resolved, the trial court could be petitioned to issue a Rule 54(b) certification thus clearing the claim for immediate appellate review. Certification should be issued unless there is some “just reason” to delay the appeal. N.C.G.S. § 1A-1, Rule 54(b) (2001).