Honeycutt v. Honeycutt

HUNTER, JR., Robert N., Judge,

concurring in part and dissenting in part.

While I agree with my colleagues in regard to the resolution of defendant’s motion to dismiss Anita Honeycutt’s (“plaintiff’) appeal for failure to properly settle the record on appeal, I dissent from that portion of the majority opinion regarding the resolution of defendant’s motion to dismiss the appeal as interlocutory. Because I do not believe we should exercise jurisdiction over the questions raised by plaintiff, I express no opinion on the underlying merits of her claims for relief or the validity of the judgment below.

Plaintiff filed a complaint based on two alternative theories of relief. In her first theory, plaintiff seeks rescission of the separation agreement previously entered by the parties on grounds of unconscionability, and subsequent to rescission, an unequal distribution of the marital assets. Plaintiff also sought an absolute divorce, child support, and attorneys’ fees. In the alternative, plaintiff pled a second theory of relief, in which she seeks specific performance of the separation agreement, providing her with an 80% distribution of any previously undisclosed assets, and attorneys’ fees. The trial court’s partial summary judgment order granted defendant’s motion to deny plaintiff’s claim for rescission of the separation agreement and for an equitable distribution. This ended any claim for relief on plaintiff’s *85 first theory of relief until appeal. The trial court’s order, however, denied defendant’s other motions for summary judgment and left for trial plaintiff’s claims for child support and attorneys’ fees, and her alternative claim for specific performance of the separation agreement with regard to the identification of undisclosed assets. The trial court’s partial summary judgment order also left available for future resolution a substantial claim regarding the distribution of marital property under the separation agreement, to wit, whether defendant had disclosed all of his assets at the time the separation agreement was agreed upon, and if not, how any such assets are to be distributed.

As a jurisdictional foundation for her appeal, plaintiff admits that this appeal is interlocutory. She nevertheless claims that the trial court’s order granting partial summary judgment affects a substantial right: the right to avoid two trials and the possibility of being prejudiced by inconsistent verdicts. Specifically, plaintiff argues

the dismissed claims and the remaining claims[] all deal in whole or in part with the identification, valuation and distribution of certain marital assets and liabilities. These assets could be identified, valued and distributed as part of the claim for specific performance. If [plaintiff] is successful on her appeal, aijd then successful on her claim to set aside the [separation] [agreement, these same assets will be subject to redistribution by another judge and jury at a later date.

I disagree.

In domestic relations cases, when the trial court has upheld the validity of a separation agreement in a partial summary judgment order, this Court has reached differing conclusions as to whether a substantial right is affected. Bromhal v. Stott, 101 N.C. App. 428 , 399 S.E.2d 340 (1991) (no substantial right where damages issue remained at trial); Case v. Case, 73 N.C. App. 76 , 325 S.E.2d 661 (1985) (substantial right recognized even though claims for absolute divorce, child support, and child custody remained at trial); Buffington v. Buffington, 69 N.C. App. 483 , 317 S.E.2d 97 (1984) (substantial right recognized where issue of specific performance of the separation agreement or damages for breach remained at trial). These differing results are a consequence of the case-by-case assessment required for each interlocutory jurisdictional decision. Examining the law governing interlocutory appeals and the substantial right doctrine reveals that this sui generis procedure has resulted *86 in no clear holding from either this Court or the North Carolina Supreme Court on this specific question.

I disagree with the majority’s reading of the facts of this case and the facts of Case v. Case and Buffington v. Buffington, which the majority cite as authority for this Court to assert jurisdiction. In Case and Buffington, the trial court’s summary judgment order determined the final outcome of the distribution of all marital property; in neither case was further action by the trial court necessary with regard to the allocation of the parties’ marital property. Case, 73 N.C. App. at 78 , 325 S.E.2d at 663 ; Buffington, 69 N.C. App. at 485 , 317 S.E.2d at 98 . In this case, however, there are issues that remain to be determined regarding the application of the separation agreement, specifically plaintiff’s claim that property exists that was undisclosed by defendant and requires distribution by the terms of the separation agreement. Because this claim remains outstanding, the partial summary judgment order is not final in any meaningful way because it does not decide all property issues between the parties.

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.” Cagle v. Teachy, 111 N.C. App. 244, 247 , 431 S.E.2d 801, 803 (1993). “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).

An interlocutory order may be immediately appealed in only two circumstances: (1) when the trial court, pursuant to N.C.R. Civ. P 54(b), enters a final judgment as to one or more but fewer than all of the claims or parties and certifies that there is no just reason to delay the appeal; or (2) when the order deprives the appellant of a substantial right that would be lost absent appellate review prior to a final determination on the merits.

High Rock Lake Partners, LLC v. N.C. Dep’t of Transp., - N.C. App. -, -, 693 S.E.2d 361, 366 (2010), disc. review denied, - N.C. -, — S.E.2d - (No. 262P10) (filed 26 August 2010). “ ‘A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.’ ” Musick v. Musick, - N.C. App. -, -, 691 S.E.2d 61, 63 (2010) (quoting Embler v. Embler, 143 N.C. App. 162, 165 , 545 S.E.2d 259, 262 (2001)). No Rule 54(b) certification has been entered in this *87 case, and therefore, the “substantial right” exception is the only possible jurisdictional basis for review.

In this case, the trial court concluded that the separation agreement would control the distribution of the parties’ marital property. The only potential remaining claim in which the trial court’s decision could stand as a conflicting result is plaintiff’s claim for specific performance of the separation agreement. Were we to dismiss this appeal as interlocutory, the suit would return to the trial court, and the parties could argue the merits of the specific performance claim. 3 If during the course of the litigation defendant was ordered to present a more complete list of assets per the terms of the separation agreement, and that list contained items not previously disclosed, then plaintiff may be entitled to a somewhat greater distribution of those assets under a sanctions clause in the agreement. In light of such a showing by plaintiff, the trial court could enter an order making findings and conclusions regarding the distribution of these undisclosed assets under the specific performance claim, and also come to a conclusion on the issues of the child support and attorneys’ fees.

The majority’s decision appears to be based upon the following logic: the trial court’s order affects a substantial right because, if this Court does not address the present appeal, the parties await a final determination of all claims (i.e., the remaining claim for specific performance of the separation agreement), and if this Court were to subsequently reverse the trial court on the issue of rescission of the separation agreement, plaintiff would face the possibility of conflicting verdicts on the same facts. Based upon the majority’s reasoning on the merits of the case, I think the premise that another panel of this Court would reach a conclusion different from that of the majority is unlikely. I also believe the majority’s reasoning would apply to every appeal of an interlocutory order — effectively eliminating any meaningful distinction between those orders that affect a substantial right and those that do not. Examples of the difficulty in applying this rule to domestic relations cases abound and have been cited by appellees. See Webb v. Webb, 196 N.C. App. 770 , 677 S.E.2d 462 (2009); McIntyre v. McIntyre, 175 N.C. App. 558 , 623 S.E.2d 828 (2006); Evans v. Evans, 158 N.C. App. 533 , 581 S.E.2d 464 (2003); Embler, 143 N.C. App. 162 , 545 S.E.2d 259 ; Stafford v. Stafford, 133 N.C. App. 163 , 515 S.E.2d 43 , aff’d per curiam, 351 N.C. 94 , 520 S.E.2d 785 (1999); Rowe *88 v. Rowe, 131 N.C. App. 409 , 507 S.E.2d 317 (1998); Hunter v. Hunter, 126 N.C. App. 705 , 486 S.E.2d 244 (1997).

Moreover, the majority’s decision will not obviate the need for the trial court to examine the claims for fraud, misrepresentation, or constructive fraud because of the “disputed” material facts regarding undisclosed assets. If the concealment is material, then the court below and this panel may have reached an unjust result on the claim for rescission. Even if the decision below is clear, little judicial economy will have been achieved by taking jurisdiction of this claim because the trial court and this Court will have to visit these facts and transactions twice.

Our law governing interlocutory appeals seeks to discourage piecemeal litigation. Waters v. Qualified Personnel, Inc., 294 N.C. 200, 207 , 240 S.E.2d 338, 343 (1978) (stating interlocutory appeals are disfavored in order to “prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division”). Because plaintiff can raise the issues in this appeal after a final disposition of this case, and little possibility of inconsistent verdicts exists, no substantial right has been affected by the trial court’s order granting partial summary judgment. Accordingly, review of the order by this Court is not proper. I would dismiss the appeal as interlocutory.

. The central focus of these claims is what, if any, undisclosed assets the parties had at the time the separation agreement was signed.