Campbell v. Campbell

Opinion

NO. COA14-329

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

SUZANNE DAVIS CAMPBELL, Plaintiff,

v. Forsyth County No. 13 CVD 3111 WILLIAM TAYLOR CAMPBELL, III, Defendant.

Appeal by plaintiff from order entered 21 October 2013 by

Judge William B. Reingold in Forsyth County District Court.

Heard in the Court of Appeals 11 September 2014.

Allman Spry Davis Leggett & Crumpler, P.A., by Joslin Davis, Loretta C. Biggs and Anna E. Warburton, for plaintiff-appellant.

Wilson, Helms & Cartledge, LLP, by Gray Wilson and Lorin J. Lapidus, and Morrow, Porter, Vermitsky & Fowler, PLLC, by John F. Morrow, Sr. and John C. Vermitsky, for defendant- appellee.

DIETZ, Judge.

Plaintiff Suzanne Davis brings this interlocutory appeal

from the trial court’s order vacating her judgment of absolute

divorce under Rule 60(b) of the Rules of Civil Procedure. The

trial court, exercising its discretion under Rule 60(b), set

aside Ms. Davis’ divorce judgment so that her ex-husband William -2- Campbell could assert a belated claim for equitable

distribution.

This Court has held that an appeal from a trial court order

setting aside an absolute divorce judgment “is interlocutory and

subject to dismissal.” See Baker v. Baker, 115 N.C. App. 337,

339, 444 S.E.2d 478, 480 (1994). Applying this precedent, our

Court recently granted a motion to dismiss for lack of appellate

jurisdiction in an appeal with facts nearly identical to those

presented here. See Steele v. Steele, No. COA 14-231 (N.C. App.

2014). Mr. Campbell did not file a motion to dismiss this

appeal, but we are obliged to review our own jurisdiction in

every case. We hold that, although there may be factual

circumstances in which the grant of a Rule 60(b) motion setting

aside a divorce judgment affects a substantial right, Ms. Davis

did not make a sufficient showing in this case. Accordingly, we

dismiss this appeal for lack of jurisdiction.

Factual Background

After a decade of marriage, Plaintiff Suzanne Davis and

Defendant William Campbell separated on 11 May 2012. On 16

November 2012, Ms. Davis filed a complaint for equitable

distribution, among other claims. Mr. Campbell filed an answer

and counterclaim in that action, but mistakenly failed to assert -3- his own claim for equitable distribution. Both parties engaged

in several months of vigorous discovery and motions practice on

the issue of equitable distribution.

On 13 May 2013, Ms. Davis filed a separate complaint for

absolute divorce and to resume use of her maiden name. On 1

July 2013, the trial court granted Ms. Davis’ unopposed motion

for summary judgment on that absolute divorce claim.

At some point during this process, Ms. Davis determined

that it was no longer in her interests to pursue equitable

distribution, although neither party’s brief explains precisely

why this was so. Just over a month after obtaining her absolute

divorce judgment, Ms. Davis voluntarily dismissed her equitable

distribution claim. Under North Carolina law, the entry of an

absolute divorce judgment bars any new claims for equitable

distribution. See N.C. Gen. Stat. § 50-11(e) (2013). As a

result, although Mr. Campbell still desired to complete the

equitable distribution process, Ms. Davis’ voluntary dismissal

of her own claim (the only pending equitable distribution claim)

permanently ended all equitable distribution litigation.

Mr. Campbell promptly filed a motion to set aside the

divorce judgment under Rule 60(b) of the Rules of Civil

Procedure. He contended that his failure to timely assert his -4- own claim for equitable distribution before entry of the

absolute divorce judgment was the result of excusable neglect.

Specifically, he asserted that, at the time he filed his initial

counterclaim in the equitable distribution action, his counsel

had recently given birth to a premature baby who weighed less

than two pounds. The child was hospitalized with life-

threatening conditions through much of this litigation. Mr.

Campbell argued that he instructed his counsel to file a claim

for equitable distribution and that his counsel, distracted by

her newborn’s medical needs, mistakenly thought she had done so.

On 21 October 2013, the trial court granted Mr. Campbell’s

Rule 60(b) motion in an order containing detailed findings of

fact and conclusions of law. The court set aside the absolute

divorce judgment and ordered Mr. Campbell to file an answer and

counterclaim for equitable distribution within 30 days. Ms.

Davis appealed the trial court’s order that same day. This

Court allowed Ms. Davis’ petition for a writ of supersedeas and

stayed the trial court’s Rule 60(b) order pending disposition of

this appeal.

Analysis

Ordinarily, this Court hears appeals only after entry of a

final judgment that leaves nothing further to be done in the -5- trial court. See Steele v. Hauling Co., 260 N.C. 486, 491, 133

S.E.2d 197, 201 (1963). An interlocutory order entered before

final judgment is immediately appealable “in only two

circumstances: (1) if the trial court has certified the case for

appeal under Rule 54(b) of the Rules of Civil Procedure; and (2)

when the challenged order affects a substantial right of the

appellant that would be lost without immediate review.”

Robinson v. Gardner, 167 N.C. App. 763, 767, 606 S.E.2d 449, 452

(2005) (quotation marks omitted).

The trial court’s Rule 60(b) order in this case is a

textbook example of a non-final, interlocutory order; it took an

otherwise final judgment and re-opened it, requiring “further

action by the trial court in order to settle and determine the

entire controversy.” Veazey v. City of Durham, 231 N.C. 357,

362, 57 S.E.2d 377, 381 (1950); see also Metcalf v. Palmer, 46

N.C. App. 622, 624, 265 S.E.2d 484, 484 (1980) (holding that

orders granting a Rule 60(b) motion are, by their nature,

interlocutory). Thus, the trial court’s order in this case is

appealable only if it is properly certified under Rule 54(b) or

if it affects a substantial right.

Ms. Davis first asserts that the trial court’s order is

appealable because “[t]he trial court entered a Certification of -6- Order for Immediate Appeal” under Rule 54(b) in this case. And,

indeed, the trial court entered an order in this case entitled

“Certification of Order for Immediate Appellate Review.” That

order purports to authorize an immediate appeal under Rule 54(b)

of the Rules of Civil Procedure.

But Rule 54(b) does not apply here. Under Rule 54(b), a

trial court may certify a case for immediate appeal when it

enters “a final judgment as to one or more but fewer than all of

the claims or parties” in the case. See N.C. Gen. Stat. § 1A-1,

Rule 54(b). The Rule 60(b) order from which Ms. Davis appeals

did not enter a final judgment on some but not all claims;

rather, it set aside an earlier final judgment under Rule 60(b),

re-opening the case in its entirety. Thus, the trial court’s

order could not properly be certified under Rule 54(b).

It is well-settled that the trial court’s mistaken

certification of a non-final order under Rule 54(b) is

ineffective and does not confer appellate jurisdiction on this

Court. See, e.g., First Atl. Mgmt. Corp. v. Dunlea Realty Co.,

131 N.C. App. 242, 248, 507 S.E.2d 56, 61 (1998). Accordingly,

we reject Ms. Davis’ argument that her appeal is properly before

us based on the trial court’s improper Rule 54(b) certification. -7- Next, Ms. Davis asserts that the trial court’s Rule 60(b)

order affects a substantial right. This Court, and our Supreme

Court, repeatedly have held that Rule 60(b) motions setting

aside the entry of summary judgment (as happened here) do not

affect a substantial right. See, e.g., Waters v. Qualified

Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978);

Braun v. Grundman, 63 N.C. App. 387, 388, 304 S.E.2d 636, 637

(1983); Robinson v. Gardner, 167 N.C. App. 763, 768, 606 S.E.2d

449, 452 (2005). In Baker, this Court acknowledged that an

appeal from a “trial court’s order setting aside the judgment of

absolute divorce and permitting defendant to file her answer and

counterclaim for equitable distribution” was “interlocutory and

subject to dismissal.” 115 N.C. App. at 339, 444 S.E.2d at 480.

Relying on this precedent, this Court recently dismissed an

appeal from a Rule 60(b) order in an absolute divorce case

involving facts nearly identical to both Baker and the present

case. See Steele v. Steele, No. COA 14-231 (N.C. App. 2014).

Ms. Davis argues that this precedent is not controlling

because the trial court’s Rule 60(b) order is “analogous” to the

denial of a motion based on collateral estoppel, which affects a

substantial right. See Hillsboro Partners LLC v. City of

Fayetteville, ___ N.C. App. ___, ___, 738 S.E.2d 819, 823 -8- (2013). This is so, according to Ms. Davis, because of the

effect of Section 50-11(e) of the General Statutes. Section 50-

11(e) states that “[a]n absolute divorce obtained within this

State shall destroy the right of a spouse to equitable

distribution . . . unless the right is asserted prior to

judgment of absolute divorce.” N.C. Gen. Stat. § 50-11(e)

(2013). Ms. Davis argues that the trial court’s Rule 60(b)

order is immediately appealable because, as a consequence of

§ 50-11(e) and the entry of her absolute divorce judgment, Mr.

Campbell was “effectively collaterally estopped as a matter of

law from asserting a new equitable distribution claim.”

We cannot accept this argument because it ignores why our

appellate courts hold that denial of a motion based on

collateral estoppel affects a substantial right. Collateral

estoppel is intended to “prevent repetitious lawsuits.” Turner

v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773

(2009). It ensures that parties (or those in privity) are not

forced to re-litigate issues that were fully litigated and

actually determined in previous legal actions. Id. Our

appellate courts have concluded that an order denying a motion

based on collateral estoppel is immediately appealable because -9- “parties have a substantial right to avoid litigating issues

that have already been determined by a final judgment.” Id.

That is not the situation here. The trial court’s order

will not force Ms. Davis to re-litigate equitable distribution

issues that already were determined by a court in an earlier

proceeding. Indeed, in the only similar proceeding between the

parties, Ms. Davis voluntarily dismissed her equitable

distribution claim, preventing the trial court from determining

that issue on the merits.

In effect, Ms. Davis argues not that she is compelled to

re-litigate an issue previously determined by a court, but

instead that she must fully litigate—for the first time—an issue

that she thought was precluded by the judgment she obtained.

But that argument can be made in virtually every Rule 60(b) case

and our appellate courts have long rejected it as a basis for

immediate appeal. See Waters, 294 N.C. at 208, 240 S.E.2d at

344; Robinson, 167 N.C. App. at 768, 606 S.E.2d at 452. In

short, because no court has yet adjudicated the parties’

equitable distribution claim, Ms. Davis cannot rely on our

collateral estoppel precedent to immediately appeal the trial

court’s Rule 60(b) order. -10- Ms. Davis also argues that the trial court’s order results

in “the possibility of having to litigate two separate equitable

distribution cases on the same claims with inconsistent

verdicts.” But Ms. Davis voluntarily dismissed her own

equitable distribution claim after obtaining her absolute

divorce judgment—meaning there was no verdict on that claim.

See N.C. Gen. Stat. § 1A-1, Rule 41(a) (dismissal without

prejudice is not “an adjudication upon the merits”). Simply

put, the trial court’s Rule 60(b) order does not expose Ms.

Davis to the risk of a second, inconsistent equitable

distribution verdict because there was never a first equitable

distribution verdict.

Finally, Ms. Davis argues that she might “be forced to take

steps to invalidate the true representations she has made in

reliance on the Divorce Judgment to establish herself as a

single individual.” But she does not explain how changing those

“true representations” about her marital status would rise to

the level of affecting a substantial right. From this record,

it is impossible to tell whether this would be a complicated

process or something as simple as filling out some additional

paperwork. As this Court has repeatedly held, “[i]t is not the

duty of this Court to construct arguments for or find support -11- for appellant’s right to appeal from an interlocutory order;

instead, the 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).

Moreover, Ms. Davis has provided no reason why she could

not renew her motion for entry of the absolute divorce judgment

as soon as Mr. Campbell asserts his claim for equitable

distribution. The trial court already considered and granted

that motion once before, and likely would do so promptly a

second time. Thus, the time period in which Ms. Davis would be

deprived of her previously entered divorce judgment likely would

be exceedingly short. Ms. Davis offers no evidence or argument

to the contrary. Accordingly, we hold that Ms. Davis “has not

met [her] burden of showing this Court that the order deprives

[her] of a substantial right.” Allen v. Stone, 161 N.C. App.

519, 522, 588 S.E.2d 495, 497 (2003).

In dismissing this appeal, we do not suggest that no

litigant can satisfy the substantial rights test in similar

circumstances. We can imagine a number of specific factual

circumstances in which a Rule 60(b) motion setting aside a -12- judgment for absolute divorce, and effectively remarrying the

parties, might affect a substantial right. But “[t]he extent to

which an interlocutory order affects a substantial right must be

determined on a case-by-case basis.” Hamilton v. Mtge. Info.

Serv., Inc., 212 N.C. App. 73, 78, 711 S.E.2d 185, 189 (2011).

Here, as in the Steele appeal that we dismissed several months

ago, the appellant did not make a sufficient showing to satisfy

the substantial rights test.

Conclusion

For the reasons discussed above, we dismiss this appeal for

lack of appellate jurisdiction. We also decline Ms. Davis’

request to construe her appellate filings as a petition for a

writ of certiorari. Ms. Davis will have a full and fair

opportunity for appellate review of the trial court’s Rule 60(b)

order after entry of final judgment in this case. Thus,

certiorari is not appropriate here. See Sood v. Sood, ___ N.C.

App. ___, ___, 732 S.E.2d 603, 609, appeal dismissed, 366 N.C.

417, 735 S.E.2d 336 (2012).

DISMISSED.

Judges STEELMAN and GEER concur.