French v. French

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-1239
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1239 NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

EDWIN CARL FRENCH, Plaintiff,

v. Buncombe County No. 11 CVD 6035 REBEKAH ABRAMS FRENCH, Defendant.

Appeal by defendant from order entered 15 May 2013 by Judge

Susan Dotson-Smith in Buncombe County District Court. Heard in

the Court of Appeals 18 March 2014.

Mary Elizabeth Arrowood for defendant-appellant.

No brief was filed on behalf of plaintiff.

BRYANT, Judge.

Because defendant appeals from an interlocutory order not

certified for immediate appeal and fails to establish that a

substantial right will be lost if immediate appellate review is

not allowed, we dismiss this appeal.

On 2 December 2011 in Buncombe County District Court,

plaintiff Edwin Carl French filed a complaint for an absolute

divorce from defendant Rebekah Abrams French. The parties had -2- previously entered into a Separation and Property Settlement

Agreement which required that it be incorporated into a judgment

for divorce. On 23 January 2012, judgment was entered granting

plaintiff an absolute divorce and incorporating the separation

agreement which “address[ed] all issues regarding equitable

distribution and support[.]”

Pursuant to the separation agreement, the parties

acknowledged they would not likely be able to sell the marital

home for a price equal to or higher than the combined mortgage

debt of $166,000.00. Nevertheless, the agreement required that

the home be listed for sale at a price that would equal or

exceed the amount of debt secured by the home if certain

conditions were not met. Thereafter, plaintiff filed against

defendant a motion “to show cause (contempt) or to compel” for

failure to refinance, renovate, or otherwise remove plaintiff’s

name from the mortgage, and for attorney fees. After a hearing,

the court found that defendant had shown why she should not be

held in contempt of court; however, defendant was ordered to

immediately reduce the asking price and aggressively market the

marital residence for sale. Included in the order was a denial

of plaintiff’s motion for attorney fees. A subsequent review

hearing was held on 3 April 2013. The court ordered that -3- defendant drop the asking price for the home incrementally over

the next two months and ordered another review hearing if the

residence did not sell before 1 July 2013. The court noted that

although defendant owed plaintiff attorney fees for failure to

perform under the terms of the 23 January 2012 judgment,

defendant could purge this obligation if she sold or refinanced

the house by a date certain. Further, the trial court noted

that if the house did not sell, the court “may entertain

testimony regarding Defendant’s criminal Contempt[.]”

Therefore, it appears the issue of contempt was left open as was

the issue of attorney fees. Defendant appeals.

__________________________________

Defendant raises several issues on appeal. However,

because defendant appeals from an order which leaves open issues

yet to be determined, we must first consider whether this appeal

is properly before this Court.

Interlocutory appeal

“A judgment is either interlocutory or the final

determination of the rights of the parties.” N.C. Gen. Stat. §

1A-1 Rule 54(a) (2013). “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 -4- 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)

(citation omitted). “Generally, there is no right of immediate

appeal from interlocutory orders and judgments. Since the

question whether an appeal is interlocutory presents a

jurisdictional issue, this Court has an obligation to address

the issue sua sponte regardless whether it is raised by the

parties.” Plomaritis v. Plomaritis, 200 N.C. App. 426, 428, 684

S.E.2d 702, 704 (2009) (citation and quotations omitted).

An interlocutory order is immediately appealable only under two circumstances. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b), an immediate appeal will lie. . . . Secondly, an interlocutory order is immediately appealable if the challenged order affects a substantial right of the appellant that would be lost without immediate review. A substantial right is a right which will be lost or irremediably adversely affected if the order is not reviewable before the final judgment. The burden is on Defendant to establish that a substantial right will be affected unless [she] is allowed immediate appeal from an interlocutory order.

Id. at 429, 684 S.E.2d at 704 (citations and quotations

omitted). “Our appellate courts have generally taken a

restrictive view of the substantial right exception.” FMB, Inc. -5- v. Creech, 198 N.C. App. 177, 180, 679 S.E.2d 410, 412 (2009)

(citation omitted).

Defendant appeals from an order which leaves for further

determination the award of attorney fees, enforcement of the

Contract of Separation and Property Settlement Agreement as it

provides for the distribution of the marital residence, and a

potential criminal contempt hearing against defendant contingent

upon whether an unknown third-party enters into a real estate

contract to purchase the aforementioned marital residence.

Therefore, defendant’s appeal is interlocutory. See Veazey, 231

N.C. at 362, 57 S.E.2d at 381. Further, the trial court failed

to certify this matter for immediate appeal, and defendant does

not argue that a substantial right will be lost should she not

be allowed to appeal this interlocutory order. We will not

construct an argument for her. See First Charter Bank v. Am.

Children's Home, 203 N.C. App. 574, 580, 692 S.E.2d 457, 463

(2010) (“It is not the role of the appellate courts ... to

create an appeal for an appellant[.]”). Accordingly, we dismiss

this appeal.

Dismissed.

Judges HUNTER, Robert C. and STEELMAN concur.

Report per Rule 30(e).