Podrebarac v. Podrebarac

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-779
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA13-779

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

DONALD R. PODREBARAC, Plaintiff,

v. Union County No. 08 CVD 4423 BUNTIN S. PODREBARAC, Defendant.

Appeal by appellant from orders entered 13 December 2012 by

Judge N. Hunt Gwyn in Union County District Court. Heard in the

Court of Appeals 11 December 2013.

Harkey Lambeth & Gunter, LLP, by Dorian H. Gunter and Jeffrey S. Williams-Tracy, for plaintiff-appellant.

Woodruff Law Firm, P.A., by Jessica S. Bullock and Carolyn J. Woodruff, for defendant-appellee.

BRYANT, Judge.

Plaintiff Donald R. Podrebarac appeals from the trial

court's orders denying his motions to enforce a mediated

settlement agreement and for a new trial and from the trial

court’s order awarding post-separation support to defendant -2- Buntin S. Podrebarac. For the reasons set forth below, we

dismiss the appeal as interlocutory.

Plaintiff-husband Donald R. Podrebarac (“plaintiff”) and

defendant-wife Buntin S. Podrebarac (“defendant”) were married

on 24 October 1987, separated on 26 December 2007, and

subsequently divorced. On 18 December 2008, plaintiff filed a

complaint for child custody and equitable distribution.

Defendant filed an answer and counterclaim for child custody,

child support, equitable distribution, post-separation support,

alimony, and attorneys’ fees. Plaintiff and defendant then

underwent mediation resulting in an agreement1 signed by both

parties on 29 April 2009.

On 26 September 2011, plaintiff filed a motion for a

protective order and a motion to enforce the mediated settlement

agreement. On 13 April 2012, defendant filed a motion to

dismiss plaintiff’s motion to enforce the mediated settlement

agreement alleging that the agreement was not notarized, and

therefore, did not meet the requirements of N.C. Gen. Stat. §

50-20(d). The trial court, finding that the settlement

agreement was invalid, granted defendant’s motion to dismiss. A

1 We use the term “agreement” or “mediated settlement agreement” when referring to the document in the record entitled “Mediation Stipulations” (but referred to by various other names when used by the parties). -3- formal written order granting defendant’s motion to dismiss was

entered by the trial court on 24 August 2012.

Plaintiff filed a motion for a new trial and in the

alternative, a motion to reconsider or revise the order. On 13

December 2012, the trial court entered an order granting

defendant’s counterclaim against plaintiff for post-separation

support. At the same time, the trial court entered an order

denying plaintiff’s motion for a new trial and alternative

motion to reconsider or revise its 24 August 2012 order.

Plaintiff appeals.

_______________________

Plaintiff argues that the trial court erred: (I) by denying

plaintiff’s motion to enforce the mediated settlement agreement;

(II) by denying plaintiff’s motion for a new trial; and (III) by

entering an order for post-separation support.

Interlocutory appeal

Plaintiff concedes that the orders from which he appeals

did not dispose of his claims for child custody or equitable

distribution, and therefore, the orders are interlocutory. As

the trial court’s ruling did not dispose of plaintiff’s claims

for child custody and equitable distribution but instead only

disposes of plaintiff’s plea in bar to those claims as set forth -4- in the mediated settlement agreement, the court’s ruling is

indeed interlocutory. Veazey v. City of Durham, 231 N.C. 357,

361—62, 57 S.E.2d 377, 381 (1950); see also Garris v. Garris, 92

N.C. App. 467, 469—70, 374 S.E.2d 638, 640 (1988) (holding that

a trial court’s ruling denying the defendant’s claim that the

plaintiff had waived her rights to equitable distribution and

alimony was interlocutory because the ruling only disposed of

the defendant’s plea at bar to the plaintiff’s claims for

equitable distribution and alimony).

Plaintiff argues he would be deprived of a substantial

right should we dismiss his appeal. Alternatively, plaintiff

asks that, should this Court not grant a right to appeal, we

treat his appeal as a petition for writ of certiorari and grant

discretionary review.

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, but leaves it for further action by the trial court in order to settle and determine the entire controversy.

Tridyn Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 488, 251

S.E.2d 443, 445 (1979) (citation and ellipsis omitted).

[A]n interlocutory order can be immediately appealed if the order is final as to some -5- but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal [pursuant to] N.C.R. Civ. P. 54(b). Second, an interlocutory order can be immediately appealed under N.C. Gen. Stat. §§ 1-277(a)[] and 7A-27(d)(1)[] “if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review.”

Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695

(1996) (citation omitted).

An interlocutory order is immediately appealable when "the

challenged order affects a substantial right." N.C.R. App. P.

28(b)(4) (2013). To determine whether an interlocutory order is

immediately appealable "we utilize a two-part test, with the

first inquiry being whether a substantial right is affected by

the challenged order and the second being whether this

substantial right might be lost, prejudiced, or inadequately

preserved in the absence of an immediate appeal." Hamilton v.

Mortg. Info. Servs., 212 N.C. App. 73, 78, 711 S.E.2d 185, 189

(2011) (citations omitted). "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." Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274,

277—78, 679 S.E.2d 512, 516 (2009) (citation omitted). -6- We now review each of plaintiff’s interlocutory issues to

determine if a substantial right exists that requires appellate

review at this time.

I.

In his motion to enforce the mediated settlement agreement,

plaintiff alleged that defendant wrongfully failed to comply

with the mediated settlement agreement after defendant ratified

the mediation stipulations with plaintiff. Plaintiff now

contends that the trial court order denying his motion to

enforce the mediated settlement agreement has affected a

substantial right. Plaintiff asserts that he was denied a right

to an evidentiary hearing on his motion, and that his right to a

hearing would be “irrevocably lost” absent an appeal.

Plaintiff’s argument lacks merit, as the mediated settlement

agreement was the product of mediation sessions between

plaintiff and defendant, rather than a formal adjudication by

the trial court. By ruling that the mediated settlement

agreement was unenforceable, the trial court did not prejudice

or prevent plaintiff from seeking further resolution of his

claims for child custody and equitable distribution. Rather,

the trial court’s denial of plaintiff’s motion to enforce the

mediated settlement agreement simply sends both parties back to -7- their respective starting points to create a new enforceable

mediated settlement agreement. As such, plaintiff has failed to

show that the trial court’s order affected a substantial right.

Plaintiff’s first argument on appeal is dismissed.

II.

Plaintiff, acknowledging that the trial court’s denial of

his motion for a new trial is interlocutory, nevertheless argues

that the trial court erred in denying his motion for a new trial

because under Rule 59(a), by denying plaintiff the ability to

present evidence and witnesses as to the validity of the

mediated settlement agreement, the trial court both abused its

discretion and erred as a matter of law. Plaintiff’s argument,

similar to his first argument, fails to show how the trial

court’s order deprived plaintiff of a substantial right. By

finding the agreement unenforceable, the trial court has not

prejudiced or injured plaintiff such that he cannot proceed to

trial or proceed with new mediation sessions to create a new

settlement agreement. See Blackwelder v. State Dep’t of Human

Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983) (holding

that “avoidance of a rehearing or trial is not a ‘substantial

right’ entitling a party to an immediate appeal”). Plaintiff’s

second argument on appeal is dismissed. -8- III.

Thirdly, plaintiff argues that our failure to address the

trial court’s granting of post-separation support to defendant

will put plaintiff at risk of inconsistent trial verdicts. We

disagree, as our determination that the trial court did not err

in finding the mediated settlement agreement unenforceable does

not expose plaintiff to the risk of inconsistent verdicts.

Rather, the invalidity of the agreement only exposes plaintiff

to the need to undergo either new mediation sessions or to seek

judicial determination of a settlement agreement.

Plaintiff cites Honeycutt v. Honeycutt, 208 N.C. App. 70,

701 S.E.2d 689 (2010), and Buffington v. Buffington, 69 N.C.

App. 483, 317 S.E.2d 97 (1984), as support for his contention

that the trial court’s award of post-separation support to

defendant puts plaintiff at risk of inconsistent trial verdicts.

In Honeycutt, both parties entered into a separation

agreement and property settlement. The plaintiff filed an

action against the defendant two years later seeking rescission

of the agreement, equitable distribution, child support and

attorneys’ fees. The defendant counterclaimed for child support

and restoration of the original agreement and filed a motion for

summary judgment. The trial court granted the defendant partial -9- summary judgment as to the plaintiff’s claims for rescission and

equitable distribution. On appeal, we granted the plaintiff’s

interlocutory appeal because the trial court’s order granting

partial summary judgment affected the plaintiff’s substantial

rights regarding “piecemeal litigation.” Specifically, this

Court held that “the trial court's order completely disposed of

plaintiff's equitable distribution claim and has the effect of

‘preventing adjudication of defendant's counterclaim and

plaintiff's claims in a single lawsuit[.]’" Honeycutt, 208 N.C.

App. at 76, 701 S.E.2d at 693 (citation omitted).

In Buffington, both parties entered into a separation

agreement. The plaintiff then filed for specific performance of

the separation agreement; the defendant counterclaimed alleging

that the agreement was void, seeking equitable distribution.

Both parties filed motions for summary judgment as to the

enforceability of the agreement. The trial court granted the

plaintiff’s motion, holding that the agreement was enforceable.

As in Honeycutt, this Court allowed the defendant’s

interlocutory appeal, noting that as the grant of summary

judgment completely disposed of the defendant’s claim for

equitable distribution, it affected a substantial right.

Buffington, 69 N.C. App. at 486, 317 S.E.2d at 98—99 (“The trial -10- court’s order [granting summary judgment] affects a substantial

right of defendant by preventing adjudication of defendant’s

counterclaim and plaintiff’s claims in a single lawsuit.”).

Honeycutt and Buffington are not applicable to the instant

matter. Here, plaintiff appeals from the trial court’s order

awarding post-separation support, an order which does not

dispose of any of plaintiff’s claims against defendant.

Moreover, “[t]his Court has explained that ‘[p]ostseparation

support is only intended to be temporary and ceases when an

award of alimony is either allowed or denied by the trial

court.’" Langdon v. Langdon, 183 N.C. App. 471, 474, 644 S.E.2d

600, 603 (2007) (citation omitted). As such, an order for

post-separation support is interlocutory. Id. “Further, a

trial court's findings and conclusions in connection with an

award of postseparation support are not binding in connection

with the ultimate outcome of the claim for alimony.” Wells v.

Wells, 132 N.C. App. 401, 411, 512 S.E.2d 468, 474 (1999).

Accordingly, as the trial court’s order awarding post-separation

support “is a temporary measure, it is interlocutory, it does

not affect a substantial right, and it is not appealable[,]”

plaintiff’s argument is not appealable. Rowe v. Rowe, 131 N.C.

App. 409, 411, 507 S.E.2d 317, 319 (1998). -11- Petition for writ of certiorari

In the alternative, plaintiff petitions this Court for

certiorari, which we decline to grant. Having reviewed

plaintiff’s arguments for purposes of interlocutory review, it

is unlikely plaintiff would be granted any relief on appeal

should we allow substantive review of the issues plaintiff

brought forth in his brief.

Dismissed.

Judges CALABRIA and GEER concur.

Report per Rule 30(e).