An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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.
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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).
French v. French
Combined Opinion