An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1264
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
EDWARD LEWIS MURRELLE,
Plaintiff,
v. Carteret County
Nos. 10 CVD 1713, 12 CVD 133
CYNTHIA STARCALA MURRELLE,
Defendant.
Appeal by Plaintiff from order entered 30 April 20131 by
Judge Peter Mack in Carteret County District Court. Heard in
the Court of Appeals 5 March 2014.
Schulz Stephenson Law, by Bradley N. Schultz and Sundee G.
Stephenson, for Plaintiff.
Anderson Jones, PLLC, by Todd A. Jones and M. Caroline
Lindsey, for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
1
Plaintiff’s amended notice of appeal lists twelve other orders
entered on various dates by several Carteret County District
Court judges. For the reasons discussed below, Plaintiff’s
purported appeal of those orders is dismissed.
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This appeal arises from several interlocutory orders
entered in legal actions surrounding the dissolution of the
parties’ marriage. Plaintiff Edward Lewis Murrelle and
Defendant Cynthia Starcala Murrelle were married in April 1995.
On 21 December 2010, Defendant filed a complaint in file number
10 CVD 1713 in Carteret County District Court seeking a divorce
from bed and board, post-separation support, alimony, and
attorney’s fees (“Defendant’s case”). On the same date,
Defendant moved for injunctive relief to prevent Plaintiff from
canceling Defendant’s health insurance. An ex parte order
enjoining Plaintiff from canceling Defendant’s health insurance
was entered on 21 December 2010.
On 25 January 2011, Plaintiff answered Defendant’s
complaint and counterclaimed for divorce from bed and board and
for equitable distribution. On 31 May 2011, Plaintiff moved for
dismissal of Defendant’s claims for post-separation support,
alimony, and attorney’s fees, asserting a lack of subject matter
jurisdiction. In support of his motion, Plaintiff noted that
Defendant’s complaint had alleged that the parties were still
living in the marital residence and that Defendant’s reply to
Plaintiff’s counterclaims alleged that the parties were not
separated. The district court denied that motion.
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On 3 August 2011, Defendant filed a motion in the cause
asking that Plaintiff be ordered to pay for and not cancel her
health insurance during the pendency of her action for divorce
from bed and board and alimony; an order granting this motion
and awarding spousal support in the form of health insurance was
entered on 5 August 2011. On 4 August 2011, the court entered
an order which dismissed Defendant’s December 2010 ex parte
order and denied Plaintiff’s motion to dismiss. On 16 August
2011, a memorandum of judgment/order was entered in which
Plaintiff agreed to continue Defendant’s health insurance, and
Defendant agreed to the listing of the marital residence for
sale.2 On 28 February 2012, Plaintiff moved for relief from the
4 August 2011 order to the extent it denied his first motion to
dismiss, renewing that earlier motion at the same time.
Plaintiff filed his complaint for absolute divorce in file
number 12 CVD 133 in Carteret County District Court on 7
February 2012 (“Plaintiff’s case”). In that complaint,
Plaintiff alleged that he and Defendant had been separated since
25 January 2011. Defendant filed an unverified motion to
2
During the course of the litigation between the parties, dozens
of other motions and filings were made in Carteret County
District Court. We include in our procedural history only those
which are relevant to the resolution of this appeal or which
provide context therefor.
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dismiss Plaintiff’s case pursuant to Rule 12(b)(6), alleging
that the parties had not separated. On 17 July 2012, Plaintiff
moved for summary judgment on his claim for absolute divorce.
At a hearing on 6 August 2012, the court stated its intention to
grant the absolute divorce. Defendant’s attorney requested
leave until 4:30 p.m. that day to file whatever counterclaims
were necessary to preserve Defendant’s claim for equitable
distribution. Plaintiff’s counsel agreed to this request in
open court.
Defendant then filed an answer along with the agreed-to
counterclaim for equitable distribution in Plaintiff’s case.
Defendant’s answer disputed the date of separation of the
parties set forth in Plaintiff’s complaint and discussed at the
hearing on 6 August. On 7 August 2012, Plaintiff filed a motion
to strike and motion to shorten time, noting Defendant had not
complied with the agreement reached between counsel the previous
day. On the same date, the court entered three orders: one
denying Defendant’s motion to dismiss the divorce complaint, one
granting Plaintiff’s motion to shorten time and to strike parts
of Defendant’s answer, and one granting Plaintiff’s motion for
absolute divorce. In the court’s summary judgment order
granting an absolute divorce, which was entered nunc pro tunc to
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6 August 2012, the court found the parties’ date of separation
to be 25 January 2011. Defendant gave notice of appeal from
that judgment, but later abandoned her appeal.
On 30 October 2012, Plaintiff filed a motion to dismiss
Defendant’s equitable distribution claim in 12 CVD 133 for lack
of subject matter jurisdiction. That motion stated that “there
already exists an action for equitable distribution pending in
Carteret County File Number 10 CVD 1713.” On 9 November 2012,
Defendant moved (1) to dismiss Plaintiff’s motion to dismiss her
equitable distribution claim, (2) to join the two files (10 CVD
1713 and 12 CVD 133), and (3) for attorney’s fees.
On 11 January 2013, Plaintiff responded with a motion to
abate the second equitable distribution claim. On that day, the
district court reviewed the pending motions and denied
Plaintiff’s motion to dismiss Defendant’s equitable distribution
counterclaims in 12 CVD 133. The written order was entered on
30 April 2013, nunc pro tunc to 11 January 2013. A second order
was also entered on 30 April 2013, nunc pro tunc to 11 January
2013, which granted Defendant’s motion to consolidate the files
and denied Plaintiff’s motion to abate.
Plaintiff appeals from both 30 April 2013 orders in file 12
CVD 133. Plaintiff also gave notice of appeal from eleven other
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interlocutory orders in 10 CVD 1713: the ex parte order signed
21 December 2010; continuance orders filed 29 December 2010, 4
January 2011, 15 February 2011, 31 May 2011, and 15 August 2011;
and other orders filed 12 January 2011, 31 May 2011, 4 August
2011, 5 August 2011, and 16 August 2011. On 8 November 2013,
Plaintiff filed a conditional petition for writ of certiorari.
Grounds for Appellate Review/Defendant’s Motion to Dismiss3
On 19 December 2013, Defendant filed a motion for sanctions
and to dismiss Plaintiff’s appeal as interlocutory. We recently
considered a similar interlocutory appeal in Jessee v. Jessee,
212 N.C. App. 426, 713 S.E.2d 28 (2011). Just as in that case,
we agree that the orders from which Plaintiff seeks to appeal
are
clearly interlocutory rather than final in
nature, since the trial court’s orders were
made during the pendency of an action and do
not dispose of the case, but instead leave
it for further action by the trial court in
order to settle and determine the entire
controversy, and since the trial court’s
order did not settle and determine the
entire controversy between the parties. As
a general proposition, there is no right of
3
Our General Statutes have recently been amended to permit
appeals from interlocutory orders or judgments from any
“claim[s] prosecuted under G.S. 50-19.1.” N.C. Gen. Stat. § 7A-
27(b)(3)(e) (2013). However, this provision became effective 23
August 2013, 2013 N.C. Sess. Laws 411, s. 1, and thus is
inapplicable to the appeal in this matter.
-7-
immediate appeal from interlocutory orders
and judgments. A trial court’s refusal to
abate an action based upon the prior pending
action doctrine is, however, immediately
appealable. On the other hand, a trial
court order’s refusal to dismiss a complaint
for lack of subject matter jurisdiction is
not subject to appellate review on an
interlocutory basis as a matter of right.
Id. at 431, 713 S.E.2d at 32-33 (citations, internal quotation
marks, and brackets omitted). In Jessee, even though there was
no right of immediate appeal from the denial of the motion to
dismiss, due to the “interrelated nature of [the] . . . twin
challenges to the trial court’s order,” this Court elected to
address the merits of both. Id. at 431, 713 S.E.2d at 33.
Here, in contrast, the issues presented in Plaintiff’s appeal
are not closely interrelated. Unlike the appellant in Jessee
who challenged a single order on two bases, Plaintiff’s notice
of appeal involves some thirteen orders entered in two files
over a nearly three-year span.
More importantly, as discussed below, resolution of the
issue involving Plaintiff’s motion to abate does not involve the
same facts, law, reasoning, or analysis as would be implicated
in addressing the merits of the other interlocutory orders from
which he seeks to appeal, to wit, the ex parte order signed 21
December 2010 which prohibited Defendant from canceling
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Plaintiff’s health insurance; continuance orders filed 29
December 2010, 4 January 2011, 12 January 2011, 15 February
2011, 31 May 2011, and 15 August 2011; and other orders filed 31
May 2011 (trial judge declining to recuse himself), 4 August
2011 (dismissing Plaintiff’s ex parte order and denying
Defendant’s motion to dismiss), 5 August 2011 (preventing
Defendant from canceling Plaintiff’s health insurance), and 16
August 2011 (requiring Defendant to continue Plaintiff’s health
insurance and requiring parties to list their marital residence
and a boat slip for sale); and the 30 April 2013 order denying
Plaintiff’s motion dismiss Defendant’s counterclaim.
Accordingly, we deny Defendant’s motion to dismiss as to
the order denying Plaintiff’s motion to abate and reach the
merits of that argument. We deny Defendant’s motion for
sanctions in light of Plaintiff’s right of immediate appeal from
the denial of his motion to abate. However, we allow
Defendant’s motion to dismiss as to Plaintiff’s purported appeal
from the remaining interlocutory orders. For the same reasons
discussed supra, we deny Plaintiff’s conditional petition for
writ of certiorari.
Discussion
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Plaintiff argues that the trial court erred in denying his
motion to abate. We disagree.
Plaintiff sought to abate Defendant’s counterclaim for
equitable distribution in 12 CVD 133 based upon the prior
pending action doctrine.4
Under the law of this [S]tate, where a prior
action is pending between the same parties
for the same subject matter in a court
within the [S]tate having like jurisdiction,
the prior action serves to abate the
subsequent action. The prior pending action
doctrine involves essentially the same
questions as the outmoded plea of abatement,
and is, obviously enough, intended to
prevent the maintenance of a subsequent
action that is wholly unnecessary and, for
that reason, furthers the interest of
judicial economy. The ordinary test for
determining whether or not the parties and
causes are the same for the purpose of
abatement by reason of the pendency of the
prior action is this: Do the two actions
present a substantial identity as to
parties, subject matter, issues involved,
and relief demanded?
Id. at 438, 713 S.E.2d at 37 (citations, internal quotation
marks, and brackets omitted).
4
We note that the only “prior action pending” to which Plaintiff
seeks to apply the abatement doctrine is his counterclaim for
equitable distribution in the case Defendant initiated. Were
Plaintiff to prevail in this attempt, Defendant would lose all
equitable distribution rights.
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However, our General Statutes explicitly permit the
possibility of multiple actions related to the dissolution of
marriages under Chapter 50:
(a) Notwithstanding the provisions of
[section] 1A-1, Rule 13(a), any action for
divorce under the provisions of [section]
50-5.1 or [section] 50-6 that is filed as an
independent, separate action may be
prosecuted during the pendency of an action
for:
(1) Alimony;
(2) Postseparation support;
(3) Custody and support of minor
children;
(4) Custody and support of a person
incapable of self-support upon reaching
majority; or
(5) Divorce pursuant to [section] 50-5.1
or [section] 50-6.
(b) Notwithstanding the provisions of
[section] 1A-1, Rule 13(a), any action
described in subdivision (a)(1) through
(a)(5) of this section that is filed as an
independent, separate action may be
prosecuted during the pendency of an action
for divorce under [section] 50-5.1 or
[section] 50-6.
N.C. Gen. Stat. § 50-19 (2013). Further, our General Statutes
explicitly provide three ways to bring an equitable distribution
claim:
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At any time after a husband and wife begin
to live separate and apart from each other,
a claim for equitable distribution may be
filed and adjudicated, either [(1)] as a
separate civil action, or [(2)] together
with any other action brought pursuant to
Chapter 50 of the General Statutes, or [(3)]
as a motion in the cause as provided by
[section] 50-11(e) or (f).
N.C. Gen. Stat. § 50-21(a) (2013).
Here, Defendant initiated the proceedings between the
parties under Chapter 50 on 21 December 2010 by filing of her
complaint for divorce from bed and board, post-separation
support, alimony, and attorney’s fees in 10 CVD 1713. Despite
the pendency of the claims in Defendant’s action, Plaintiff
elected to file his action for absolute divorce as a separate
action. As noted supra, this was permitted by section 50-19(a).
See N.C. Gen. Stat. § 50-19(a). Likewise, per subsection 50-
19(b), Defendant elected to file an equitable distribution
counterclaim in Plaintiff’s action. See N.C. Gen. Stat. § 50-
19(b). Our General Assembly having clearly provided for
multiple actions in the context of Chapter 50 actions, the
doctrine of abatement does not apply to such circumstances.
Accordingly, Plaintiff’s argument is overruled.
AFFIRMED.
Judges BRYANT and DILLON concur.
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Report per Rule 30(e).
Murrelle v. Murrelle
Combined Opinion