An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-700
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
HAYLEY L. HARRISON-FLOYD,
Plaintiff
v. Pitt County
No. 09 CVD 3555
JEFFREY W. FLOYD,
Defendant.
Appeal by defendant from judgment entered 10 January 2013
by Judge Darrell B. Cayton, Jr. in Pitt County District Court.
Heard in the Court of Appeals 6 November 2013.
Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.
Smith, III, and R. Gray Jernigan, for plaintiff-appellee.
W. Gregory Duke for defendant-appellant.
DAVIS, Judge.
Jeffrey W. Floyd (“Defendant”) appeals from the trial
court’s equitable distribution judgment. On appeal, he argues
that the trial court erred in (1) distributing the second
mortgage on the parties’ marital residence to him; and (2)
making an equal division of the net marital estate. After
careful review, we conclude that Defendant’s interlocutory
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appeal does not implicate a substantial right and should be
dismissed.
Factual Background
Hayley L. Harrison-Floyd (“Plaintiff”) and Defendant were
married on 29 November 1993, separated on 15 January 2010, and
divorced on 4 August 2011. Two minor children were born of the
marriage. On 12 October 2009, Plaintiff filed a complaint
against Defendant seeking divorce from bed and board, child
custody and support, and equitable distribution. Defendant
filed an answer and counterclaim on 20 October 2009 seeking
divorce from bed and board, child custody, child support,
equitable distribution and interim equitable distribution, post-
separation support and alimony, and attorney’s fees.
On 20 February 2010, the trial court entered an order (1)
granting the parties temporary joint legal and physical custody
of the minor children; (2) granting Defendant’s claim for
divorce from bed and board; (3) ordering Plaintiff to pay child
support and post-separation support to Defendant; (4) ordering
Plaintiff to vacate the former marital residence; and (5)
requiring Defendant to pay at least $200 per month towards the
equity line of credit encumbering the former marital residence.
On 29 February 2012, the trial court entered an amended
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pretrial order by consent of the parties regarding their claims
for equitable distribution. The pretrial order set forth
several stipulations as to the classification and valuation of
certain property and listed other property as to which the
parties disputed either the value, the classification, or both.
An equitable distribution hearing was held on 20 September
2012, and the trial court entered a judgment of equitable
distribution on 10 January 2013. In its judgment, the trial
court determined that the former marital residence was
Plaintiff’s separate property and, for this reason, was not
subject to equitable distribution. The trial court also
concluded that an equal division of the net marital estate was
equitable. Defendant filed a notice of appeal on 4 February
2013.
Analysis
As an initial matter, we must determine whether we have
jurisdiction over Defendant’s interlocutory appeal. “A judgment
is either interlocutory or the final determination of the rights
of the parties.” N.C.R. Civ. P. 54(a).
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,
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but leaves it for further action by the
trial court in order to settle and determine
the entire controversy.
Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d
261, 263 (2007) (citation omitted). The 10 January 2013
equitable distribution judgment leaves open for future
resolution the parties’ claims for permanent child custody and
permanent child support and, therefore, does not dispose of the
entire case. As such, it is interlocutory.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Review of
an interlocutory judgment is permissible, however, when the
judgment (1) affects a substantial right which would be lost
absent immediate review, N.C. Gen. Stat. § 1-277(a); or (2) is
final as to some but not all of the claims or parties and the
trial court has certified the case for immediate appellate
review pursuant to Rule 54(b) of the North Carolina Rules of
Civil Procedure. N.C. Dep’t of Transp. v. Page, 119 N.C. App.
730, 734, 460 S.E.2d 332, 334 (1995).
Here, the trial court did not make a Rule 54(b)
certification as to the equitable distribution judgment from
which Defendant seeks to appeal. Thus, the dispositive question
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for jurisdictional purposes is whether the trial court’s
judgment affects a substantial right such that Defendant’s
appeal is properly before this Court. Turner v. Norfolk S.
Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).1
Our courts have described a substantial right as one that
“materially affect[s] those interests which a man is entitled to
have preserved and protected by law: a material right.”
Oestreicher v. Am. Nat’l Stores, Inc., 290 N.C. 118, 130, 225
S.E.2d 797, 805 (1976) (citation and quotation marks omitted).
The party seeking to appeal from an interlocutory order has the
burden of establishing that a substantial right would be
jeopardized unless he is permitted to immediately appeal.
Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262
(2001).
Here, Defendant acknowledges the interlocutory nature of
the trial court’s equitable distribution judgment but claims
1
We note that the General Assembly has recently amended Article
1 of Chapter 50 to create a statutory right of immediate appeal
“from an order or judgment adjudicating a claim for absolute
divorce, divorce from bed and board, child custody, child
support, alimony, or equitable distribution if the order or
judgment would otherwise be a final order or judgment within the
meaning of G.S. 1A-1, Rule 54(b), but for the other pending
claims in the same action.” 2013 N.C. Sess. Law 411, § 2. This
act became effective when it was signed into law by the Governor
on 23 August 2013 and, as such, does not apply to Defendant’s
appeal, which was noticed on 4 February 2013.
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that the 10 January 2013 judgment affects a substantial right
based on our decision in Soares v. Soares, 86 N.C. App. 369, 357
S.E.2d 418 (1987). We disagree.
In Soares, the defendant sought to appeal from an order
denying her claim for alimony and ordering the sale of the
marital home in order to effectuate the equitable distribution
of the parties’ marital property. The order specifically held
open the matter for determination of the parties’ claims for
equitable distribution and child support and, thus, was “not a
final judgment by its own terms.” Id. at 370, 357 S.E.2d at
418. This Court concluded, however, that because the trial
court’s order required the sale of the marital residence, it
affected a substantial right and entitled the defendant to an
immediate appeal. Id.
Here, conversely, the trial court did not direct the sale
of the marital home; rather, it simply determined that the
residence was Plaintiff’s separate property and that only the
value of the improvements made during the parties’ marriage
constituted marital property subject to distribution. Defendant
does not dispute the classification of the residence in his
brief. Instead, he argues that the trial court abused its
discretion because its “decision to distribute the equity line
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of the mortgage debt to the non-title holder of the real
property creates an untenable situation for both the Plaintiff
and the Defendant” in that Defendant is required to pay a debt
on a home he neither owns nor possesses and Plaintiff’s ability
to own and possess the home is dependent on Defendant’s ability
to pay the debt.
Defendant has failed to demonstrate how the present case is
analogous to our decision in Soares. Nor has he offered any
other argument as to why the trial court’s distributional scheme
would “work injury . . . if not corrected before appeal from
final judgment.” Goldston, 326 N.C. at 726, 392 S.E.2d at 736;
see Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679
S.E.2d 512, 516 (“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.”) (emphasis
in original)), disc. review denied, 363 N.C. 653, 686 S.E.2d 515
(2009); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,
379, 444 S.E.2d 252, 253 (1994) (“[I]t is the appellant’s burden to
present appropriate grounds for this Court’s acceptance of an
interlocutory appeal . . . .”).
“Our courts have generally taken a restrictive view of the
substantial right exception. . . . [and] [i]nterlocutory appeals
that challenge only the financial repercussions of a separation
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or divorce generally have not been held to affect a substantial
right.” Embler, 143 N.C. App. at 166, 545 S.E.2d at 262
(determining that equitable distribution order was interlocutory
and not immediately appealable because custody, child support,
and alimony issues had not yet been resolved and appellant
failed to show substantial right was affected). We conclude
that Defendant has failed to establish that a substantial right
will be affected unless he is allowed to immediately appeal from
the trial court’s 10 January 2013 judgment. Accordingly, we
dismiss Defendant’s appeal.
Conclusion
For the reasons stated above, Defendant’s interlocutory
appeal is dismissed.
DISMISSED.
Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).