An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-727
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
CASANDRA L. SPENCER,
Plaintiff,
v. Stokes County
No. 12 CVD 57
DALLAS THOMAS SPENCER, JR.,
Defendant.
Appeal by defendant from order entered 22 January 2013 by
Judge Charles M. Neaves, Jr. in Stokes County District Court.
Heard in the Court of Appeals 9 December 2013.
Bennett & West, by Michael R. Bennett, for plaintiff–
appellee.
Randolph and Fischer, by J. Clark Fischer, for defendant—
appellant.
MARTIN, Chief Judge.
Defendant Dallas Thomas Spencer, Jr. (“husband”) appeals
from an order that directs him to pay child support to plaintiff
Casandra L. Spencer (“wife”) in the amount of $1,200.00 per
month. For the reasons stated herein, we dismiss this appeal.
In January 2012, wife filed a complaint against husband in
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which she sought child custody, child support, post-separation
support, alimony, equitable distribution, and attorney’s fees.
Husband answered and counterclaimed for equitable distribution,
child custody, and attorney’s fees. In March 2012, the court
entered a temporary order in which it determined only the issues
of child custody and child support. Husband moved to set aside
or modify the temporary order, which motion was heard in late
2012. On 22 January 2013, the court entered an order in which
it set forth the physical child custody schedule for husband and
wife’s three minor children, and reduced husband’s monthly child
support obligation from $1,461.00 to $1,200.00. Husband
appeals.
_________________________
“Since the question [of] whether an appeal is interlocutory
presents a jurisdictional issue, this Court has an obligation to
address the issue sua sponte regardless [of] whether it is
raised by the parties.” Akers v. City of Mt. Airy, 175 N.C.
App. 777, 778, 625 S.E.2d 145, 146 (2006). “As a general rule,
interlocutory orders are not immediately appealable.” Turner v.
Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773
(2009), appeal after remand on other grounds, __ N.C. App. __,
__ S.E.2d __ (No. COA11-1420) (filed Dec. 18, 2012)
(unpublished). Nevertheless, a party “is permitted to appeal
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from an interlocutory order when the trial court enters a final
judgment as to one or more but fewer than all of the claims or
parties and the trial court certifies in the judgment that there
is no just reason to delay the appeal,” Jeffreys v. Raleigh Oaks
Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253
(1994) (internal quotation marks omitted), or “when the order
deprives the appellant of a substantial right which would be
jeopardized absent a review prior to a final determination on
the merits.” Id. (internal quotation marks omitted). “The
reason for these rules is to prevent fragmentary, premature and
unnecessary appeals by permitting the trial divisions to have
done with a case fully and finally before it is presented to the
appellate division.” Waters v. Qualified Pers., Inc., 294 N.C.
200, 207, 240 S.E.2d 338, 343 (1978).
In the present case, wife asserted claims regarding child
custody, child support, post-separation support, alimony,
equitable distribution, and attorney’s fees, and husband
counterclaimed regarding issues of equitable distribution, child
custody, and attorney’s fees. However, the record reflects that
the court finally determined only the issues of child custody
and child support. Because there is no indication in the record
that the issues of post-separation support, alimony, or
equitable distribution have been finally determined or
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dismissed, we conclude that husband’s appeal is interlocutory.
See, e.g., Evans v. Evans, 158 N.C. App. 533, 534, 581 S.E.2d
464, 465 (2003) (“In the present case, the trial court’s order
[from which defendant appeals determined issues regarding post-
separation support, child custody, and child support, but] did
not resolve the parties’ respective claims for equitable
distribution and for attorney’s fees, and did not rule on
defendant’s claim for alimony. We conclude that the order from
which defendant appeals was interlocutory.”), appeal after
remand on other grounds, 169 N.C. App. 358, 610 S.E.2d 264
(2005).
Nonetheless, we recognize that the General Assembly has
recently “amend[ed] the laws pertaining to interlocutory appeals
as related to family law,” 2013 N.C. Sess. Laws 286, 286,
ch. 411, including N.C.G.S. § 7A-27(b), which now provides that
an appeal “lies of right directly to” this Court from any
interlocutory order or judgment of a superior or district court
in a civil action which determines a claim prosecuted under
N.C.G.S. § 50-19.1. See N.C. Gen. Stat. § 7A-27(b)(3)(e)
(2013); see also N.C. Gen. Stat. § 50-19.1 (2013)
(“Notwithstanding any other pending claims filed in the same
action, a party may appeal from an order or judgment
adjudicating a claim for absolute divorce, divorce from bed and
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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.”).
However, because the legislation that would permit husband to
immediately appeal from the court’s 22 January 2013
interlocutory order was not effective until eight months after
the trial court entered the order from which husband now seeks
to appeal, see 2013 N.C. Sess. Laws 286, 287, ch. 411, § 3, we
dismiss husband’s appeal.
Dismissed.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).