Sarno v. Sarno

NO. COA13-1472

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

MICHELLE D. SARNO,
Plaintiff,

v. Mecklenburg County
No. 09-CVD-5222
VINCENT J. SARNO,
Defendant.

Appeal by Plaintiff and Defendant from Order entered 24

April 2013 by Judge Ronald L. Chapman in District Court,

Mecklenburg County. Heard in the Court of Appeals 4 June 2014.

The Law Office of Richard B. Johnson, P.A., by Richard B.
Johnson, for plaintiff-appellant, cross-appellee.

Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant-
appellee, cross-appellant.

STROUD, Judge.

Plaintiff and defendant each appeal from an order for

permanent child support and attorney fees. Because the order

from which the parties have appealed is interlocutory and they

have failed to argue that they are entitled to an interlocutory

appeal based upon impairment of a substantial right, we dismiss

both parties’ appeals.

I. Background
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Plaintiff and defendant were married in 2000 and one child

was born to their marriage, in 2003. They separated in 2006 and

later divorced. In 2009, plaintiff filed a complaint including

claims for child custody and support, and defendant filed an

answer and counterclaims also seeking custody, child support,

and attorney’s fees. Trial on the issues of child support and

custody began on 6 June 2011 and 7 June 2011. On 23 March 2012,

the trial court entered an order of permanent child custody,

which specifically reserved the issue of child support for later

determination. In the custody order, the trial court concluded

that “[t]here was insufficient time to hear evidence and rule on

claims for child support and attorney fees and the court retains

jurisdiction to rule on this issue.” On 24 July 2012, plaintiff

filed a motion to modify custody based on several alleged

changes of circumstances, including claims that the custody

order was based upon the fact that plaintiff had planned to move

to Vermont at the time of the June 2011 hearing, but she had

since decided to remain in North Carolina.

The trial court resumed trial on the issue of permanent

child support on 14 September 2012. On 24 April 2013, the trial

court entered an order for permanent child support and attorney

fees. In this order, the trial court found that plaintiff’s
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motion to modify custody, filed on 24 July 2012, was still

pending. The trial court found that at the 2011 trial,

plaintiff had maintained “with certainty” that she would

relocate to Vermont on 15 July 2011 and sought primary custody

of the minor child. The permanent custody order had awarded

primary custody of the child to defendant and had set a

visitation schedule based upon the fact that plaintiff would be

residing in Vermont and the defendant and child in North

Carolina, with “extended time in the summers and school

holidays” but “not enough overnights” to require that

plaintiff’s child support be established under Schedule B of the

Child Support Guidelines.

The trial court also found that despite the visitation

schedule established in the custody order, since plaintiff had

remained in North Carolina, she had actually exercised

additional weekend visitation during the school year, beyond

that dictated by the custody order. The trial court found that

“plaintiff’s testimony of her overnights did not convince the

court of an exact amount of parenting time” and that defendant’s

theory for calculating the parties’ overnights was “confusing.”

The trial court found that plaintiff had 135 overnight visits

per year, sufficient for child support to be set on Worksheet B,
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but based upon the uncertainty of the exact amount of visitation

as well as additional findings of fact regarding the parties’

financial situations and sharing of expenses, established child

support accordingly, based upon Schedule A. The trial court

also found that “while there is a motion to modify custody

outstanding, child support needs to be established based on the

current order and practice of the parties.”

The trial court also made findings, when addressing the

issue of attorney’s fees, as to the delay in the progress of the

case. The court found that “procedurally, this case has been

slowed by the heavy case load of the court system, trial

strategy decisions by the Plaintiff’s counsel, the health issues

of the prior trial counsel, as well as personal decisions by

Plaintiff.” One of these decisions was that “after receiving an

undesirable result in the custody [matter], Plaintiff changed

course, and opted to stay in North Carolina, presumably

believing that this would negate the effects of the Court’s

ruling.” According to the record before us, plaintiff’s motion

for modification of custody remains outstanding.

II. Interlocutory Order

Although neither party has raised the issue, it is apparent

from the provisions of the child support order on appeal that we
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must first consider whether this order is a final, appealable

order.

Generally, there is no right of immediate
appeal from interlocutory orders and
judgments. 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. On the other hand, 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.

Hausle v. Hausle, ___ N.C. App. ___, ___, 739 S.E.2d 203, 205-06

(2013) (citations and quotation marks omitted). “The reason for

this rule is to prevent fragmentary, premature, and unnecessary

appeals by permitting the trial court to bring the case to final

judgment before it is presented to the appellate courts.” Peters

v. Peters, ___ N.C. App. ___, ___, 754 S.E.2d 437, 439 (2014)

(citation, quotation marks, and brackets omitted). “In the child

support context, an order setting child support is not a final

order for purposes of appeal until no further action is

necessary before the trial court upon the motion or pleading

then being considered.” Banner v. Hatcher, 124 N.C. App. 439,

441, 477 S.E.2d 249, 250 (1996).

We have said in the child custody context that
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[a] trial court’s label of a custody order
as “temporary” is not dispositive. A custody
order is, in fact, temporary if either (1)
it is entered without prejudice to either
party, (2) it states a clear and specific
reconvening time in the order and the time
interval between the two hearings was
reasonably brief; or (3) the order does not
determine all the issues.

Sood v. Sood, ___ N.C. App. ___, ___, 732 S.E.2d 603, 606 (2012)

(citations and quotation marks omitted), cert. and disc. rev.

denied, and app. dismissed, 366 N.C. 417, 735 S.E.2d 336 (2012).

These rules logically apply to the child support context as

well. Indeed, support and custody are normally addressed in the

same order if the two claims are heard at the same trial, as

they were here. The unusual procedural feature here was the

bifurcation of the issues by issuing two separate orders based

upon the one trial, with plaintiff’s motion to modify custody

being filed in between the first and second sessions of the

trial. This unusual procedural posture was created by a

combination of the plaintiff’s actions and circumstances beyond

the control of the parties or the trial court, but still it

resulted in an order which fails to provide a complete

resolution of all issues.

Although the child support order was labeled as a

“permanent” order and did not set a specific hearing date for a
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hearing upon plaintiff’s pending motion, the provisions of the

order address in detail some of the changes in circumstances

since the custody order, such as plaintiff’s decision to remain

in North Carolina, which may necessitate additional change in

the child support obligation as well. In fact, one of the

primary issues was how much custodial time is being exercised by

plaintiff, including consideration of the actual visitation, as

practiced by the parties, compared to the visitation dictated by

the existing custody order, and the establishment of child

support depends heavily upon this determination. This order did

not resolve all pending issues, due to plaintiff’s outstanding

motion to modify custody, which the trial court acknowledged by

various findings in the child support order addressing

plaintiff’s outstanding motion, clearly anticipating that the

child support issue would need to be revisited after plaintiff’s

motion to modify is heard. Addressing the parties’ contentions

at this time would result in “fragmentary, premature, and

unnecessary appeals[.]” Peters, ___ N.C. App. at ___, 754 S.E.2d

at 439.

For an interlocutory order to be immediately appealable,

either the trial court must certify the case for immediate

appeal or the appellant must demonstrate that a substantial
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right will be impaired by delay in the appeal. Id. The parties

have not acknowledged that the order is interlocutory and have

not made any argument as to any substantial interest which would

be impaired by delay. See id. at ___, 754 S.E.2d at 441 (noting

that orders affecting only “the financial repercussion of a

separation or divorce” generally do not affect a substantial

right). Therefore, both parties’ appeals must be dismissed.1

III. Conclusion

For the foregoing reasons, we must dismiss plaintiff’s

appeal as interlocutory.

DISMISSED.

Judges STEPHENS and MCCULLOUGH concur.

1
We note that the Legislature recently enacted Session Law 2013-
411, codified at N.C. Gen. Stat. § 50-19.1 (2013), which governs
appeals of certain interlocutory family law orders. However,
this statute only became effective 23 August 2013, after the
order on appeal was entered. 2013 N.C. Sess. Laws ch. 411, § 2.
Therefore, it does not apply here and we express no opinion on
how it would affect our analysis.