ANTHONY ALFRED BURCH,
Plaintiff
v. Gaston Count
y
No. 97CVD2108
ELIZABETH COOPER BURCH
(now NICOLETTI),
Defendant
Gray, Layton, Kersh, Solomon, Sigmon, Furr, & Smith, P.A., by
William E. Moore, Jr.; and Hodnett Law, P.A., by Michael K.
Hodnett, for plaintiff appellee.
James R. Carpenter for defendant appellant.
McCULLOUGH, Judge.
This appeal arises out of a custody dispute between plaintiff
Anthony Alfred Burch and defendant Elizabeth Cooper Burch. The
parties were once married, but are now divorced and are the parents
of two minor children: Kayla Marie Burch, born 30 April 1990 and
Joseph Anthony Burch, born 20 May 1997. By consent order entered
11 July 1997, the parties agreed that defendant would have primary
physical custody of the minor children. Primary physical custody
of the minor children continued with defendant, despite plaintiff's
16 April 1999 motion in the cause seeking a modification of theJuly 1997 custody order. After plaintiff failed to return the
minor children to the custody of defendant following weekend
visitation on 16 through 18 February 2001, both plaintiff and
defendant, through counsel, brought this matter to the attention of
the district court. Plaintiff asked the court to hear an oral
motion to modify custody and grant him temporary custody of the
minor children until a full hearing could be heard. Defendant
requested that the court hear her motion by which she sought a
pick-up order for the minor children.
The court heard evidence concerning the parties' oral motions
on or about 19 February 2001. After speaking with the parties'
oldest child in chambers, and hearing the testimony of the parties
and arguments of counsel, the court entered an order granting
plaintiff temporary custody of the minor children pending
psychological evaluation of the parties and their children. The
order also specifically provided that the matter be set for
mediation for 30 April 2001, with the court retaining jurisdiction
of the matter pending further Orders of the Court. Defendant
noticed appeal.
While neither party raises the issue, we note that the custody
order from which defendant appeals is temporary in nature, and
therefore, interlocutory. See Dunlap v. Dunlap, 81 N.C. App. 675,
676, 344 S.E.2d 806, 807 (1986), disc. review denied, 318 N.C. 505,
349 S.E.2d 859 (1986) (noting that [a]n interlocutory order is one
that does not determine the issues, but directs some further
proceeding preliminary to a final decree.). In Berkman v.Berkman, this Court stated, A temporary child custody order is
interlocutory and 'does not affect any substantial right . . .
which cannot be protected by timely appeal from the trial court's
ultimate disposition of the entire controversy on the merits.'
106 N.C. App. 701, 702, 417 S.E.2d 831, 832 (1992) (quoting Dunlap,
81 N.C. App. at 676, 344 S.E.2d at 807 (1986)); but see Brewer v.
Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000) (noting
that [t]he trial court's mere designation of an order as
'temporary' is not sufficient to make the order interlocutory and
nonappealable.).
Here, the district court's order is truly temporary in nature.
The court's order directs that temporary custody of the parties'
minor children be transferred to plaintiff, pending psychological
evaluation of the parties and the minor children to better
determine the issue of where the children should be permanently
placed. The order also provided that mediation would be scheduled
to commence just two weeks after entry of the order. In accordance
with the Court's holding in Berkman, we, therefore, dismiss
defendant's appeal as interlocutory.
Dismissed.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
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