NO. COA02-444
Appeal by defendant from order filed 31 December 2001 by Judge
Jonathan L. Jones in Catawba County District Court. Heard in the
Court of Appeals 30 December 2002.
Sigmon, Sigmon, Isenhower & Poovey, by W. Gene Sigmon, for
plaintiff appellee.
Crowe & Davis, P.A., by H. Kent Crowe, for defendant
appellant.
GREENE, Judge.
Ronald Gene Johnson (Defendant) appeals from an order filed 31
December 2001 denying in part his motion to set aside a judgment
entered against him.
On 14 February 1998, Tammy Gabriel Johnson (Plaintiff) filed
a complaint against Defendant seeking, among other things,
equitable distribution of marital property. Defendant filed an
answer dated 5 February 1998. On 20 December 1999, following a
hearing on or about 7 July 1999, the trial court entered a judgment
finding the only marital assets were a mobile home and residential
lot and the amount of marital debts paid by Plaintiff exceededDefendant's interest. The trial court further found Defendant
suffered from a cocaine addiction and wasted marital income and
assets on illegal drugs. Based on these findings, the trial court
concluded a fifty-fifty distribution would be inequitable and
awarded Plaintiff the entire interest in the mobile home and
residential lot. On 3 May 2000, Defendant filed an amended answer
and on 6 October 2000, filed a motion to set aside judgment
alleging he was not properly served with notice of the date of
hearing and the trial court's judgment and was thus not present at
the hearing, resulting in an ex parte judgment. The trial court
denied the motion on 29 March 2001. Defendant gave notice of
appeal to this Court but failed to perfect the appeal.
On 6 June 2001, Defendant again moved to set aside the trial
court's 20 December 1999 judgment. This motion alleged certain
property denominated “marital property” by Plaintiff's equitable
distribution affidavit was, in fact, not marital property. In
support of his motion, Defendant made a showing the residential
lot, upon which the mobile home was located, was purchased before
the marriage and held by the parties as tenants in common. The
trial court subsequently entered a 31 December 2001 order allowing
in part and denying in part Defendant's motion. The trial court
set aside the portion of the 20 December 1999 judgment requiring
transfer of Defendant's interest in the residential lot but refused
to set aside the remainder of the equitable distribution judgment.
The trial court also provided the matter would be calendared for a
hearing to allow further testimony as to the amounts paid orcontributed by the respective parties to the purchase of the real
estate. After such a hearing, the trial court stated, it “w[ould]
impose an adequate remedy for the parties; giving each part credit
for the value of the party of realty, which is separate in
character.”
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The dispositive issue is whether the trial court's 31 December
2001 order affects a substantial right.
Although not raised by either party, we note the 31 December
2001 order is interlocutory.
See Blackwelder v. Dept. of Human
Resources, 60 N.C. App. 331, 334-35, 299 S.E.2d 777, 780 (1983) (a
trial court's order that does not finally determine the issues
presented, but instead directs some further proceeding, is not a
final judgment and is interlocutory). While generally not
immediately appealable, interlocutory orders may, however, be
immediately appealable under certain circumstances.
See N.C.G.S.
§§ 1-277, 1A-1, Rule 54(b), 7A-27(d) (2001).
This matter was not certified by the trial court pursuant to
Rule 54(b) as being immediately appealable.
See N.C.G.S. § 1A-1,
Rule 54(b). Therefore, the only basis upon which this appeal may
rest is that the judgment from which the parties appeal affects a
substantial right.
See N.C.G.S. §§ 1-277(a), 7A-27(d)(1) (2001).
Under sections 1-277(a) and 7A-27(d)(1), an otherwise interlocutory
judgment may be appealed upon a showing: (1) the judgment affects
a substantial right and (2) the deprivation of the right will
potentially work injury to the appellant if not corrected beforeappeal of the final judgment.
See Goldston v. American Motors
Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Appellate
Rule 28(b)(4), which was added by amendment effective 31 October
2001, requires a party appealing from an interlocutory order to
include a statement in its brief showing “the challenged order
affects a substantial right” absent immediate review by this Court.
N.C.R. App. P. 28(b)(4). Moreover,
this Court has stated:
It is not the duty of this Court to construct
arguments for or find support for appellant's
right to appeal from an interlocutory order;
instead, the appellant has the burden of
showing this Court that the order deprives the
appellant of a substantial right which would
be jeopardized absent a review prior to a
final determination on the merits.
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444
S.E.2d 252, 254 (1994). Failure to make such a showing subjects an
appeal to dismissal.
Id.
In this case, Defendant has failed to include in his brief to
this Court the requisite statement to show the 31 December 2001
order affects a substantial right pursuant to Appellate Rule
28(b)(4). Moreover, we discern no substantial right that will be
affected absent immediate appeal. The only injury Defendant will
suffer if he is not permitted immediate appellate review of the
issue presented is the necessity of additional proceedings before
the district court “to allow testimony and receive evidence as to
amounts paid or contributed by the respective parties” to the
purchase of the residential lot. It is well settled the avoidance
of a trial or an administrative hearing is not a substantial right
entitling a party to immediate appellate review.
See Blackwelder,60 N.C. App. at 335, 299 S.E.2d at 780.
Thus, the 31 December 2001 order does not deprive Defendant of
a substantial right. Accordingly, we must dismiss this appeal as
interlocutory.
Dismissed.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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