Wilson v Ventriglia, 156 NC App 700 (02-216) 03/18/2003

Appeal by defendant from orders entered 27 September 2001 by Judge Shelly S. Holt, 2 October 2001 by Judge Russell G. Sherrill, and 1 October 2001 by Judge John W. Smith, New Hanover County District Court. Heard in the Court of Appeals 27 January 2003.

Ralph S. Pennington for plaintiff-appellee.

Thomas S. Hicks, and Reid, Lewis, Deese, Nance, and Person, by Renny W. Deese, for defendant-appellant.

    ELMORE, Judge.

    Plaintiff wife asserted a complaint against her husband, the defendant, for divorce from bed and board, child custody, child support, and sequestration of the marital home. Defendant counterclaimed for divorce from bed and board, child custody, and child support. The parties agreed under oath to an oral consent order on permanent custody of the children, child support, and sequestration of the marital property on 1 January 2001 before Judge Shelly S. Holt. The agreement was reduced to a typed order which Judge Holt signed on 30 March 2001. The issue of childsupport was not settled by the order, rather it was placed on “inactive status (but not dismissed)” to be dealt with after determination of equitable distribution.
    Relevant to this appeal, the defendant filed a motion for reconsideration which was denied in an order signed by Judge Holt on 27 September 2001. The court also denied defendant's Motion to Recuse and Disqualify Judge Holt in an order signed by Judge John W. Smith. In a separate order by Judge Russell G. Sherrill, the court issued a temporary injunction for the termination of one of the telephone numbers belonging to the parties.
    On appeal, the defendant assigns error to the Consent Order on Permanent Child Custody, Child Support, and Sequestration of Real Property (hereafter “consent order”), the denial of his Motion to Vacate the judgment, the denial of his Motion for Reconsideration based on alleged judicial misconduct, the Motion to Recuse and Disqualify the local judges, and the Order on Phone Number which discontinued one of the marital telephones. The child support issue is as of yet undetermined pending resolution of the equitable distribution. While those issues remain unresolved, this appeal is interlocutory.
    An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy. Generally, there is no right to appeal from an interlocutory order. Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). See generally,Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381-82, reh'g denied, 732 N.C. 744, 59 S.E.2d 429 (1950). An immediate appeal from an interlocutory order will only lie where (1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to North Carolina Rule of Civil Procedure 54(b), or (2) when the challenged order affects a substantial right that may be lost without immediate review. N.C. Gen. Stat. § 1-277(a) (2001); McConnell v. McConnell, 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002).
    In the case at bar, the trial judge made no certification in the judgment that pursuant to Rule 54(b) there was no just reason for delay. We therefore turn to an analysis of whether a substantial right is affected which would justify this appeal under section 1-277(a) of the General Statutes. Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001); McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). Our courts have generally taken a restrictive view of the substantial right exception to the general rule that interlocutory appeals are forbidden. Embler, 143 N.C. App. at 166, 545 S.E.2d at 262; Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 334, 299 S.E.2d 777, 780 (1983). A substantial right is one which will clearly be lost or irreparably adversely affected if the order is not reviewable before final judgment. McConnell, 151N.C. App. at 625, 566 S.E.2d at 804; Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000).
    In this case, the defendant does not contest the physical custody arrangement of the children, nor are the children at risk of physical or other harm. The rights which are at stake in this appeal are the defendant's access to a certain telephone number and his freedom to call his children on the phone when they are not in his custody. Under the present agreement the children are in the defendant's custody every other weekend, with the son also in the defendant's custody for Monday night of the off week and the daughter in defendant's custody on Tuesday afternoon of the off week. The children are free to phone the non-custodial parent at any time. The defendant contends that the written order did not have his unqualified consent because of differences in language in the provision concerning phone calls. No other stipulations in the order are contested by the defendant in this appeal.
    Defendant also appeals based on the denial of his Motion to Recuse “All Local Judges” and the absence of an evidentiary hearing thus concerning.
    As to the last order appealed from, the telephone which was the object of the Order on Phone Number was the household phone at the marital residence. Plaintiff was awarded possession of the residence and defendant was awarded possession of another marital residence on Figure Eight Island. The parties negotiated an agreement whereby the phone number would not be used by either party but a forwarding message would be placed on it directingcallers to the parties new number. This forwarding arrangement expired after 180 days, at which time the defendant obtained the number for his sole use. Calls continue to be made to the number for both parties, and plaintiff complained that she did not receive important messages. The Court found that this matter related to the custody of the children and that the number should be discontinued.
    The burden of establishing that a substantial right is affected is on the appellant, here the defendant. Embler, 143 N.C. App. at 166, 545 S.E.2d at 262; Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Defendant has not argued, even in his reply brief, that his appeal implicates a substantial right. We likewise find that these issues do not implicate a substantial right that will clearly be lost or irreparably adversely affected if this order is not reviewed before final judgment. We therefore dismiss this appeal as interlocutory.
    Appeal dismissed.
    Chief Judge EAGLES and Judge McCULLOUGH concur.
    Report per Rule 30(e).