I.
At the outset, we note that plaintiff appeals from an order
that dismissed her claim for post-separation support, granted child
support, and denied attorneys' fees, while not addressing or
resolving her claims for alimony or equitable distribution. The
order also does not address or resolve a counterclaim for divorce
from bed and board. The order itself states that [t]his cause is
retained for entry of further Orders.
Although not raised by the parties, we are obliged first to
consider
sua sponte whether defendant's appeal is properly before
this Court.
See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131
N.C. App. 242, 246, 507 S.E.2d 56, 59 (1998).
An order is either interlocutory or the
final determination of the rights of the
parties. N.C.G.S. § 1A-1, Rule 54(a) (2001).
A final judgment disposes of the cause as to
all the parties, leaving nothing to be
judicially determined between them in the
trial court[,] while an interlocutory order
does not dispose of the case, but leaves it
for further action by the trial court in orderto settle and determine the entire
controversy.
Veazey v. Durham, 231 N.C. 357,
361-362, 57 S.E.2d 377, 381 (1950).
Evans v. Evans, ___ N.C. App. ___, ___, 581 S.E.2d 464, 465 (2003).
Based on the record before us, the present appeal is taken
from an interlocutory order, as it does not resolve all claims in
the action.
See generally, Embler v. Embler, 143 N.C. App. 162,
545 S.E.2d 259 (2001).
In general, there is no right to immediate
appeal from an interlocutory order.
Flitt v.
Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511,
513 (2002); N.C.G.S. § 1A-1, Rule 54(b)
(2001). This rule is grounded in sound policy
considerations. Its goal is to 'prevent
fragmentary and premature appeals that
unnecessarily delay the administration of
justice and to ensure that the trial divisions
fully and finally dispose of the case before
an appeal can be heard.'
Embler, [143 N.C.
App. at 165, 545 S.E.2d at 262] (quoting
Bailey v. Gooding, 301 N.C. 205, 209, 270
S.E.2d 431, 434 (1980)).
Evans, ___ N.C. App. at ___, 581 S.E.2d at 465.
The inquiry does not end here. There are two instances where
a party may appeal from an interlocutory order. The first instance
arises when there has been a final determination as to one or more
of the claims, and the trial court certifies that there is no just
reason to delay the appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule
54(b) (2001).
See Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513.
The other avenue of appeal is where the trial court's decision
deprives the appellant of a substantial right which would be lost
absent immediate review.
Id.;
see N.C. Gen. Stat. §§ 1-277(a) and
7A-27(d)(1) (2001). The moving party must show that the affectedright is a substantial one, and that deprivation of that right, if
not corrected before appeal from final judgment, will potentially
injure the moving party. Whether a substantial right is affected
is determined on a case-by-case basis and should be strictly
construed.
Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513
(citations omitted). A substantial right is 'one which will
clearly be lost or irremediably adversely affected if the order is
not reviewable before final judgment.'
Turner v. Norfolk S.
Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (quoting
Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299
S.E.2d 777, 780 (1983)).
In the present case, the order deals with fewer than all of
the claims in the action, but the trial court made no express
finding that there is no just reason for delay in accordance with
Rule 54(b). Thus, we must determine whether the order appealed
from affects a substantial right under N.C. Gen. Stat. §§ 1-277 &
7A-27(d). Our courts generally have taken a restrictive view of
the substantial right exception.
See Embler, 143 N.C. App. at 166,
545 S.E.2d at 262 (2001).
Plaintiff did not address the issue of its right to appeal the
order at this time nor argue that its appeal implicates a
substantial right. '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. . . .'
Russell v. State Farm Ins. Co., 136N.C. App. 798, 802, 526 S.E.2d 494, 497 (2000) (quoting
Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252,
254 (1994));
see also N.C.R. App. P. 28(b)(4) (2003). While this
is so, upon consideration of this case, we do not discern that
plaintiff's appeal implicates a substantial right.
We note that this Court has held that a post-separation
support order is a temporary measure, and as such it is
interlocutory and not generally subject to immediate appeal.
Rowe
v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319 (1998);
Wells
v. Wells, 132 N.C. App. 401, 410, 512 S.E.2d 468, 474,
disc. review
denied, 350 N.C. 599, 537 S.E.2d 495 (1999). Further,
[i]nterlocutory appeals that challenge only the financial
repercussions of a separation or divorce generally have not been
held to affect a substantial right.
Embler, 143 N.C. App. at 166,
545 S.E.2d at 262. It is clear that the order as to post-
separation support does not affect a substantial right and this
appeal is dismissed as to that claim. The same is true for the
ruling denying plaintiff's motion for attorneys' fees under N.C.
Gen. Stat. § 50-16.4 (2001).
Further, we note that this Court discussed post-separation
support at length in
Wells.
Wells, 132 N.C. App. at 409-15, 512
S.E.2d at 473-76. Notably in this discussion, this Court discussed
the precedential effect of a hearing on post-separation support:
[C]hanges in circumstance occurring between
issuance of a [post-separation support] order
and the permanent alimony hearing may well
affect dependency status as well as other
material issues . . . thereby mitigatingagainst the conclusion that entitlement
findings by the trial court during a PSS
hearing are final and binding at subsequent
proceedings.
Id. at 412, 512 S.E.2d at 475 (citation omitted). To treat PSS
otherwise would deter many dependent spouses from seeking needed
support for fear they would be bound by a ruling based on
incomplete evidence.
Id. at 414, 512 S.E.2d at 475. Post-
separation support can be appealed along with the alimony award,
and retroactively awarded if the original order was in error.
Therefore plaintiff can show no substantial right or that any
irreparable damage by not being able to immediately appeal this
order.
As to the order for child support, we again find that no
substantial right is affected. As mentioned above, financial
repercussions of divorce matters have not been held to affect a
substantial right.
See Embler, 143 N.C. App. at 166, 545 S.E.2d at
262. While these cases have not addressed a child support order
specifically, we believe that, in this case, the order is not
appealable. There is no evidence of record showing that the
children for whom these payments are made will be in dire need
because of the amount awarded.
See, e.g., McConnell v. McConnell,
151 N.C. App. 622, 566 S.E.2d 801 (2002) (holding that an
interlocutory child custody order was immediately appealable and
did affect a substantial right based on the fact that the child's
physical well being was in impending danger from a direct threat of
sexual molestation if the custody order was not addressed). Theevidence reveals that the wife, the appealing party, was awarded
child support, is in control of all the marital assets, is allowing
a tenant in a rental home to live rent free rather than collecting
$300 a month, and that the husband is currently unemployed. We
find no reason that a delay of this appeal will jeopardize a
substantial right of plaintiff's, causing an injury that might be
averted if appeal was allowed.
If an appealing party has no right of appeal, an appellate
court on its own motion should dismiss the appeal even though the
question of appealability has not been raised by the parties
themselves.
Waters v. Personnel, Inc., 294 N.C. 200, 201, 240
S.E.2d 338, 340 (1978) (footnote omitted). Having concluded that
plaintiff has appealed from an interlocutory order and no
substantial right being affected, we therefore dismiss this appeal.
Dismissed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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