NO. COA03-277

NORTH CAROLINA COURT OF APPEALS

Filed: 2 March 2004

    Appeal by plaintiff from order dated 15 November 2002 by Judge Alma L. Hinton in District Court, Halifax County. Heard in the Court of Appeals 3 December 2003.

    Jeffery L. Jenkins for plaintiff-appellant.

    Janet B. Dudley for defendant-appellee.

    McGEE, Judge.

    Plaintiff appeals from an order suspending defendant's child support obligation as to Quan'Teika Whitaker (Quan'Teika), born 22 March 1993, and ordering defendant and Tryneisha Whitaker (Tryneisha), born 31 August 1997, to undergo genetic testing to determine Tryneisha's paternity. Both children were born during the term of the marriage of defendant and Sherry Whitaker.
    Defendant signed a Voluntary Support Agreement (Agreement)prepared by the Child Support Enforcement Agency of the Halifax County Department of Social Services (DSS) on 8 July 1998. The Agreement, which included an acknowledgment of paternity as to Quan'Teika and Tryneisha, was subsequently adopted by the trial court as an order. In the Agreement, defendant was required to pay child support for both Quan'Teika and Tryneisha in the amount of $178 per month, and to provide medical insurance for both children. Defendant has paid child support accordingly.
    DSS filed a motion in late 2001 seeking to modify the amount of defendant's child support obligation on the grounds that the order was more than three years old and the child support guidelines would result in an increase of more than fifteen percent in defendant's obligation. Defendant did not appear at the hearing on the motion and was not represented by counsel. The trial court allowed the motion by an order signed 12 February 2002 and defendant's child support obligation increased to $452 per month.
    Prior to the trial court's order granting the modification, defendant and Quan'Teika had genetic samples taken at Interim Health Care in Greenville, North Carolina. The results of the genetic test, dated 10 January 2002, indicated that defendant was not the biological father of Quan'Teika.
    Defendant filed a motion for relief from judgment on 12 July 2002, to which he attached a photocopy of the results of thegenetic testing. The motion, filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6), requested that the trial court vacate the 1998 child support order as to Quan'Teika, thereby allowing defendant to cease his child support obligation as to Quan'Teika. Defendant's motion made no request as to Tryneisha.
    Following a hearing on 15 November 2002, the trial court ordered that defendant's child support obligation as to Quan'Teika be "suspended" and directed that Tryneisha and defendant undergo genetic testing to determine Tryneisha's paternity. Plaintiff appeals.
    In its first assignment of error, plaintiff argues the trial court erred in suspending defendant's obligation to pay child support for Quan'Teika. Plaintiff asserts that there was no competent evidence before the trial court to support the trial court's finding and conclusion that defendant was not the father of Quan'Teika.
    We need not reach a conclusion on the merits for the issue on appeal is interlocutory. Orders are either interlocutory or final in nature. See N.C. Gen. Stat. § 1A-1, Rule 54(a) (2003). The prohibition on interlocutory appeals         "prevent[s] 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." Russell v. State Farm Ins. Co., 136 N.C. App.798, 800, 526 S.E.2d 494, 496 (2000) (citations omitted). An appellate court should dismiss sua sponte an appeal where no right of appeal exists regardless of whether the parties themselves raised the issue. First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 246, 507 S.E.2d 56, 59 (1998); Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980).
    "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." Little v. Stogner, 140 N.C. App. 380, 382, 536 S.E.2d 334, 336 (2000) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)), disc. review denied, 353 N.C. 377, 547 S.E.2d 813 (2001). Although, generally, there is no right of immediate appeal from an interlocutory order, there are two exceptions.
    The first exception is where a trial court has made a final determination as to one or more of the claims, but fewer than all claims, and the trial court determines that "there is no just reason [to] delay" an appeal. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003); Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999). However, in the case before us, the trial court did not certify its order under Rule 54(b) and thus, immediate review is foreclosed unless the order qualifies under the secondexception.
    The second exception to the bar on interlocutory appeals renders an order immediately appealable under "N.C. Gen. Stat. § § 1-277(a) and 7A-27(d)(1) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Little, 140 N.C. App. at 382, 536 S.E.2d at 336.
        The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. See Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Whether a substantial right is affected is determined on a case-by-case basis and should be strictly construed. See Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982); Buchanan v. Rose, 59 N.C. App. 351, 352, 296 S.E.2d 508, 509 (1982).

Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). It is the appellant's burden to present an argument
        to show this Court that [it] had the right to appeal the [trial court's] order. . . . 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, 136 N.C. App. at 802, 526 S.E.2d at 497 (quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d252, 254 (1994)). Furthermore, N.C.R. App. P. 28(b)(4) mandates that where an appeal is interlocutory, the statement of the grounds for appellate review "must contain sufficient facts and argument to support appellate review on the ground that the order affects a substantial right." Plaintiff has not acknowledged the interlocutory nature of this appeal, and thus has presented no such argument.
    The trial court in this case merely "suspended" defendant's child support obligation. Black's Law Dictionary 1460 (7^th ed. 1999) defines "suspend" as "to interrupt; postpone; defer" or "to temporarily keep from performing a function." There is an absence of finality to the trial court's order in this case and thus, plaintiff appeals from an order that is interlocutory. The ultimate resolution of defendant's support obligation remains undetermined. We conclude that there is no substantial right implicated that will be lost or irreparably adversely affected if we fail to address the merits of the trial court's order. In addition, plaintiff failed to address the interlocutory nature of this appeal in violation of N.C.R. App. P. 28(b)(4). We, therefore, dismiss plaintiff's assignment of error number one as interlocutory.
    Plaintiff asserts in its second assignment of error that the trial court erred in ordering, on its own motion, genetic testing to determine the paternity of Tryneisha. Plaintiff admits in itsstatement of the grounds for appellate review and in its partial compliance with N.C.R. App. P. 28(b)(4), that the trial court's order is interlocutory. However, plaintiff contends, without argument, that "various substantial rights" of the mother, Tryneisha, and plaintiff are affected and thus appellate review is appropriate.
    Generally, until an order of paternity has been set aside, it is deemed res judicata and a bar to challenging paternity. See State of N.C. ex rel. Bright v. Flaskrud, 148 N.C. App. 710, 712, 559 S.E.2d 286, 288 (2002). Nonetheless, "a court order requiring parties and their minor child to submit to blood grouping testing does not affect a substantial right and is, therefore, interlocutory and not appealable." State ex rel. Hill v. Manning, 110 N.C. App. 770, 772, 431 S.E.2d 207, 208 (1993); see also Guilford County ex rel. Gardner v. Davis, 123 N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996); Heavner v. Heavner, 73 N.C. App. 331, 333, 326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985). We therefore conclude that the issue is not properly before this Court and we dismiss as interlocutory plaintiff's appeal as to assignment of error number two.
    Dismissed.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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