Marvin v Marvin, (04-26) 06/15/2004

Appeal by plaintiff from order entered 8 October 2003 by Judge William Leavell in the District Court in Watauga County. Heard in the Court of Appeals 7 June 2004.

Hedrick & Eggers, by Kimberly M. Eggers; and Eggers, Eggers, Eggers & Eggers, by Stacy C. Eggers, IV, for plaintiff- appellant.

Gail P. Fannon, for defendant-appellees.

HUDSON, Judge.

    Plaintiff-mother Kerry M. Marvin and defendant-father Joseph William Marvin were married on 20 December 1997 and divorced on 13 August 2002. Pursuant to a separation agreement, plaintiff-mother was given primary physical custody of the parties' minor child, subject to visitation by defendant-father. On 12 March 2002, plaintiff filed a complaint and motion for an ex parte order seeking temporary custody of the minor child. Plaintiff alleged that defendant-father had enlisted in the military in January of 2002 and had left the State of North Carolina. Plaintiff-motherfurther alleged that she had an offer for employment in another state and wished to relocate. That same day, the trial court granted plaintiff-mother temporary custody pending further orders of the court, and noticed a hearing on plaintiff-mother's motion for 18 March 2002. The parents of defendant-father, who lived in North Carolina, moved to intervene “to act on behalf of the Defendant[.]”
    On 13 August 2002, the trial court entered a temporary consent order allowing the motion to intervene and giving defendant-father and his parents (collectively “defendants”) visitation with the minor child from 1 October 2002 to 18 October 2002. Plaintiff- mother and defendants subsequently entered into a handwritten consent “Memorandum of Judgment/Order” which was formalized in an order entered on 9 December 2002. The consent order provided that plaintiff-mother and defendants have joint legal custody and a liberal visitation schedule.
    On 13 June 2003, defendants filed a motion seeking to modify the consent order. Defendants asked either that they be granted primary physical custody of the minor child or that defendants' visits be extended because defendant-father had been transferred to Hawaii. Plaintiff-mother filed a motion to dismiss defendants' motion based on lack of subject matter jurisdiction. After a hearing, the trial court concluded that it retained jurisdiction of the child custody matter and denied the motion to dismiss. Plaintiff-mother appeals.
    We must first determine whether this appeal from the orderdenying plaintiff's motion to dismiss and retaining jurisdiction is immediately appealable. “An order or judgment 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 entire controversy.” N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). The rule against interlocutory appeals seeks to prevent fragmentary, premature and unnecessary appeals by allowing the trial court to bring a case to final judgment before its presentation to the appellate courts. Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978). The order from which plaintiff-mother now appeals merely continues the action in the trial court for further litigation and is therefore interlocutory. See Country Club of Johnston County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. App. 159, 161-63, 519 S.E.2d 540, 542-44 (1999), review denied, 351 N.C. 352, 542 S.E.2d 207 (2000) (holding that a motion under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction is interlocutory and not immediately appealable).
    First, we note that plaintiff has not complied with appellate Rule 28(b)(4) which requires that appellant's brief contain a “statement of grounds for appellate review.” When an appeal is interlocutory, “the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” N.C. R. App. P. 28(b)(4). Appellant's brief contains no such statement, and issubject to dismissal on this basis alone. However, in our discretion, we review whether she has such grounds.
    In general, there is no right to appeal from an interlocutory order. See, e.g., Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994); however, a party may appeal an interlocutory order in two instances. First, pursuant to N.C. Gen. Stat. § 1-277 and N.C. Gen. Stat. § 7A-27(d), an interlocutory order is appealable “where delaying the appeal will irreparably impair a substantial right of the party.” Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999) (internal quotation marks omitted). Second, pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an interlocutory order is appealable “where the order represents a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal.” Id. (internal quotation marks omitted).
    Here, the trial court did not certify that there is no just reason to delay the appeal. Thus, an immediate appeal from the interlocutory order here is proper if delay would irreparably impair a substantial right of plaintiff-mother. Although plaintiff-mother asserts that she has appealed pursuant to § 7A-27, she has not mentioned or argued in her brief that she risked loss of a substantial right absent immediate appeal. The party desiring an immediate appeal of an interlocutory order bears the burden of showing that such appeal is necessary to prevent loss of a substantial right. See Jeffreys, 115 N.C. App. at 380, 444 S.E.2dat 254. In Jeffreys, this Court dismissed an interlocutory appeal when the appellant “presented neither argument nor citation to show this Court that [it] had the right to appeal the [interlocutory order]. Id. “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[.]” Id. We conclude that plaintiff has not met her burden.
    Plaintiff-mother also asserts that her appeal is properly before this Court pursuant to N.C. Gen. Stat. § 1-72.1(e). Section 1-72.1(e), however, deals with interlocutory appeals from orders ruling on a motion regarding a person's right of access to a civil judicial proceeding or to a judicial record. See N.C. Gen. Stat. § 1-72.1(a) and (e) (2003). The order from which plaintiff-mother appeals from is a denial of a motion to dismiss and section 1- 72.1(e) is not applicable. Plaintiff-mother has not shown this Court that she has a right to an immediate appeal from the interlocutory order.
    Dismissed.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***