Daher v Daher, (04-310) 04/05/2005

Appeal by defendant from judgment entered 25 June 2003 by Judge William G. Jones in Mecklenburg County District Court. Heard in the Court of Appeals 17 January 2005.

Michelle D. Reingold; and KMZ Rosenman, by L. Stanley Brown, for plaintiff-appellee.

James, McElroy & Diehl, P.A., by Richard A. Elkins and Preston O. Odom, III, for defendant-appellant.

GEER, Judge.

    Defendant Caroline Desrosiers Daher appeals from a judgment of the district court denying her motion to rescind, set aside, or void a separation and property settlement agreement. Because this appeal is interlocutory and does not affect a substantial right, we dismiss the appeal.
    Plaintiff Mohammad Akram Daher and defendant were married on 9 August 1985 and had two children. One child is deceased, and the surviving child was born on 16 December 1991. On 13 December 1999, Mr. Daher filed a complaint (No. 99 CVD 18510) against Ms. Daher in which he sought child custody and an ex parte order for temporary custody. Ms. Daher filed her answer and counterclaims for childcustody and child support on 8 November 2000. She also filed a separate complaint (No. 00 CVD 17333) against Mr. Daher in which she sought post-separation support, alimony, attorneys' fees, equitable distribution, interim allocation of marital debts and assets, and rescission of a separation and property settlement agreement executed by both parties on 28 December 1999. On 17 January 2001, Mr. Daher filed an additional complaint (No. 01 CVD 1077) for absolute divorce. The trial court consolidated the three actions under case number 99 CVD 18510 by order entered 28 February 2001.
    The trial court entered a judgment of divorce on 25 April 2001 and an order for temporary child support on 10 July 2002. Between 31 March 2003 and 4 April 2003, the trial court conducted a trial of the parties' contentions regarding rescission of the parties' 28 December 1999 separation and property settlement agreement. In a judgment entered on 25 June 2003, the trial court denied Ms. Daher's request that it rescind, set aside, or void the agreement. After dismissing Ms. Daher's related claims for an award of post- separation support, permanent alimony, and counsel fees with prejudice, the trial court set the remaining equitable distribution claims of the parties to be heard at another term of court. Ms. Daher has appealed from the 25 June 2003 judgment.
    While Ms. Daher concedes in her statement of grounds for appellate review that the trial court's judgment is interlocutory, she asserts the judgment is immediately appealable because it affects a substantial right. She does not, however, specificallyidentify any substantial right that has been affected.
    We agree that the trial court's judgment is interlocutory since it "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." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). 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). An appeal from an interlocutory order is permissible only if: (1) the trial court has entered a Rule 54(b) certification, or (2) the order affects a substantial right that cannot be preserved in the absence of an immediate appeal. Embler v. Embler, 143 N.C. App. 162, 164-65, 545 S.E.2d 259, 261-262 (2001).
    Since there was no Rule 54(b) certification by the trial judge, defendant is entitled to appeal only upon a showing of a substantial right. This exception applies only if "the challenged order affects a substantial right that may be lost without immediate review." McConnell v. McConnell, 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002). We have been unable to identify any right that defendant would lose if required to wait to appeal until after a final judgment is entered _ and defendant has not pointed to any such right. Indeed, this Court has previously held that "[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. Because "[n]o substantial right of defendantwill be lost or prejudiced by delaying [her] appeal until the final judgment on [her] equitable distribution . . . claims," Garris v. Garris, 92 N.C. App. 467, 470, 374 S.E.2d 638, 640 (1988), we dismiss defendant's appeal as interlocutory.

    Dismissed.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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