Fakhoury v Fakhoury, (04-1514) 08/02/2005

Appeal by defendant and plaintiff from order entered 21 April 2004 by Judge Paul Gessner in Wake County District Court. Heard in the Court of Appeals 18 July 2005.

Bender Law Offices, P.C., by Nathan J. Lashley, for plaintiff-appellee and plaintiff-cross-appellant.

Herring McBennett Mills & Finkelstein, PLLC, by Bobby D. Mills and Anna E. Worley, for defendant-appellant and defendant-cross-appellee.

MARTIN, Chief Judge.

    Plaintiff Kimberly Fakhoury and defendant Karem Fakhoury married in April 2000 and separated in November 2002 with two minor children. Prior to their marriage, plaintiff and defendant signed a pre-marital agreement in which they waived alimony and agreed to a determination of the parties' claims for equitable distribution by arbitration. In 2002, plaintiff brought an action seeking child custody, child support, attorney's fees and equitable distribution. Defendant answered and counterclaimed for child custody, child support, attorney's fees and equitable distribution. The partiesentered into a consent order for their equitable distribution claims to be resolved by arbitration as per the parties' pre- marital agreement. The arbitrator entered an arbitration decision on 16 January 2004 and Judge Paul Gessner entered an order which confirmed the arbitration decision on 21 April 2004. From that order, plaintiff and defendant appeal.
    The dispositive issue is whether this appeal is premature. 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 parties involved in the controversy. See Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Generally, there is no right to immediate appeal from an interlocutory order. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2004); Veazey, 231 N.C. at 362, 57 S.E.2d at 381. In the instant case, the trial court's order did not resolve the parties' claims for child custody, child support and attorney's fees. We conclude that the order from which plaintiff and defendant appeal was interlocutory.
    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, 261-62 (2001). While the trial court's order constitutes a final adjudication of the equitable distribution issue, the trial court did not certify the order pursuant to Rule 54(b), and thus we must determine whether theorder appealed from affects a substantial right. “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) (citation omitted). We have been unable to identify any right that the parties' would lose if required to wait to appeal until after a final judgment is entered and neither plaintiff nor defendant has pointed to any such right. Furthermore, 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. See also Dixon v. Dixon, 62 N.C. App. 744, 303 S.E.2d 606 (1983) (holding an order requiring one spouse to return property to the marital home pending resolution of equitable distribution and divorce actions not immediately appealable). Because no substantial right of the parties will be lost or prejudiced by delaying appeal until after final judgment is entered, we dismiss plaintiff's and defendant's appeal as interlocutory.
    Dismissed.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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