LINDA BOX (DAVIDSON),
v. No. 03 CVD 15756
CHARLES F. BOX, SR., and
HIDDEN ROCK, LLC,
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene, for
No brief for plaintiff-appellee .
On 11 August 2004, plaintiff Linda Box (Davidson) and
defendant Charles F. Box, Sr. entered into a consent judgment for
equitable distribution, waiver of alimony, and waiver of attorney
On 15 December 2004, a motion and order to show cause was
filed requiring defendant to appear in court and show cause why he
should not be held in contempt for failure to comply with the
consent judgment. Specifically, defendant was required to  take
out an insurance policy and get proper documents to plaintiff
within 60 days of the order and get together [and] sign off for
2 deeds of trust for plaintiff. Defendant appeals.
The threshold issue to consider in this case is whether
defendant's appeal is premature, and therefore, not properly before
Defendant appeals from an order to show cause.
Wolfe v. Wolfe, 67 N.C. App. 752, 314 S.E.2d 132 (1984), this Court
explained that [a]n 'order to show cause is one that is made ex
parte,' meaning that it is granted at the instance and for the
benefit of one party only and without notice to the adversely
affected party. Id. at 753, 314 S.E.2d at 134 (quoting 56 Am.
Jur. 2d, Motions, Rules, and Orders §§ 33-34 (1971)). The court
further explained that since an ex parte is not a final order, it
is interlocutory and is not directly appealable. Id. at 753, 314
S.E.2d at 134 (citations omitted); see also, Huguelet v. Huguelet,
113 N.C. App. 533, 537, 439 S.E.2d 208, 210 (1994) (show cause
order is interlocutory and not immediately appealable).
As in Wolfe, defendant here appeals from an ex parte order to show cause. The record fails to disclose whether the show cause hearing took place, or whether the defendant was later found in contempt for violating the consent order. Defendant acknowledges that his appeal may likely be found to be interlocutory, however he contends that the order to show cause does affect a substantial right, and therefore is appealable. We do not agree. Accordingly, because there was no final judgment in this case, nor were there any substantial rights of the parties affected, we hold that this appeal is premature, and therefore, dismiss it as interlocutory.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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