Appeal by plaintiff from order entered 27 June 2000 by Judge
Victoria L. Roemer in Forsyth County District Court. Appeal by
plaintiff and defendant from order entered 31 July 2001 and
judgment entered 3 December 2004 by Judge Chester C. Davis in
Forsyth County District Court. Heard in the Court of Appeals 15
November 2005.
Michelle D. Reingold for plaintiff.
BELL, DAVIS & PITT, P.A., by Robin J. Stinson, and GATTO LAW
OFFICES, by Joseph J. Gatto, for defendant.
JOHN, Judge.
Steve McIntyre (“plaintiff”) appeals the trial court's 27 June
2000 order denying his motion for partial summary judgment on the
equitable distribution claim of Vicki McIntyre (“defendant”).
Plaintiff and defendant appeal the trial court's 31 July 2001 order
(“the Order”) allowing the equitable distribution trial to proceed,
as well as the court's 3 December 2004 judgment (“the Judgment”)
awarding the parties certain separate and marital property. For
the reasons discussed herein, we are compelled to dismiss theappeal.
Pertinent factual and procedural background information
includes the following: Plaintiff and defendant married 17 July
1986 in Lexington, North Carolina. Following a 22 December 1999
separation, they were divorced 28 January 2002. Plaintiff
initiated the instant action by filing a 24 August 1999 complaint
seeking divorce from bed and board and division of the parties'
separate and marital property. Defendant responded with a 25
October 1999 answer and counterclaim, requesting, inter alia,
equitable distribution of the parties' property as well as
provision of post-separation support and permanent alimony
commensurate with defendant's needs. In his reply filed 4 November
1999, plaintiff countered that an attached document entitled
“Prenuptial Agreement” (“the Agreement”) barred defendant's
“martial rights in the real estate and personal property of []
plaintiff and particularly with regard to claims for alimony and
equitable distribution . . . .”
The Agreement, signed by both parties and dated 17 July 1986,
provides as follows:
THAT WHEREAS, said parties have agreed to be
married, each to the other; and WHEREAS said
parties each own property; and WHEREAS said
parties, deeming the same to be just and fair
to the other party, have mutually agreed as
herein set out:
NOW, THEREFORE, in consideration of said
contemplated marriage and of the covenants
hereby entered into, the parties mutually
agree as follows:
FIRST: STEVE A. McINTYRE hereby releases,
renounces and forever quitclaims to VICKIE[sic] GAIL TRUELL all right, title, interest,
claim and demand whatsoever including all
marital rights in the real estate and personal
property of VICKIE [sic] GAIL TRUELL and
agrees that VICKIE [sic] GAIL TRUELL may at
all times hereafter purchase, acquire, own[,]
hold, possess, encumber, dispose of and convey
any and all kinds and classes of property,
both real and personal, as though still
unmarried and without the consent, joinder or
interference of the party of STEVE A.
McINTYRE.
SECOND: VICKIE [sic] GAIL TRUELL hereby
releases, renounces and forever quitclaims to
STEVE A. McINTYRE all right, title, interest,
claim and demand whatsoever including all
marital rights in the real estate and personal
property of STEVE A. McINTYRE and agrees that
STEVE A. McINTYRE may at all times hereafter
purchase, acquire, own, hold, possess,
encumber, dispose of and convey any and all
kinds of classes of property, both real and
personal, as though still unmarried and
without the consent, joinder or interference
of VICKIE [sic] GAIL TRUELL.
Citing the Agreement, plaintiff moved for partial summary
judgment, contending no genuine issue of material fact remained
regarding defendant's claim for equitable distribution. In an
order entered 27 June 2000, Judge Victoria L. Roemer denied
plaintiff's motion. On 24 April 2001, Judge Laurie L. Hutchens
allowed defendant's motion to amend her answer and counterclaim to
allege duress and undue influence, fraud and misrepresentation,
unconscionability and inadequate disclosure, and unenforceability
in relation to the Agreement.
Judge Chester C. Davis conducted a hearing on 6 July 2001,
following which he entered the Order. Judge Davis found as fact
therein that the Agreement did not prohibit defendant's claims to
marital property, and further that because the terms of the Agreement distinguish the
property that the parties owned at the time of
their marriage rather than property acquired
after their marriage . . . the [Agreement]
simply provided that [plaintiff] and
[defendant] were “free traders.”
Based in part upon the foregoing findings, Judge Davis
concluded as a matter of law that defendant was not “influenced,
coerced or under duress” when she signed the Agreement and that the
document did not “determine the property interest of the parties as
to property acquired following their marriage on July 17, 1986.”
Ultimately, Judge Davis ruled defendant's equitable distribution
claim was not barred by the Agreement and could proceed to a trial
on the merits “as to all property acquired following the parties'
marriage . . . without prejudice to either party's right to argue
classification and distribution issues pursuant to N.C.G.S. § 50-
20 . . . .”
The case proceeded to trial in April 2004. Following 20
April, 17 May, 18 May, and 21 June 2004 hearings, Judge Davis
determined an equal distribution of the parties' property was “both
just and fair.” On 3 December 2004, Judge Davis entered the
Judgment, finding as fact he
ha[d] previously ruled . . . that the real
estate and personal property stated in the
document referred to as the “Prenuptial
Agreement” applied to the property in
existence as of the date of the parties[']
marriage, and therefore Equitable Distribution
could continue with respect to property
acquired after the parties' marriage.
After classifying and valuing the parties' assets, Judge Davis
awarded certain property to each party and ordered defendant to payplaintiff $25,478.16 within thirty days.
Plaintiff appeals Judge Roemer's 27 June 2000 order, and both
parties appeal the Order and the Judgment of Judge Davis.
Plaintiff contends the trial court erred by: (i) determining
the Agreement was a “free trader” agreement which did not bar
defendant's claim for equitable distribution; and (ii) considering
a Douglas Form book in its determination. Defendant contends the
trial court erred by: (i) declining to set aside the Agreement
entirely due to duress and undue influence on the part of
plaintiff; (ii) failing to consider the effects of appreciation and
improvements to the parties' property during marriage; and (iii)
distributing the parties' property equally. However, we are unable
to reach the merits of the parties' contentions because the appeal
is interlocutory.
In the case
sub judice, the parties appeal various trial court
rulings which resolve the issue of equitable distribution but leave
open the related issue of alimony. Judicial orders are “either
'interlocutory or the final determination of all rights of the
parties.'”
Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d
259, 261 (2001) (quoting N.C. Gen. Stat. § 1A-1, Rule 54(a)).
A final judgment is one which disposes of the
cause as to all the parties, leaving nothing
to be judicially determined between them in
the trial court. 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.
Veazey v. Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950)
(citations omitted).
While a final judgment is always appealable, an interlocutory
order may be appealed immediately only if (i) the trial court
certifies the case for immediate appeal pursuant to N.C.G.S. § 1A-
1, Rule 54(b), or (ii) the order “affects a substantial right of
the appellant that would be lost without immediate review.”
Embler, 143 N.C. App. at 165, 545 S.E.2d at 261. “This rule is
grounded in sound policy considerations[,]”
id., including the
prevention of “fragmentary and premature appeals that unnecessarily
delay the administration of justice” and the assurance that “the
trial divisions fully and finally dispose of the case before an
appeal can be heard,”
Bailey v. Gooding, 301 N.C. 205, 209, 270
S.E.2d 431, 434 (1980) (citations omitted).
Both plaintiff and defendant concede the “outstanding alimony
claim . . . remains to be heard in this case[,]” and thus do not
contest the interlocutory nature of their appeal. Without
question, moreover, neither the Order nor the Judgment contains
certification by the trial court for immediate appeal pursuant to
N.C.G.S. § 1A-1, Rule 54. Nonetheless, the parties in effect lay
claim to the “substantial right” exception by maintaining appeal
has been taken herein “in the interest of judicial economy.” They
request
that this Court determine whether or not the
equitable distribution orders are proper prior
to the alimony hearing in order for the trial
court in the alimony hearing to accurately
consider the parties' financial standing in
the event that alimony is awarded.
The parties further assert that
[b]y completing the equitable distribution
portion of the case, the parties avoid the
time and expense of trying an alimony case,
only to retry the issue of alimony in the
event that this Court reverses and/or vacates
the equitable distribution orders.
Unfortunately for the parties, these arguments, while perhaps
persuasive at first blush, have previously been resolved against
them by this Court.
“Whether an interlocutory appeal affects a substantial right
is determined on a case by case basis.”
Embler, 143 N.C. App. at
166, 545 S.E.2d at 262 (citation omitted). “Our courts generally
have taken a restrictive view of the substantial right
exception[,]”
id. (citation omitted), requiring the appellant to
“establish that a substantial right will be affected unless he is
allowed immediate appeal” and rejecting for review those
“[i]nterlocutory appeals that challenge only the financial
repercussions of a separation or divorce . . . .”
Id.;
see also
Stafford v. Stafford, 133 N.C. App. 163, 164, 515 S.E.2d 43, 44
(appeal seeking immediate review of date of separation used by
trial court in absolute divorce judgment held not to affect a
substantial right where date relevant only to equitable
distribution claim),
aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785
(1999);
Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319
(1998) (order of post-separation support not immediately
appealable);
Hunter v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d
244, 245-46 (1997) (interim equitable distribution order not
immediately appealable);
Dixon v. Dixon, 62 N.C. App. 744, 745, 303S.E.2d 606, 607 (1983) (order requiring return of property to
marital home pending disposition of equitable distribution and
divorce actions not immediately appealable);
Stephenson v.
Stephenson, 55 N.C. App. 250, 251, 285 S.E.2d 281, 281-82 (1981)
(monetary
pendente lite orders not immediately appealable).
In
Embler, this Court held the trial court's equitable
distribution order “that explicitly left open the related issue of
alimony” was interlocutory and neither affected a substantial right
nor presented the potential for inconsistent verdicts. 143 N.C.
App. at 167, 545 S.E.2d at 262-63. Although the Order and the
Judgment herein do not “explicitly” leave open the issue of
alimony, we perceive no distinction between the circumstances of
the case
sub judice and those in
Embler.
In seeking immediate appeal, the parties maintain they will
avoid retrial of “the issue of alimony in the event that this Court
reverses and/or vacates the equitable distribution orders”
following a timely-filed appeal. As in
Embler, however, there
appears to be no danger of inconsistent verdicts were we to remand
this case to the trial court. Further, this Court has consistently
stated that “'avoidance of a rehearing or trial is not a
“substantial right” entitling a party to an immediate appeal.'”
Banner v. Hatcher, 124 N.C. App. 439, 442, 477 S.E.2d 249, 251
(1996) (quoting
Blackwelder v. Dept. of Human Resources, 60 N.C.
App. 331, 335, 299 S.E.2d 777, 780 (1983)). Regarding the parties'
contention that “the interest of judicial economy” compels
immediate review so as to avoid any delay caused by the potentialfor retrial of the alimony action, we note the admonition of this
Court approximately twenty-six years ago that
the matter could have been heard on its merits
and a final order entered by the District
Court . . . months before the appeal reached
this court for disposition. . . . The
avoidance of deprivation due to delay is one
of the purposes for the rule that
interlocutory orders are not immediately
appealable.
Stephenson, 55 N.C. App. at 251, 285 S.E.2d at 282
.
In short, because the parties have failed to distinguish
Embler or to meet their burden of identifying a substantial right
which would be affected were we to decline review of the instant
appeal,
see Flitt v. Flitt,
149 N.C. App. 475, 477, 561 S.E.2d 511,
513 (2002) (“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”), the appeal must be dismissed as
interlocutory. Whatever might be the personal inclination of one
or more members of this panel, we are bound by
Embler and the other
authorities cited herein.
See In the Matter of Appeal from Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a
panel of the Court of Appeals has decided the same issue, albeit in
a different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher court.”).
The recourse of the parties and others similarly situated is to our
Supreme Court or to the General Assembly.
Appeal Dismissed.
Judges WYNN and STEELMAN concur.
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