An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-167


Filed: 7 February 2006


         v.                                McDowell Cou nty
                                        No. 04-CVD-177< br> JEREKA SHEA STAFFORD,
(through her legal guardian

    Appeal by defendant from order entered 2 August 2004 by Judge Dawn Skeratt in McDowell County District Court. Heard in the Court of Appeals 9 January 2006.

    No brief for plaintiff appellee.

    Taylor and Brown, P.A., by Lee F. Taylor, for defendant appellant.

    McCULLOUGH, Judge.

    On 5 March 2004 plaintiff filed a complaint in McDowell County District Court seeking custody of his minor child who was born in McDowell County on 29 July 2003. Defendant is the mother of the child. Without filing an answer, defendant filed a motion to dismiss for lack of subject matter jurisdiction on 6 May 2004 alleging that the appropriate forum for determination of the custody of the child is the State of West Virginia, where the child was residing at the time of the filing of the complaint.
    Judge Dawn Skeratt heard the motion on 8 July 2004 and rendered an order denying the motion to dismiss on 2 August 2004. She allowed defendant until 28 July 2004 to file an answer. She also established a temporary visitation schedule allowing plaintiff to visit the child one weekend per month, and scheduled the complaint for a hearing on the merits on 26 August 2004. From this order, defendant filed notice of appeal on 26 August 2004.
    The order from which the appeal is taken is not a final order as further action must be taken in the trial court. Defendant concedes in her appeal information statement that a final order has not been entered. She asserts in her brief that the order is appealable pursuant to N.C. Gen. Stat. § 50A-314 (2005). Defendant's reliance upon that statute is misplaced as it provides for an appeal “from a final order.” Id. Our Supreme Court has affirmed that an interlocutory order denying a motion to dismiss for lack of subject matter jurisdiction is not immediately appealable. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982). When a party has no right of immediate appeal, this Court on its own motion should dismiss the appeal. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). Defendant has not filed a petition for a writ of certiorari seeking immediate review. We, in our discretion, decline to treat the appeal as a petition for a writ of certiorari.
    The appeal is
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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