No. 06 CVD 3928
Susan V. Thomas for Plaintiff-Appellee.
Andresen & Associates, by Kenneth P. Andresen, for Defendant- Appellant.
Plaintiff and Defendant were married on or about 24 March 1979 and separated on or about 1 September 2004. On 22 February 2006, Plaintiff filed a Complaint for Absolute Divorce from Defendant. On 6 April 2006, Defendant answered the complaint, moved for postseparation support, and counterclaimed for alimony, equitable distribution of the couple's assets, and attorney's fees. Defendant's motion for postseparation support came on for hearing on 27 June 2006 in Mecklenburg County District Court before the Honorable Nathaniel P. Proctor. After the hearing, in an order filed 24 July 2006, Judge Proctor denied Defendant's motion forpostseparation support. Defendant appeals. Because Defendant's appeal is from an interlocutory order that does not affect a substantial right, we dismiss her appeal.
A judicial order is either 'interlocutory or the final determination of the 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)). In Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted), our Supreme Court stated that:
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.
An interlocutory order may be immediately appealed if it 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 (citations omitted).
Postseparation support is only intended to be temporary and ceases when an award of alimony is either allowed or denied by the trial court. Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319 (1998). Because of the temporary nature of postseparation support, requesting immediate appellate review of an order that determines only postseparation support, while leaving alimony to be determined, is discouraged since it is likely that the trial court would make a final determination on alimony before this Court couldrender an opinion pursuant to an appeal from a postseparation support order. Id. Generally, a postseparation support order . . . is interlocutory, it does not affect a substantial right, and it is not appealable. Id.
In this case, the order from which Defendant appeals is interlocutory because it determines only the issue of postseparation support, leaving the trial court still to decide the issues of equitable distribution, alimony, and attorney's fees. Therefore, to warrant immediate appellate review, the order of the trial court must affect a substantial right that would be lost without such review.
Here, Defendant contends that the substantial right affected is her right to a postseparation support hearing. Specifically, Defendant argues that Judge Proctor denied her the postseparation support hearing contemplated by N.C. Gen. Stat. §§ 50-16.2A and 50- 16.8 by failing to consider documentary evidence that Defendant presented at the hearing. We are not persuaded.
In his order denying Defendant's motion for postseparation support, Judge Proctor found, inter alia, that Defendant provided no documentary evidence to the Court and therefore there is no documented evidence that the Plaintiff has the current ability to provide support for Defendant. Defendant argues that because she submitted documentary evidence in the form of an affidavit, copies of letters and a check documenting Plaintiff's royalties derived from land transactions[,] and other documentary evidence evincing Plaintiff's financial ability to pay postseparation support, thetrial court's finding plainly ignores the record in this matter and contravenes N.C. Gen. Stat. § 50-16.2A and § 50-16.8.
Though the statutes upon which Defendant relies establish procedures and criteria to determine an award of postseparation support, neither statute guarantees a hearing free of alleged judicial error. Defendant's contention that the trial court's alleged failure to consider some of her documentary evidence necessarily deprived her of a hearing is without merit. Accepting such an argument, that an error regarding the consideration paid by the trial court to documentary or any other evidence affects a substantial right, would allow immediate appellate review of virtually all postseparation support orders.
Additionally, assuming arguendo that the trial court erred by failing to award postseparation support to Defendant, this alleged error can be corrected by a later award of alimony dating back to the time of separation. See, e.g., Stickel v. Stickel, 58 N.C. App. 645, 294 S.E.2d 321 (1982) (awarding alimony to the dependent spouse from the time of the separation). Accordingly, even if Defendant is correct in her assertion that the trial court erred by failing to consider documentary evidence and thus failing to award her postseparation support, there exists a procedural remedy through which Defendant can recover. Therefore, Defendant will not be permanently deprived of a remedy to the trial court's alleged error. Accordingly, Defendant's appeal from the interlocutory order denying her motion for postseparation support is dismissed.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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