Clements v. Clements

• Decision Date: 03 April 2012
• Docket Number: No. COA11–1323.,COA11–1323.
• Citation: Clements v. Clements, 725 S.E.2d 373 (N.C. App. 2012)
• Parties: Robert S. CLEMENTS, Plaintiff, v. Donna G. CLEMENTS, by and through Lawrence S. CRAIGE and Lavaughn Nesmith, Director of the New Hanover County Department of Social Services, Defendant.
• Court: North Carolina Court of Appeals

725 S.E.2d 373

Robert S. CLEMENTS, Plaintiff,

v.Donna G. CLEMENTS, by and through Lawrence S. CRAIGE and Lavaughn Nesmith, Director of the New Hanover County Department of Social Services, Defendant.

No. COA11–1323.

Court of Appeals of North Carolina.

April 3, 2012.

Appeal by defendant from order entered 8 June 2011 by Judge Jeffrey E. Noecker in New Hanover County District Court. Heard in the Court of Appeals 21 February 2012.

Pennington & Smith, PLLC, by Ralph S. Pennington, Wilmington, and Kristy J. Jackson, for plaintiff appellee.

Shipman & Wright, LLP, by Gary K. Shipman, Wilmington, and C. Cory Reiss, for defendant appellant.

McCULLOUGH, Judge.

Robert S. Clements (“plaintiff”) has filed a motion to dismiss with our Court arguing that the order from which Donna G. Clements (“defendant”) is appealing is interlocutory and does not affect a substantial right. Specifically, plaintiff contends the issue of child support should be addressed by the Clerk of Superior Court of New Hanover County, North Carolina, (the “Clerk”) and not the district court. We disagree and thus will address defendant's argument on appeal. Defendant appeals from the trial court's denial of her motion pursuant to N.C.R. Civ. P. 12(b)(1) (2011) for lack of subject matter jurisdiction. We believe the trial court correctlydenied defendant's motion and thus affirm its decision.

I. Background

The parties were married on 15 February 1997 and subsequently separated on 4 July 2004. They had one child born during the marriage on 5 January 1998, of which plaintiff has had sole custody since separation. Plaintiff filed a complaint for absolute divorce on 13 March 2007 and defendant filed her answer with counterclaims on 20 April 2007. Defendant raised counterclaims of equitable distribution, child custody, and child support. Plaintiff filed a reply and motion in the cause, seeking equitable distribution, child support, child custody, and sequestration of the marital home. On 1 June 2007, due to defendant's repeated arrests and questionable mental health, defendant's counsel moved for a continuance in the case and requested that a Guardian Ad Litem be appointed to investigate defendant's competency. The trial court appointed a Guardian Ad Litem, allowing it time to investigate defendant's competency, and at the same time entered a judgment of absolute divorce on 9 November 2007.

On 27 February 2008, the Clerk adjudicated defendant incompetent and appointed guardians of defendant's person and estate. On 4 November 2009, the trial court, with consent of defendant's guardians, appointed a Guardian Ad Litem to represent defendant's interests in the current action with respect to child custody, visitation, and other personal matters. The trial court set a 24 May 2010 hearing to deal with all issues, including child custody and support. On 4 February 2010, plaintiff filed a motion for summary judgment as to the equitable distribution claim, which the trial court granted on 10 June 2010, leaving only the issues of child support and custody to be addressed. Child custody was resolved by consent order on 24 August 2010, and the trial court scheduled the remaining issue of child support to be heard on 9 June 2011.

On 3 May 2011, defendant replaced her former counsel with her current counsel. Subsequently, on 25 May 2011, defendant moved to dismiss plaintiff's claim for child support on grounds that the district court lacked subject matter jurisdiction over the issue. The trial court heard the motion and on 8 June 2011 entered an order denying the motion and finding that it had subject matter jurisdiction.

Defendant filed her notice of appeal on 13 June 2011 with a subsequent motion to stay the trial court's order on 15 June 2011. The next day plaintiff filed a motion to calendar the issue of support and determine if defendant's appeal was interlocutory or had a substantial right affected. The trial court granted plaintiff's motion to calendar and set the child support issue to be heard the week of 23 January 2012. On 2 August 2011, the trial court also denied defendant's motion to stay, finding that its previous order was interlocutory and did not affect a substantial right. As a result, defendant filed a motion for temporary stay pursuant to N.C.R.App. P. 8(a) and 37 (2012) with our Court, which we granted pending plaintiff's response. Plaintiff then filed his response and included a motion to dismiss. Our Court ultimately denied defendant's motion for temporary stay on 24 August 2011 and at the same time denied plaintiff's motion to dismiss as moot. Plaintiff filed another motion to dismiss with our Court on 2 December 2011, arguing that defendant's appeal is interlocutory. Defendant filed a response and our Court entered a 14 December 2011 order referring plaintiff's motion to our panel for review.

II. Analysis

A. Motion to Dismiss

Defendant raises a single issue on appeal, but we must first address plaintiff's motion to dismiss as referred to our panel. Plaintiff filed his motion with our Court arguing that defendant's appeal is interlocutory and does not affect a substantial right. We disagree.

“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). “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. 357, 362, 57 S.E.2d 377, 381 (1950). To obtain appellate review of an interlocutory order, the appellant must state “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” N.C.R.App. P. 28(b)(4) (2012). Furthermore, appellate review of an interlocutory order is only available

“if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A–1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.”

Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C.App. 711, 713, 582 S.E.2d 321, 323 (2003) (quoting Myers v. Mutton, 155 N.C.App. 213, 215, 574 S.E.2d 73, 75 (2002)).

“Whether an interlocutory appeal affects a substantial right is determined on a case by case basis.” McConnell v. McConnell, 151 N.C.App. 622, 625, 566 S.E.2d 801, 803 (2002). “In order to determine whether a particular interlocutory order is appealable pursuant to N.C. Gen.Stat. §§ 1–277(a) and 7A–27(d)(1), we utilize a two-part test, with the first inquiry being whether a substantial right is affected by the challenged order and the second being whether this substantial right might be lost, prejudiced, or inadequately preserved in the absence of an immediate appeal.” Hamilton v. Mortgage Info. Servs., ––– N.C.App. ––––, ––––, 711 S.E.2d 185, 189 (2011). “ ‘A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.’ ” Trivette v. Yount, ––– N.C.App. ––––, ––––, 720 S.E.2d 732, 735, (2011) (quoting Turner v. Norfolk S. Corp., 137 N.C.App. 138, 142, 526 S.E.2d 666, 670 (2000)).

Plaintiff contends that a denial of a motion to dismiss for lack of subject matter jurisdiction is interlocutory and does not affect a substantial right. See Country Club of Johnston County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C.App. 159, 519 S.E.2d 540 (1999). More specifically, plaintiff argues that the issue of child support has not been adjudicated, meaning the appeal is interlocutory. Consequently, the issue turns to whether or not the denial of a motion for lack of subject matter jurisdiction affects a substantial right. In claiming that the denial of the motion does not affect a substantial right, plaintiff contends that cases involving subject matter jurisdiction all revolve around which court has the jurisdiction to hear a case and should we accept defendant's argument, every case involving subject matter jurisdiction would affect a substantial right. Plaintiff acknowledges that defendant has the right to avoid two trials with the potential of inconsistent verdicts, but he contends the potential is lacking in the instant case. See Liggett Group v. Sunas, 113 N.C.App. 19, 24, 437 S.E.2d 674, 677 (1993). At most, plaintiff argues that defendant may be subjected to a retrial before the Clerk if our Court were to reverse the district court's order in an appeal following the district court's final judgment. See McIntyre v. McIntyre, 175 N.C.App. 558, 563, 623 S.E.2d 828, 832 (2006). Otherwise, plaintiff claims we should dismiss defendant's appeal because it has caused excessive delay and costs in an already lengthy case. See Waters v. Personnel, Inc., 294 N.C. 200, 207–08, 240 S.E.2d 338, 343 (1978).

Alternatively, defendant's argument is that should plaintiff's motion be allowed and the district court addresses the issue of child support with the same factual support, there is a real possibility of conflicting results since the Clerk also has the ability to hear the issue and submit its own order. A party has a substantial right to avoid two trials on the same facts in different forums where the results would conflict. Hamby v. Profile Prods., L.L.C., 361 N.C. 630, 639, 652 S.E.2d 231, 237 (2007). Where a party is appealing an interlocutory order to avoid two trials, the party must “show that (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.” N.C. Dept. of Transportation v. Page, 119 N.C.App. 730, 736, 460 S.E.2d 332, 335 (1995). In the case at hand, plaintiff contends that the Clerk is the proper forum to hear an issue regarding expenditures to be made from the estate of an incompetent ward,...