Hunter v. Hunter
| Decision Date | 01 July 1997 |
| Docket Number | No. COA96-1141,COA96-1141 |
| Citation | 486 S.E.2d 244,126 N.C.App. 705 |
| Parties | Angelia H. HUNTER, Plaintiff, v. Johnnie M. HUNTER, Defendant. |
| Court | North Carolina Court of Appeals |
David I. Smith, Burlington, for plaintiff appellant.
David R. Huffman, Graham, for defendant appellee.
Plaintiff appeals from an interim equitable distribution order. The threshold issue presented by this appeal is whether the interim order is immediately appealable. We conclude that it is not and dismiss the appeal.
On 4 December 1995, plaintiff filed a complaint seeking a divorce from bed and board, custody of the parties' minor child, child support, alimony, an equitable distribution of the marital property, and an order requiring defendant to pay the marital debts and maintain insurance coverage on plaintiff and the minor child. In his answer and counterclaim, defendant joined in the request for a divorce and equitable distribution and sought joint custody of the minor child, child support, and a temporary restraining order enjoining plaintiff from removing, wasting, converting, or damaging the parties' separate and marital property pending equitable distribution. On 23 February 1996, a consent order was filed granting plaintiff a divorce and resolving the issues of child custody, child support, alimony, and the payment of certain debts pending equitable distribution.
On 5 March 1996, plaintiff filed a motion for an interim equitable distribution order pursuant to N.C.Gen.Stat. § 50-20(i1) (1995). In her motion, plaintiff alleged that the parties acquired during their marriage $37,000 in cash from insurance policies purchased during the marriage on the life of their daughter, Kelly Victoria Hunter, who is now deceased; that the life insurance proceeds are marital property and are in defendant's possession; and that defendant will not turn over to plaintiff her share of the proceeds. Plaintiff requested that the court distribute the life insurance proceeds equally between the parties and also requested that the court appoint an appraiser to appraise the parties' coin collection and real estate. Defendant filed a reply and countermotion in which he claimed that the insurance proceeds are his separate property because the insurance policies were provided by his employer. Defendant requested that the proceeds be declared his separate property and awarded to him in an interim distribution order. Defendant joined in the request for the appointment of an appraiser to appraise the parties' coin collection and real estate. By interim distribution order filed 24 July 1996, the trial court ruled that the insurance proceeds are defendant's separate property and therefore not subject to equitable distribution. Plaintiff appeals.
N.C.Gen.Stat. § 50-20(i1) provides, in pertinent part:
For good cause shown, including, but not limited to, providing for the subsistence of a spouse while an action is pending, the Court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and dividing part of the marital property between the parties. The partial distribution may provide for a distributive award. Any such orders entered shall be taken into consideration at trial and proper credit given.
Interim equitable distribution orders are by nature preliminary to entry of a final equitable distribution judgment and thus are interlocutory. See Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950) (). An interlocutory decree is immediately appealable only if permitted by N.C.Gen.Stat. § 1-277 (1996), N.C.Gen.Stat. § 1A-1, Rule 54(b) (1990), or N.C.Gen.Stat. § 7A-27(d) (1995). The only possible basis on which the present order could be immediately appealable under any of these statutes is on the ground it affects a substantial right. See N.C.Gen.Stat. §§ 1-277(a) and 7A-27(d)(1). To be immediately appealable on that basis, plaintiff has the burden of showing that: (1) the order affects a right that is substantial; and (2) the deprivation of that substantial...
To continue reading
Request your trial
-
Hamilton v. Mortgage Info. Serv. Inc.
...of justice[.]” Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980) (citations omitted); see also Hunter v. Hunter, 126 N.C.App. 705, 708, 486 S.E.2d 244, 245–46 (1997) (stating that “ ‘[a]ppellate procedure is designed to eliminate the unnecessary delay and expense of repeated ......
-
Honeycutt v. Honeycutt
...43, aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999); Rowe v. Rowe, 131 N.C.App. 409, 507 S.E.2d 317 (1998); Hunter v. Hunter, 126 N.C.App. 705, 486 S.E.2d 244 (1997). Moreover, the majority's decision will not obviate the need for the trial court to examine the claims for fraud, misrep......
-
Angell v. Southco Distributing Co. (In re Hatu)
... ... order to settle and determine the entire controversy." ... Id. See also, Hunter v. Hunter, 486 S.E.2d 244, 245 ... (N.C. Ct. App. 1997); Veazey v. Durham, 57 S.E.2d ... 377 (N.C. 1950) ... Defendant ... ...
-
Sable v. Sable, No. COA05-664 (N.C. App. 6/6/2006)
...do not address the 30 October 2003 order because the trial court entered a final order on 19 July 2004. See Hunter v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d 244, 246 (1997) (If an interim order does not affect a substantial right, the appealing party's rights will be adequately protecte......