McConnell v. McConnell, No. COA01-1009.

Docket NºNo. COA01-1009.
Citation566 S.E.2d 801, 151 NC App. 622
Case DateAugust 06, 2002
CourtCourt of Appeal of North Carolina (US)

566 S.E.2d 801
151 NC App.
622

Susan McCONNELL, Plaintiff,
v.
Nacy McCONNELL, Defendant

No. COA01-1009.

Court of Appeals of North Carolina.

August 6, 2002.


566 S.E.2d 803
Law Firm of Richard J. Costanza, by Hal Morris, Southern Pines, for plaintiff

Robbins, May & Rich, LLP, by P. Wayne Robbins, Pinehurst, for defendant.

BIGGS, Judge.

This appeal arises from a modification of a custody order based upon changed circumstances. For the reasons herein, we affirm the trial court.

Susan McConnell (plaintiff) and Nacy McConnell (defendant) were married on 27 December 1971, and lived together as husband and wife until June 1996, when they separated. Although four children were born of this marriage, only one child, born on 8 October 1985, was a minor at all relevant times and she is the subject of this action.

Following their separation, on 13 August 1996, plaintiff filed a complaint in Moore County Civil District Court, seeking custody of the parties' minor child, child support, equitable distribution, temporary possession of marital home, post separation support and alimony. Defendant filed an answer admitting that it was in the minor child's best interest for plaintiff to have sole physical custody.

On 11 March 1997, following a hearing for permanent custody and child support, the trial court entered an order awarding joint legal custody, with plaintiff having primary physical custody of the minor child and defendant having secondary custody in the form of visitation.

Some time after the 1997 order, defendant remarried and purchased a home in Clayton, North Carolina. Plaintiff began corresponding with Davis Chung, a Virginia resident she met through a Christian Internet chat room. Plaintiff and Chung were later engaged to marry. Plaintiff planned to relocate to Virginia with the minor child, but has not yet moved.

On 5 June 2000, defendant filed a Motion to Modify Child Custody alleging that plaintiff was engaged to marry Davis Chung, a convicted child sex offender, and that she intended to relocate to Virginia with the parties' minor child.

On 13 November 2000, the trial court entered an order granting defendant's motion to modify and placing the minor child in his custody. From this order, plaintiff appeals.

At the outset, we note that plaintiff appeals from a child custody and support order that does not address her claims for alimony or equitable distribution. Thus based on the record before us, this appeal would appear to be interlocutory, since the order appealed from does not resolve all of the parties' claims arising out of this action. See generally, Embler v. Embler, 143 N.C.App. 162, 545 S.E.2d 259 (2001); Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). An immediate appeal from an interlocutory order will only lie where (1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C.G.S. § 1A-1, Rule 54(b); or (2) when the challenged order affects a substantial right that may be lost without immediate review. Flitt v. Flitt, 149 N.C.App. 475, 561 S.E.2d 511 (2002). Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. McCallum v. North Carolina Coop. Extensive Serv. of N.C. State Univ., 142 N.C.App. 48, 542 S.E.2d 227

566 S.E.2d 804
(2001). The burden to establish that a substantial right will be affected unless he is allowed immediate appeal from an interlocutory order is on the appellant.1 Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 444 S.E.2d 252 (1994)

In the case sub judice, the trial court did not certify the case for immediate appeal pursuant to Rule 54, and thus we must determine whether the order appealed from affects a substantial right. "A substantial right is `one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'" Turner v. Norfolk S. Corp., 137 N.C.App. 138, 142, 526 S.E.2d 666, 670 (2000) (citations omitted). Our Supreme Court, in Oestreicher v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976), defined a substantial right as "a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right." This appeal arises from an order modifying a permanent custody order for a minor child. Our Courts have not addressed whether a permanent custody order affects a substantial right.2 However, the order in this case involves the removal of the child from a home where the court specifically concluded "that there is a direct threat that the child is subject to sexual molestation if left in the mother's home." Where as here, the physical well being of the child is at issue, we conclude that a substantial right is affected that would be lost or prejudiced unless immediate appeal is allowed. Accordingly, we will address the merits of this appeal.

Although plaintiff sets forth several assignments of error in her brief, the dispositive issue on appeal is whether the trial court erred in modifying the 1997 custody order. Plaintiff specifically argues that (1) there was insufficient evidence presented to establish a substantial change of circumstances; (2) the court in its order failed to make a specific finding of fact that a substantial change of circumstance that "affects the welfare of the child" had occurred; and (3) the court's findings of fact do not support its conclusions of law. We disagree.

It is well settled that the trial court is vested with broad discretion in child custody cases. Henderson v. Henderson, 121 N.C.App. 752, 468 S.E.2d 454 (1996). The decision of the trial court should not be upset on appeal absent a clear showing of abuse of discretion. Falls v. Falls, 52 N.C.App. 203, 278 S.E.2d 546 (1981). "Findings of fact by a trial court must be supported by substantial evidence." Browning v. Helff, 136 N.C.App. 420, 423, 524 S.E.2d 95, 97-98 (2000) (citation omitted). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Union Transfer and Storage Co. Inc. v. Lefeber, 139 N.C.App. 280, 533 S.E.2d 550 (2000). "A trial court's findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them." Browning, 136 N.C.App. at 423, 524 S.E.2d at 98. However, the trial court's conclusions of law must be reviewed de novo. Id.

In the case sub judice, plaintiff does not assign error or except to any of the court's findings. Where no error is assigned to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. Anderson Chevrolet/Olds v. Higgins, 57 N.C.App. 650, 292 S.E.2d 159 (1982) (citations omitted); see also Baker v. Log Systems, Inc., 75 N.C.App. 347, 350-51, 330 S.E.2d 632, 635 (1985) (where appellant does not bring forth exceptions in his brief to certain findings of the trial court, he is deemed to have abandoned...

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45 practice notes
  • Sandhill Amusements, Inc. v. Sheriff of Onslow Cnty., No. COA14–85.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 5, 2014
    ...interlocutory order 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). The appellant bears the burden of establishing that a substantial right will be affected unless he is allowed an immediate appe......
  • Nation Ford Baptist Church Inc. v. Davis, COA20-800
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...challenged order affects a substantial right that may be lost without immediate review." McConnell v. McConnell , 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002) (citation omitted). ¶ 10 A "substantial right" is "a right materially affecting those interests which a man is entitled to hav......
  • Nation Ford Baptist Church Inc. v. Davis, COA20-800
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...challenged order affects a substantial right that may be lost without immediate review." McConnell v. McConnell, 151 N.C.App. 622, 624, 566 S.E.2d 801, 803 (2002) (citation omitted). ¶ 10 A "substantial right" is "a right materially affecting those interests which a man is entitled to have ......
  • Sunbelt Rentals v. Head & Engquist, No. COA04-862.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 18, 2005
    ...160, 165 (1979). Appellate review of the trial court's conclusions of law is de novo. McConnell v. McConnell, 151 N.C.App. 622, 626, 566 S.E.2d 801, 804 We will consider the applicable findings and conclusions according to defendants' assignments of error. We note the extensive number of as......
  • Request a trial to view additional results
45 cases
  • Sandhill Amusements, Inc. v. Sheriff of Onslow Cnty., No. COA14–85.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • September 5, 2014
    ...interlocutory order 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). The appellant bears the burden of establishing that a substantial right will be affected unless he is allowed an immediate appe......
  • Nation Ford Baptist Church Inc. v. Davis, COA20-800
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...challenged order affects a substantial right that may be lost without immediate review." McConnell v. McConnell , 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002) (citation omitted). ¶ 10 A "substantial right" is "a right materially affecting those interests which a man is entitled to hav......
  • Nation Ford Baptist Church Inc. v. Davis, COA20-800
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...challenged order affects a substantial right that may be lost without immediate review." McConnell v. McConnell, 151 N.C.App. 622, 624, 566 S.E.2d 801, 803 (2002) (citation omitted). ¶ 10 A "substantial right" is "a right materially affecting those interests which a man is entitled to have ......
  • Sunbelt Rentals v. Head & Engquist, No. COA04-862.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 18, 2005
    ...160, 165 (1979). Appellate review of the trial court's conclusions of law is de novo. McConnell v. McConnell, 151 N.C.App. 622, 626, 566 S.E.2d 801, 804 We will consider the applicable findings and conclusions according to defendants' assignments of error. We note the extensive number of as......
  • Request a trial to view additional results

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