Nielson v. Schmoke, COA 20-701

Docket NºNo. COA 20-701
Citation863 S.E.2d 652, 278 N.C.App. 656
Case DateAugust 03, 2021
CourtCourt of Appeal of North Carolina (US)

278 N.C.App. 656
863 S.E.2d 652

Lauri A. NIELSON (fka Schmoke), Plaintiff
v.
Raymond SCHMOKE, Defendant

No. COA 20-701

Court of Appeals of North Carolina.

Filed August 3, 2021


Butler & Butler, L.L.P., Wilmington, by Hunter E. Fritz, for plaintiff-appellee.

Kerner Law Firm, PLLC, Wilmington, by Thomas W. Kerner, for defendant-appellant.

HAMPSON, Judge.

863 S.E.2d 654

Factual and Procedural Background

¶ 1 Raymond Schmoke (Defendant) appeals from an Order entered 18 March 2020 concluding judgments originally entered in a Michigan Court on 29 December 2003 and 12 October 2009, and filed as foreign judgments in North Carolina on 28 June 2013, remained enforceable in North Carolina under North Carolina's 10-year statutory enforcement period for judgments. Specifically, the trial court's Order denied Defendant's Motion to Abate Post-Judgment Proceedings and required Defendant and his current spouse to respond to discovery in supplemental proceedings, including production of documents and other information requested under N.C. Gen. Stat. § 1-352.2. The Record tends to reflect the following:

¶ 2 On 29 December 2003, the Circuit Court for Manistee County, Michigan (Michigan Court) entered a judgment (Michigan Divorce Judgment) in favor of Lauri Nielson (Plaintiff) against Defendant, her ex-husband. On 12 October 2009, the Michigan Court entered an additional judgment in favor of Plaintiff (Supplemental Judgment).

¶ 3 On 28 June 2013, pursuant to North Carolina's version of the Uniform Enforcement of Foreign Judgments Act (UEFJA) contained in N.C. Gen. Stat. § 1C-1701 et seq. (2019), Plaintiff enrolled the Michigan Divorce Judgment and Supplemental Judgment (collectively, the Foreign Judgments), and commenced the current action through a Notice of Filing and by filing the Foreign Judgments in North Carolina with the New Hanover County Clerk of Superior Court. Consistent with N.C. Gen. Stat. § 1C-1703, Plaintiff filed the Foreign Judgments with a supporting affidavit averring the Foreign Judgments were final judgments and were, at the time, unsatisfied in the amount of $1,323,096.31. Consistent with N.C. Gen. Stat. § 1C-1704, Plaintiff served a Notice of Filing on Defendant along with copies of the Foreign Judgments and supporting affidavit.

¶ 4 On 29 July 2013, Defendant filed a Motion to Strike Affidavit and Notice of Defenses to Enforcement of Foreign Judgments pursuant to N.C. Gen. Stat. § 1C-1705. Defendant subsequently filed a Notice of Additional Defenses on 11 March 2014, along with a Motion to Strike Plaintiff's Amended Affidavit.

¶ 5 On 12 August 2015, the trial court entered a Judgment (North Carolina Judgment) concluding Plaintiff had met all the requirements under the UEFJA and the Foreign Judgments were entitled to Full Faith and Credit in North Carolina. The trial court entered the Judgment in favor of Plaintiff in the amount of $1,323,096.31 plus interest from and after 23 August 2013.

¶ 6 After an unsuccessful attempt to enforce the Judgment by way of Writ of Execution, Plaintiff began supplemental proceedings by conducting an oral examination of Defendant under N.C. Gen. Stat. § 1-352. Following this oral examination, on 2 October 2019, Plaintiff filed and served two separate Motions seeking Defendant and his current spouse to "Produce Documents and Information" pursuant to N.C. Gen. Stat. § 1-352.2. Both Motions were heard ex parte by the Clerk of Court, and on 3 and 9 October 2019 respectively, the Clerk of Court entered orders granting these Motions (collectively, Discovery Orders).

¶ 7 On 29 October 2019, Defendant filed a Motion to Set Aside the Order of the Clerk of Court ordering him to provide discovery in supplemental proceedings. Subsequently, on 19 December 2019, Defendant filed a Motion to Abate Post-Judgment Proceedings on the basis the Foreign Judgments were no longer enforceable in North Carolina. During a 9 January 2020 hearing before the trial court on these Motions, Defendant argued all post-judgment enforcement efforts, including supplemental proceedings, should abate because the statutory 10-year period for enforcing a judgment in North Carolina had expired. Specifically, Defendant contended because the Supplemental Judgment had been entered by the Michigan Court in October 2009, at the latest, the enforcement period of the Foreign Judgments had expired in October 2019, and, thus, the North Carolina Judgment was also now unenforceable.

¶ 8 In its Order entered 18 March 2020, the trial court "[wa]s persuaded by the logic of

863 S.E.2d 655

Wells Fargo Equip. Fin., Inc. v. Asterbadi , 841 F.3d 237 (4th Cir. 2016) (applying 28 U.S.C. § 1963 ) and h[e]ld[ ] that the Enforcement Period started to run on the date the Foreign Judgments were filed with the Clerk of Court: June 28, 2013." The trial court also determined the Foreign Judgments "were entitled to Full Faith and Credit in the State of North Carolina." The trial court subsequently concluded: "[t]he Enforcement Period to enforce the North Carolina Judgment ha[d] not expired" and "[t]he Enforcement Period to enforce the Foreign Judgments ha[d] not expired." Accordingly, the trial court ordered: "Defendant's Motion to Abate Post-Judgment Proceedings is respectfully DENIED[.]" The trial court also denied Defendant's Motion to Set Aside the Clerk's Order requiring discovery responses and ordered Defendant and his current spouse to "provide to counsel for the Plaintiff the documents and information set forth" in the Discovery Orders entered by the Clerk of Court "within ten (10) days following the entry of this Order." Defendant filed written Notice of Appeal on 17 April 2020.

Appellate Jurisdiction

¶ 9 As an initial matter, Plaintiff characterizes the trial court's 18 March 2020 Order denying Defendant's Motion to Abate Post-Judgment Proceedings and requiring Defendant and his spouse to respond to discovery in post-judgment supplemental proceedings as a "Discovery Order[,]" which is interlocutory and not immediately appealable. For his part, Defendant contends the trial court's 18 March 2020 Order constitutes an appealable final order, or, in the alternative—if it does constitute an interlocutory order—it is one that, in effect, determines the action and prevents a judgment from which an appeal might be taken or otherwise affects a substantial right under N.C. Gen. Stat. § 7A-27(b).

¶ 10 "Interlocutory orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy." Sharpe v. Worland , 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (quotation marks and citations omitted). "Generally, there is no right of immediate appeal from interlocutory orders and judgments." Id. (citations omitted) "The purpose of this rule is to prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard." Id. at 161, 522 S.E.2d at 578-79 (quotation marks and citations omitted).

¶ 11 Here, fundamentally, the trial court's 18 March 2020 Order resolves all issues before it on the basis the statutory 10-year period to enforce the Foreign Judgments in North Carolina had not expired, resulting in a Judgment enforceable through execution and supplemental proceedings. Thus, the trial court's Order is certainly in the nature of a final Order or Judgment from which appeal may be taken. See Veazey v. City of Durham , 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) ("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." (citations omitted)).

¶ 12 Moreover, presuming the trial court's Order is interlocutory—to the extent it may be interpreted as compelling discovery in supplemental proceedings without imposing a sanction for failure to comply—we agree with Defendant the trial court's Order is one affecting a substantial right which would be lost absent immediate appeal permitting review under N.C. Gen. Stat. § 7A-27(b)(2)(a) ; that is, absent an immediate appeal, Defendant may be subject to enforcement proceedings, including execution on his property or the imposition of sanctions on a Judgment that may not otherwise be enforceable. This is exactly what application of the 10-year enforcement period is designed to prevent. Indeed, it is unclear how, absent this immediate appeal, Defendant would ever be able to seek direct appellate review of the trial court's decision.1 Consequently, for purposes of this appeal, we conclude Defendant has established his right to appeal the trial

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1 practice notes
  • State v. Teesateskie, COA20-190
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 3, 2021
    ...remains the same whether the trial court has admitted or excluded the testimony—even when the exclusion of expert testimony results in 863 S.E.2d 652 summary judgment and thereby becomes outcome determinative. State v. McGrady , 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citations and mark......
1 cases
  • State v. Teesateskie, COA20-190
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 3, 2021
    ...remains the same whether the trial court has admitted or excluded the testimony—even when the exclusion of expert testimony results in 863 S.E.2d 652 summary judgment and thereby becomes outcome determinative. State v. McGrady , 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citations and mark......

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