Preston v. Preston
| Decision Date | 05 April 2022 |
| Docket Number | COA21-204 |
| Citation | 872 S.E.2d 141 |
| Parties | Patrick PRESTON, Plaintiff, v. Toshiko PRESTON, Defendant. |
| Court | North Carolina Court of Appeals |
Hamilton Stephens Steele & Martin, PLLC, by Kyle W. LeBlanc, for Plaintiff-Appellee.
Fleet Law, by Jennifer L. Fleet, for Defendant-Appellant.
¶ 1 Toshiko Preston ("Defendant") appeals from an order granting sanctions and attorneys’ fees to Patrick Preston ("Plaintiff"). We dismiss Defendant's appeal as interlocutory.
¶ 2 Plaintiff and Defendant were married on 25 July 1988. The facts leading to the imposition of sanctions against Defendant are as follows: Plaintiff filed a complaint for absolute divorce in October 2018. On 12 July 2019, Defendant filed her answer as well as motions to dismiss for lack of subject matter jurisdiction, improper venue, insufficiency of process, failure to state a claim, and a motion for sanctions. A hearing on these motions was held on 15 January 2020 ("the motions to dismiss hearing"). At the motions to dismiss hearing, the trial court indicated Defendant argued "profusely" that Plaintiff was not a citizen or resident of Mecklenburg County, that venue was improper in Charlotte, North Carolina and that North Carolina lacked jurisdiction to proceed with Plaintiff's complaint for absolute divorce. The trial court found Plaintiff was, in fact, a North Carolina resident, and jurisdiction was proper. Defendant appealed the trial court's decision, and those matters were resolved by this Court in the case of Preston v. Preston , ––– N.C. App. ––––, 2021-NCCOA-670, 865 S.E.2d 903 (unpublished). In the appeal now before us, we review the imposition of sanctions against Defendant pursuant to N.C. Gen. Stat. § 1A-1, R. 11 (2021) (" Rule 11").
¶ 3 On 14 January 2020, one day before the motions to dismiss hearing, Defendant signed a verification for her complaint for post separation support, alimony, equitable distribution, and attorneys’ fees. Contrary to the position she took at the motions to dismiss hearing, Defendant's complaint stated Plaintiff was a resident of North Carolina and admitted jurisdiction was proper. The complaint was file stamped on 15 January 2020, approximately one hour after the conclusion of the motions to dismiss hearing. In February 2020, Defendant also filed a motion to stay the divorce proceeding, which was denied. Plaintiff subsequently filed a motion for sanctions and attorneys’ fees pursuant to Rule 11. The divorce had not been finalized at the time both parties’ briefs were filed.
¶ 4 On 1 September 2020, the trial court signed a written order granting Plaintiff's request for sanctions against Defendant and ordering Defendant to pay Plaintiff $15,000.00 in attorneys’ fees, to be remitted in monthly increments of $300.00 until paid in full. On 30 September 2020 Defendant filed a notice of appeal.
¶ 5 Defendant's appeal is interlocutory. "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." Beasley v. Beasley , 259 N.C. App. 735, 738, 816 S.E.2d 866, 870 (2018) (citation omitted). "[N]o appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right." Waters v. Qualified Pers., Inc. , 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (internal citations and quotation marks omitted). This Court has previously held: "Certain sanctions have been deemed immediately appealable because they affect a substantial right ... [h]owever, an order to pay attorney's fees as a sanction does not affect a substantial right." Long v. Joyner , 155 N.C. App. 129, 134, 574 S.E.2d 171, 175, (2002) (emphasis added) (internal quotations and citations omitted). As we stated in Long , "[t]he order granting attorney fees is interlocutory, as it does not finally determine the action nor affect a substantial right which might be lost, prejudiced, or be less than adequately protected by exception to entry of the interlocutory order." Id. at 134, 574 S.E.2d at 175 (quoting Cochran v. Cochran , 93 N.C. App. 574, 577, 378 S.E.2d 580, 582 (1989) ).
¶ 6 However, we have also held an order for a party to pay a "significant amount of money" may be immediately appealed if it can be shown by the appealing party to affect a substantial right. See Estate of Redden ex rel. Morley v. Redden , 179 N.C. App. 113, 116-17, 632 S.E.2d 794, 798 (2006) , remanded on other grounds , 361 N.C. 352, 649 S.E.2d 638 (2007) ; N.C. Gen. Stat. § 7A-27(b). Of course, "[t]he burden is on the appellant to establish that a substantial right will be affected unless he is allowed immediate appeal from an interlocutory order." Embler v. Embler , 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001) (citation omitted).
¶ 7 In Beasley v. Beasley , the plaintiff was ordered to pay $48,188.15 in attorneys’ fees to his former wife. 259 N.C. App. at 742, 816 S.E.2d at 873. The trial court had not determined and resolved the parties’ equitable distribution claims. Id. at 741, 816 S.E.2d at 872. In Beasley , the issue before this Court was "whether an order for attorney's fees, which completely disposes of that issue as it relates to other substantive claims, is immediately appealable ... particularly where ... it arguably affects a substantial right." Id. at 741, 816 S.E.2d at 872 (citations and internal quotation marks omitted). This Court held the plaintiff's interlocutory appeal was entitled to immediate review and reasoned:
to delay plaintiff's appeal from the order regarding attorney's fees until a final determination on the merits of all the parties’ remaining claims would jeopardize plaintiff's substantial right not only because it is "an order which completely disposes of one of several issues in a lawsuit ... but also because it orders plaintiff to pay a not insignificant amount—$48,188.15—in attorney's fees.
Id. at 742, 816 S.E.2d at 872–73.
¶ 8 The distinction between Beasley and the case at bar is two-pronged and lies in the manner in which the award for attorneys’ fees was requested. In Beasley , an award of attorneys’ fees was requested pursuant to statutory authority, specifically N.C. Gen. Stat. § 50-13.6 (2017) () and N.C. Gen. Stat. § 50-16.4 (2017) (). Id. at 740, 816 S.E.2d at 871. In the case at bar, Plaintiff does not request an award of attorneys’ fees pursuant to North Carolina's alimony or child support statutes, but requests the award in conjunction with Rule 11, as part of a motion for sanctions against Defendant. See N.C. Gen. Stat. § 1A-1, R. 11.
¶ 9 As to the first distinction between Beasley and the case at bar, the grant of attorneys’ fees in Beasley involved the final disposal of an underlying issue, while the grant of attorneys’ fees in the case at bar stems from a Rule 11 motion for sanctions intended to address Defendant's conduct in the ongoing lawsuit. Id. at 741, 816 S.E.2d at 872. "[A]n order which completely disposes of one of several issues in a lawsuit affects a substantial right." Case v. Case , 73 N.C. App. 76, 78, 325 S.E.2d 661, 663 (1985) (citing Oestreicher v. Stores , 290 N.C. 118, 225 S.E. 2d 797 (1976) ). However, the sanctioning nature of the issue in the present case does not involve the disposal of an issue underlying the parties’ original divorce litigation; rather, it presents an entirely new question. The trial court ordered Defendant to pay Plaintiff $15,000.00 in attorneys’ fees, to be remitted in monthly increments of $300.00 until paid in full. The order of such a sanction, pursuant to Rule 11, was imposed to address and deter Defendant's conduct, which the trial court found to be significant in the ongoing action. The imposition of the Rule 11 sanctions was clearly intended to serve as a continuing deterrent, not as a signifier of the disposal of an issue underlying the parties’ original divorce litigation. See Case , 73 N.C. App. at 78, 325 S.E.2d at 663.
¶ 10 Secondly, according to N.C. Gen. Stat. § 50-16.4 (2021), "the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony." N.C. Gen. Stat. § 50-16.4 (emphasis added). Based on the plain language of N.C. Gen. Stat. § 50-16.4, the legislature intended a dependent spouse should receive the award when a request for attorneys’ fees was made pursuant to the statute.
¶ 11 There is a difference between the N.C. Gen. Stat. § 50-16.4 scenario and a request for attorneys’ fees made pursuant to a Rule 11 motion for sanctions, as the purpose of an award for attorneys’ fees in conjunction with a Rule 11 motion for sanctions is to prevent a party's injurious conduct, including harassment and causing unnecessary delay, from continuing during ongoing litigation. See N.C. Gen. Stat. § 1A-1, R. 11. Although Defendant admitted in her complaint for post separation support and alimony she is the "dependent spouse," and Plaintiff is the "supporting spouse" pursuant to N.C. Gen. Stat. § 50-16.1A (2), (5) (2021), and stated she does not have adequate resources to meet her reasonable needs, Plaintiff's request for attorneys’ fees in conjunction with a Rule 11 motion is not limited by a qualifier suggesting the receiver of the award should be the dependent spouse. Cf. Beasley , 259 N.C. App. at 751, 816 S.E.2d at 877-78.
¶ 12 Where Plaintiff's request for attorneys’ fees was made...
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