Smart v. Smart

• Decision Date: 16 November 1982
• Docket Number: No. 8125DC1365,8125DC1365
• Citation: Smart v. Smart, 297 S.E.2d 135, 59 N.C.App. 533 (N.C. App. 1982)
• Parties: Victoria Hilderbran SMART v. Bobby Gerald SMART.
• Court: North Carolina Court of Appeals

Page 135

297 S.E.2d 135

59 N.C.App. 533

Victoria Hilderbran SMART v. Bobby Gerald SMART.

No. 8125DC1365.

Court of Appeals of North Carolina.

Nov. 16, 1982.

Rudisill & Brackett, P.A. by J. Richardson Rudisill, Jr., and James B. Trapp, Jr., Hickory, for defendant-appellant.

Randy D. Duncan, Hickory, for plaintiff-appellee.

JOHNSON, Judge.

In his brief, defendant contends (1) that the order is appealable under G.S. 1-277 and G.S. 7A-27(d); (2) that the order is not supported by competent evidence; and (3) that the Domestic Violence Act, G.S. Chap 50B is unconstitutional per se and as applied to the defendant.

We need to address only defendant's first contention which we find to be dispositive of this appeal.

Defendant has attempted to appeal from an order entered pursuant to the Domestic Violence Act, G.S. 50B. Defendant argues that the order affects substantial rights of his which will be lost if the order is not reviewed before final judgment.

G.S. 1-277 and G.S. 7A-27, taken together, provide that no appeal will lie to an appellate court from an interlocutory order or ruling of a trial court unless such order or ruling deprives the appellant of a substantial right which he will lose if the order or ruling is not reviewed before final judgment. Clark v. Clark, 42 N.C.App. 84, 255 S.E.2d 568 (1979); Funderburk v. Justice, 25 N.C.App. 655, 214 S.E.2d 310 (1975). As this Court recently stated, "the avoidance of deprivation due to delay is one of the purposes for the rule that interlocutory orders are not immediately appealable." Stephenson v. Stephenson, 55 N.C.App. 250, 251, 285 S.E.2d 281 (1981).

The order defendant here appeals from is interlocutory. An interlocutory order is one that does not determine the issues, but directs some further proceeding preliminary to final decree. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978); Green v. Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961). It is clear that Judge Noble's order does not determine the issues involved but, in compliance with G.S. 50B-2(b) and (c), sets a hearing date for further proceedings preliminary to a final decree. ¹

The word "substantial" is defined as "of real worth and importance; of considerable value, valuable." Blacks Law Dictionary, 4th Ed. (1968). A right is substantial only where appellant would lose it if the ruling or order is not reviewed before final judgment. Funderburk v. Justice, supra.

Defendant relies upon Kearns v. Kearns, 6 N.C.App. 319, 170 S.E.2d 132 (1969) and Peeler v. Peeler, 7 N.C.App. 456, 172 S.E.2d 915 (1970). Kearns involved a temporary order awarding alimony pendente lite, child custody, counsel fees, and the possession of certain properties. Peeler involved alimony pendente lite and counsel fees. In both Kearns and Peeler this Court held that the temporary orders affected substantial rights and were, therefore, immediately appealable.

However, defendant's reliance is misplaced as this Court expressly overruled Peeler and other prior decisions recognizing a right of appeal from orders pendente lite in Stephenson v. Stephenson, supra.

The trial court in Stephenson entered an order for alimony pendente lite, child support, and attorney's fees. The defendant appealed. In dismissing defendant's appeal, this Court stated:

"In consideration of fairness to the parties and as a matter of public policy, this Court now overrules Peeler v. Peeler, supra, and other prior decisions recognizing a right of immediate appeal from orders and awards pendente lite. We hold, therefore, that orders and awards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to G.S. 7A-27(d)."

55 N.C.App. at 252, 285 S.E.2d at 282.

Judge Noble's order complies with the provisions of G.S. 50B-2(b) and (c). We hold that the order is interlocutory and the immediate temporary emergency relief granted by the order does not affect any substantial right of the defendant which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits.

Defendant's appeal of this matter was premature. Counsel for defendant conceded during oral argument before this Court that the matters between the parties...