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Eubanks v. Eubanks

Filed: October 20, 1981.

FRANCES EUBANKS
v.
LYNWOOD EUBANKS



Appeal by defendant from Harrill, Judge. Judgment entered 19 December 1980 in District Court, Forsyth County. Heard in the Court of Appeals 22 September 1981.

Whichard, Judge. Judges Hedrick and Hill concur.

Whichard

Because further action is required by the trial court to determine plaintiff's action in its entirety, the judgment is interlocutory in character. "Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment." Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.

2d 30, 34 (1975). We perceive no substantial right to be affected and no injury to defendant to be worked by delaying appeal until final judgment. Justice Exum's statement in Industries, Inc. v. Insurance Co., is equally applicable here: "If this partial summary judgment is in error defendant can preserve [his] right to complain of the error on appeal from the final judgment by a duly entered exception." 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979). We thus dismiss the appeal.

We note that in a memorandum of additional authorities defendant has argued the applicability here of McCarty v. McCarty, $>$>U.S. , 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981). In McCarty, the United States Supreme Court held, pursuant to the supremacy clause of the United States Constitution, article VI, clause 2, that federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws. In view of our dismissal of this appeal, the issue of applicability to this case of McCarty should now be presented to the trial court prior to any appellate review.

Appeal dismissed.

Disposition

Appeal dismissed.

19811020

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