in the Court of Appeals 2 November 2017.
by defendant from an order entered on 14 December 2016 by
Judge Deborah P. Brown in Iredell County District Court, No.
16 CVD 2066
Tharrington Smith, LLP, by Evan B. Horwitz and Jeffrey R.
Russell, for plaintiff-appellee.
Homesley, Gaines, Dudley, & Clodfelter, LLP, by Leah
Gaines Messick and Christina E. Clodfelter, for
Humphrey Johnson ("Defendant") appeals from an
order entered on December 14, 2016 denying her motion to set
aside a separation agreement executed by the parties on May
19, 2015. Defendant argues the trial court erred because the
separation agreement (1) lacks consideration, (2) is void as
a matter of public policy, and (3) is procedurally and
substantively unconscionable. Defendant further argues her
marital relationship with Ernie Franklin Johnson
("Plaintiff") was reconciled, thereby voiding the
separation agreement. We disagree and affirm the trial court.
and Procedural Background
and Defendant were married on October 16, 1999, and two minor
children were born of the marriage. Defendant was convicted
of larceny in 2014, and was subject to supervised probation
during the last year of the marriage. In January 2015,
Plaintiff engaged an attorney to begin drawing up a
separation agreement due to familial problems over the
Christmas holiday. Plaintiff and Defendant began discussing
separation due to Defendant's criminal activity and drug
addiction, resulting in the execution of the Separation
Agreement on May 19, 2015. Defendant moved out of the marital
residence on that day.
2015, Plaintiff allowed Defendant to return to the marital
residence under the condition that she not expose the family
to drug use or other illegal activity. Defendant lived in the
marital residence from June 2015 until August 14, 2016. Upon
learning of Defendant's arrest for felonious hit and run
on August 14, 2016, Plaintiff changed the locks on the
residence. Defendant was incarcerated for one week, and on
August 20, 2016, attempted to return to the residence, but
was denied entry. Defendant moved to a motel in Statesville
where she was employed at the time.
August 26, 2016, Plaintiff filed a complaint for child
custody and child support, and a motion for immediate
temporary custody of the minor children. The trial court
entered an ex parte order granting Plaintiff
temporary custody until September 6, 2016. On September 12,
2016, the trial court entered an order granting both
Plaintiff and Defendant shared custody of the minor children.
Both parties were ordered to complete a Partners in Parenting
September 7 and 14, 2016, Defendant filed an answer and
counterclaims and an amended answer and counterclaims,
respectively, for child custody, child support,
post-separation support and alimony, equitable distribution,
and attorney's fees. Defendant also filed a motion to set
aside the Separation Agreement. On September 12, 2016, the
trial court held a hearing on Defendant's motion. On
December 14, 2016, the trial court entered an order denying
Defendant's motion to set aside the Separation Agreement,
finding that the Separation Agreement was enforceable, and
that Defendant had not proven by a preponderance of the
evidence that the parties had reconciled. From this order,
Defendant timely appeals.
argues that the trial court erred in (1) finding the
Separation Agreement was supported by consideration; (2)
finding that Plaintiff and Defendant did not reconcile; and
(3) finding that the Separation Agreement is enforceable
because it is not procedurally and substantively
unconscionable. We disagree.
we must consider if this Court has jurisdiction to hear
Defendant's appeal. "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." Kanellos v. Kanellos, __ N.C.App.
__, __, 795 S.E.2d 225, 228 (2016) (citation and quotation
marks omitted). "Generally, there is no right to appeal
from an interlocutory order." Id. (citation and
quotation marks omitted). Here, the appealed order did not
resolve all issues of this case and is interlocutory.
Defendant had pending claims of child custody, child support,
post-separation support, alimony, equitable distribution, and
attorney's fees. The trial court had not made a final
determination of all rights of all parties in this action.
appeal may be taken from every judicial order or
determination of a judge of a superior or district court,
upon or involving a matter of law or legal inference, whether
made in or out of session, which affects a substantial right
claimed in any action or proceeding . . . ." N.C. Gen.
Stat. § 1-277(a) (2017); see also Waters v.
Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343
(1978). A two-part test has evolved to evaluate whether a
substantial right is implicated: "(1) the right itself
must be substantial, and (2) the enforcement of the
substantial right must be lost, prejudiced or be less than
adequately protected by exception to entry of the
interlocutory order." Beroth Oil Co. v. NC Dept. of
Transp., __ N.C.App. __, __, 808 S.E.2d 488, 496 (2017)
(citation and quotation marks omitted).
case sub judice, Defendant appeals from an order
denying Defendant's motion to set aside the Separation
Agreement in an action for child custody, child support,
post-separation support and alimony, equitable distribution,
and attorney's fees. Certainly, Defendant's interests
in custody, division of marital property acquired over
sixteen years, and spousal support are substantial rights.
See Case v. Case, 73 N.C.App. 76, 78-79, 325 S.E.2d
661, 663, disc. rev. denied, 313 N.C. 597, 330
S.E.2d 606 (1985) (holding that a summary judgment order
validating a separation agreement affected equitable
distribution as a substantial right and thus was proper for
interlocutory review). The trial court's determination of
the validity and enforceability of the Separation Agreement
directly impacts those rights in this action as Defendant
stands to gain or lose rights associated with the Separation
Agreement. The trial court's order affected
Defendant's substantial rights, and this Court has
jurisdiction to consider Defendant's appeal.