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Beasley v. Beasley

Court of Appeals of North Carolina

June 5, 2018


          Heard in the Court of Appeals 6 February 2018.

          Appeal by plaintiff from order entered 28 December 2016 by Judge Lisa V.L. Menefee in Forsyth County District Court, No. 15 CVD 5916

          Jones Law PLLC, by Brian E. Jones, for plaintiff-appellant.

          Halvorsen Bradshaw, PLLC, by Ruth I. Bradshaw for defendant-appellee.

          BRYANT, JUDGE.

         Where the trial court's order for attorney's fees effectively disposes of plaintiff's claim for attorney's fees as they relate to the issues of child support and child custody; and plaintiff's interlocutory appeal affects a substantial right, we review plaintiff's appeal. Where the trial court's findings of fact are supported by competent evidence and in turn support the conclusion that defendant is entitled to receive a portion of her attorney's fees, we affirm the order of the trial court.

         Plaintiff Brian Carter Beasley and defendant Katherine Leigh Beasley were married for sixteen years. The parties separated on 2 September 2015. They have one minor child, currently seven years old.

         Plaintiff initiated the instant lawsuit on 25 September 2015 by filing claims for child custody, child support, motion for medical records of defendant, and attorney's fees. Defendant filed a Motion to Strike, Answer, and Counterclaims on 23 November 2015. Meanwhile, the parties were unable to reach a mediated parenting agreement as to child custody.

         When the cross-claims for child custody came on for hearing on 18 February 2016, the parties resolved the issue by consent in a Memorandum of Judgment/Order entered that same day. A consent order for child custody was entered on 29 July 2016 nun pro tunc 18 February 2016, which reserved any and all pending claims, including but not limited to attorney's fees. Pursuant to the consent order, the parties also agreed that defendant would relocate from Winston-Salem, North Carolina, to Madison County, Alabama, in May 2016. In April, the parties entered into a Consent Order to Sell Former Marital Residence, in which they agreed the funds from the sale of the marital home would be held in the parties' attorneys' trust accounts until resolution of the pending cross-claims for equitable distribution.

         Plaintiff and defendant again reached an impasse at private mediation. On 31 May, the parties proceeded to a hearing before the Honorable Lisa V. L. Menefee, Chief Judge presiding in Forsyth County District Court on the pending cross-claims for child support and defendant's claim for post-separation support. Judge Menefee rendered an oral ruling for plaintiff to pay defendant child support and post- separation support. Thereafter, the trial court entered its written order on 5 July 2016 nunc pro tunc 31 May 2016 which detailed that beginning on 1 June 2016 "and continuing on the first day of the month thereafter, " plaintiff was to pay defendant $3, 445.93 in post-separation support and $1, 116.00 in child support.

         On 12 July 2016, defendant filed a motion for contempt, attorney's fees, and a show cause order asking the trial court to hold plaintiff in civil and/or criminal contempt for failing to pay child support or post-separation support. Defendant's motion alleged that plaintiff owed defendant "at least $1, 116 in child support arrears and at least $5, 168.91 in post-separation support arrears." Defendant alleged that as of the date of filing the motion,

[p]laintiff ha[d] failed to comply with the Order in that the only money [p]laintiff has given [d]efendant is one check on June 8, 2016 in the amount of $1, 116 for child support. Defendant cashed the check on June 9 or 10th at State Employees' Credit Union (SECU). On or about June 14, 2016, [d]efendant received a call from SECU notifying her that [p]laintiff's BB&T check bounced. SECU began seeking fees and reimbursement from [d]efendant.

         That same day, the trial court entered a show cause order, ordering plaintiff to appear in Forsyth County District Court on 25 July 2016.

         On 22 July 2016, plaintiff filed a motion to continue, stating that he had moved to Alabama where he had taken a new job and that he had been unemployed for several weeks leading up to his move. As such, plaintiff argued, he was financially unable to comply with the 5 July 2016 order. Plaintiff's motion was denied. When plaintiff failed to appear on 25 July on the show cause order, the Honorable Camille Banks-Payne, Judge presiding, entered a Commitment Order for Civil Contempt against plaintiff.

         On 31 August 2016, defendant noticed for hearing the issue of attorney's fees related to her resolved claims for child custody, child support, and post-separation support, and the hearing was set for 26 October 2016. At the hearing, the court received into evidence, without objection, the affidavit of attorney's fees of defendant's counsel. On 28 December 2016 nunc pro tunc 26 October 2016, the trial court entered its Order for Attorney's fees, stating it had considered the "voluminous pleadings of record to include[, ] but not limited to[, ] the Order for Child Support and Order for Post-Separation Support[, ] . . . the Consent Order for Child Custody[, ]. . . the motions to continue, . . . the verified Affidavit of Attorney's fees presented by Defendant's counsel, and arguments of counsel[.]" The trial court ordered that "Plaintiff shall pay directly to Defendant's attorneys . . . attorney's fees in the total amount of $48, 188.15 by no later than December 31, 2016." Plaintiff appeals.

         Plaintiff concedes that his appeal from the trial court's Order for Attorney's Fees is interlocutory, as other claims in this case remain outstanding. We first address the interlocutory nature of plaintiff'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." Musick v. Musick, 203 N.C.App. 368, 370, 691 S.E.2d 61, 62-63 (2010) (quoting McIntyre v. McIntyre, 175 N.C. Ap. 558, 561-62, 623 S.E.2d 828, 831 (2006)).

While a final judgment is always appealable, an interlocutory order may be appealed immediately only if (i) the trial court certifies the case for immediate appeal pursuant to N.C. G.S. § 1A-1, Rule 54(b), or (ii) the order "affects a substantial right of the appellant that would be lost without immediate review."

Id. at 370, 691 S.E.2d at 63 (quoting McIntyre, 175 N.C.App. at 562, 623 S.E.2d at 831). As the trial court in the instant case did not certify the order for attorney's fees pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), plaintiff's right to an immediate appeal, if one exists, necessarily depends on whether the trial court's order denying his motion affects a substantial right. See id. (citation omitted).

         "The 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). "Th[e] [substantial right] rule is grounded in sound policy considerations. Its goal 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 165, 545 S.E.2d at 261-62 (quoting Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)).

         However, "an 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) (citation omitted) (allowing immediate appeal of the trial court's entry of summary judgment on the defendant's counterclaim for equitable distribution as it affected a substantial right, even though claims for absolute divorce, child custody, and child support were still pending in the trial court).

         In August 2013, the following statutory provision ("Maintenance of certain appeals allowed") became effective and applies to the instant appeal:

Notwithstanding any other pending claims filed in the same action, a party may appeal from an order or judgment adjudicating a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if the order or judgment would otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action. A party does not forfeit the right to appeal under this section if the party fails to immediately appeal from an order or judgment described in this section. An appeal from an order or judgment under this section shall not deprive the trial court of jurisdiction over any other claims pending in the same action.

N.C. Gen. Stat. § 50-19.1 (2017). In other words, this provision creates a kind of intermediate class of "quasi-interlocutory" orders that would be final if considered in isolation, but would technically not otherwise be "final" under Rule 54(b) because another related claim (or "issue") is still pending in the larger action. See id.

         In Comstock v. Comstock, this Court dismissed attempted interlocutory appeals from an injunction order and domestic relations order on the grounds that these types of orders "are not included on the list of immediately appealable interlocutory orders." 240 N.C.App. 304, 322, 771 S.E.2d 602, 615 (2015) (citing N.C. G.S. § 50-19.1). Based on this reasoning and interpretation of section 50-19.1, it appears this Court was guided by the doctrine of expressio unius est exclusio alterius, which, in the context of statutory construction, "provides that the mention of such specific exceptions implies the exclusion of others." Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498 (1987) (citations omitted). In other words, this reasoning in Comstock implies that only the types of orders specifically included on the list in Section 50-19.1-absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution-may be appealed pursuant to N.C. Gen. Stat. § 50-19.1. Not "specifically included on the list" of claims in section 50-19.1 are any of the provisions for attorney's fees included in Chapter 50. See, e.g., N.C. Gen. Stat. § 50-13.6 (2017) ("Counsel fees in actions for custody and support of minor children"); N.C. Gen. Stat. § 50-16.4 (2017) ("Counsel fees in actions for alimony, post-separation support"). Following the reasoning in Comstock and the doctrine of expresio unius est exlcusio alterius, it could be inferred that the legislature's intent in excluding orders for attorney's fees from section 50-19.1 means these issues are not appealable (when interlocutory) under this provision. See Comstock, 240 N.C.App. at 322-23, 771 S.E.2d at 615.

         However, Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013), which was decided in June 2013-two months before N.C. Gen. Stat. § 50-19.1 was enacted, see N.C. Sess. Laws 2013-411, § 2, eff. Aug. 23, 2013-possibly complicates this issue.

         In Duncan, the Supreme Court "clarif[ied] the effect of an unresolved request for attorney's fees on an appeal from an order that otherwise fully determines the action." 366 N.C. at 545, 742 S.E.2d at 800. The Supreme Court held that

[o]nce the trial court enters an order that decides all substantive claims, the right to appeal commences. Failure to appeal from that order forfeits the right. Because attorney's fees and costs are collateral to a final judgment on the merits, an unresolved request for attorney's fees and costs does not render interlocutory an appeal from the trial court's order.

Id. (emphasis added). In other words, (1) "attorney's fees" is a non-substantive "issue, " and not a substantive "claim" (at least in relation to a claim for alimony); and (2) entry of an alimony order constitutes entry of a final order for purposes of Rule 54(b), notwithstanding the fact that a related attorney's fees "issue" might still be pending. See id. at 546, 742 S.E.2d at 801 ("Though an open request for attorney's fees and costs necessitates further proceedings in the trial court, the unresolved issue does not prevent judgment on the merits from being final." (internal citations omitted)). Thus, per the analysis set forth in Duncan, a pending attorney's fees "issue" would not count as a pending "claim" for purposes of Section 50-19.1. See id; but see N.C. Sess. Laws 2013-411, § 2, eff. Aug. 23, 2013 (enacting N.C. Gen. Stat. § 50-19.1 two months after Duncan was decided). Notably, neither Duncan nor Comstock (nor any other case) has interpreted N.C. Gen. Stat. § 50-19.1 through the particular factual lens facing us in the instant appeal.

         Here, the trial court's order as to attorney's fees has effectively (and completely) disposed of the "issue" of attorney's fees relating to the parties' "claims" for child support, child custody, and post-separation support. These substantive "claims" (for child support, child custody, and post-separation support), see Duncan, 366 N.C. at 545-46, 742 S.E.2d at 800-01, have been fully litigated and decided, as has the "issue" of attorney's fees as it relates to the aforementioned claims. The parties' claims for equitable distribution, however, remain pending before the trial court. Thus, the question we are presented with is whether an order for attorney's fees, which completely disposes of that issue as it relates to other substantive claims, is immediately appealable pursuant to N.C. Gen. Stat. § 50-19.1; particularly where, as here, it is nevertheless "an order which completely disposes of one of several issues in a lawsuit, " and it arguably "affects a substantial right." See Case, 73 N.C.App. at 78, 325 S.E.2d at 663 ("[A]n order which completely disposes of one of several issues in a lawsuit affects a substantial right." (citation omitted)).

         In Case, the trial court's order for partial summary judgment "concluded that [a] separation agreement [between the plaintiff and the defendant] was valid" and therefore the agreement served as "a bar to the [defendant's] counterclaim for equitable distribution[.]" Id. at 78-79, 325 S.E.2d at 663. In other words, the order "completely dispose[d] of the issue of equitable distribution, " including the defendant's counterclaim for equitable distribution, "thereby affecting a substantial right of [the] defendant and rendering the appeal reviewable." Id.; see Honeycutt v. Honeycutt, 208 N.C.App. 70, 75, 701 S.E.2d 689, 692-93 (2010) ...

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