in the Court of Appeals 6 February 2018.
by plaintiff from order entered 28 December 2016 by Judge
Lisa V.L. Menefee in Forsyth County District Court, No. 15
Law PLLC, by Brian E. Jones, for plaintiff-appellant.
Halvorsen Bradshaw, PLLC, by Ruth I. Bradshaw for
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
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
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.
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.
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.
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.
same day, the trial court entered a show cause order,
ordering plaintiff to appear in Forsyth County District Court
on 25 July 2016.
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
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.
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.
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
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
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
"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).
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.
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
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.
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.
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)).
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) ...