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Bezzek v. Bezzek

Court of Appeals of North Carolina

February 19, 2019

MARK STEVEN BEZZEK, Plaintiff
v.
SHERRY LEE BEZZEK, Defendant.

          Heard in the Court of Appeals 30 January 2019.

          Appeal by defendant from order entered 27 February 2018 by Judge Joseph M. Buckner in District Court, Orange County. No. 16 CVD 493

          No brief filed for plaintiff-appellee.

          M. Noah Oswald, for defendant-appellant.

          STROUD, JUDGE.

         In April of 2016, plaintiff filed a complaint for absolute divorce and equitable distribution. On 31 May 2016, defendant filed an answer to the complaint which admitted the allegations relevant to absolute divorce but also included a motion to dismiss the claim for equitable distribution, alleging the parties had entered into a "Separation Agreement" ("Agreement") which "addressed the matters of equitable distribution" and thus "waived their right to equitable distribution by the express terms thereof." On 28 June 2016, the trial court entered an order of absolute divorce acknowledging the Agreement but ultimately reserving the issue of equitable distribution for further proceedings.

         On 2 December 2016, plaintiff filed a motion to rescind or set aside Agreement based upon fraud, duress, undue influence, Wife's failure to disclose assets, unconscionability, and in the alternative, impossibility of performance. Husband also filed a motion for establishment of child support, alleging that he was unable to pay the child support established by the Agreement and requesting the trial court to set child support according to the North Carolina Child Support Guidelines. The trial court held a hearing on Husband's motion to set aside the Agreement on 23 August, 5 September, and 28 September 2017, and on 27 February of 2018, the trial court entered an order with extensive findings of fact regarding Wife's fraud; failure to disclose many assets to Husband, in breach of paragraph 14 of the Agreement; duress; undue influence; unconscionability; and impossibility. The trial court concluded that Husband was entitled to relief and that the Agreement was void. The trial court decreed that:

1. The June 25, 2015 Contract of Separation and Martial Settlement Agreement is rescinded, set aside, and void and of no legal effect;
2. Plaintiff may proceed on his claim of Equitable Distribution.

         Defendant filed a notice of appeal from the 27 February 2018 order. In the "STATEMENT OF GROUNDS FOR APPELLATE REVIEW" in her brief, Wife claims simply that "Judge Buckner's February 27, 2018 Order is a final judgment from a district court in a civil action, and appeal therefore lies to the Court of Appeals pursuant to N.C. Gen. Stat. § 7A-27(b)." But the order is not a final order, since the equitable distribution claim is still pending before the trial court.[1]

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be determined between them in the trial court. An interlocutory order, on the other hand, 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.

Cagle v. Teachy, 111 N.C.App. 244, 246-47, 431 S.E.2d 801, 803 (1993) (citation omitted).

When an appeal is interlocutory and not certified for appellate review pursuant to Rule 54(b), the appellant must include in the statement of grounds for appellate review sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right. Otherwise, the appeal is subject to dismissal.

Peters v. Peters, 232 N.C.App. 444, 447, 754 S.E.2d 437, 440 (2014) (citation, quotation marks, and ...


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