Simpson v. Simpson ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-864
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
MADELINE C. SIMPSON (Cloud),
Plaintiff,
v. Forsyth County
No. 95 CVD 6117
THURMOND H. SIMPSON, JR.,
Defendant.
Appeal by plaintiff from order entered 28 January 2013 by
Judge Laurie Hutchins in Forsyth County District Court. Heard
in the Court of Appeals 8 January 2014.
Vernon E. Cloud Jr. for plaintiff-appellant.
No brief filed on behalf of defendant-appellee.
DAVIS, Judge.
Madeline Simpson, now Madeline Cloud (“Plaintiff”), appeals
from the trial court’s 28 January 2013 order (1) setting aside a
prior order acknowledging Thurmond H. Simpson, Jr. (“Defendant”)
as the father of Plaintiff’s minor child; and (2) requiring the
parties to undergo genetic testing. After careful review, we
conclude that Plaintiff has failed to establish that her
-2-
interlocutory appeal implicates a substantial right.
Accordingly, we dismiss the appeal.
Factual Background
Plaintiff and Defendant were married on 10 August 1991 and
divorced on 5 September 1996. One child, “Thomas,”1 was born
during the marriage in February 1995. Plaintiff was awarded
primary physical custody of Thomas with Defendant having
visitation rights. On 26 September 1995, Defendant signed a
voluntary support agreement (“the Voluntary Support Agreement”)
in which he acknowledged paternity and agreed to make payments
to Plaintiff for the support of Thomas. The Voluntary Support
Agreement was approved by the trial court and filed on 26
September 1995.
On 15 April 2011, Defendant filed a motion to set aside his
acknowledgement of paternity contained in the Voluntary Support
Agreement pursuant to Rule 60 of the North Carolina Rules of
Civil Procedure. The motion alleged that while Defendant had
previously believed he was the natural father of Thomas, he had
recently “heard a rumor” that another man was, in fact, Thomas’
biological father. On this ground, Defendant asked the trial
court to immediately terminate his child support obligation.
1
“Thomas” is a pseudonym used to protect the identity of the
child.
-3-
Defendant attached the results of an at-home paternity test —
which purportedly excluded him as the father — to his motion.
On 21 November 2011, Defendant’s Rule 60 motion was heard
before the Honorable Chester C. Davis in Forsyth County District
Court. On 10 January 2012, Judge Davis entered an order denying
Defendant’s Rule 60 motion on the basis that it was untimely in
that it had been brought more than one year after the Voluntary
Support Agreement was entered.
On 5 June 2012, Defendant filed a second motion to set
aside his prior acknowledgement of paternity. In this motion,
Defendant sought relief based not only on Rule 60 but also
pursuant to N.C. Gen. Stat. §§ 49-14(h), 110-132, and 50-13.3.
Defendant attached a copy of the results of his at-home
paternity test to this motion as well.
Defendant’s second motion was heard in Forsyth County
District Court on 29 October 2012 before the Honorable Laurie
Hutchins. By order entered 28 January 2013, Judge Hutchins set
aside the acknowledgement of paternity contained in the
Voluntary Support Agreement and ordered the parties to submit to
genetic testing pursuant to N.C. Gen. Stat. §§ 49-14(h) and 8-
50.1 as well as Rule 35 of the North Carolina Rules of Civil
Procedure. Plaintiff appealed to this Court.
-4-
Analysis
Although Plaintiff did not raise the issue in her brief,
“whether an appeal is interlocutory presents a jurisdictional
issue, and this Court has an obligation to address the issue sua
sponte.” Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392,
651 S.E.2d 261, 263 (2007) (citation, quotation marks, and
brackets omitted). “A final judgment is one which disposes of
the cause as to all the parties, leaving nothing to be
judicially determined between them in the trial court.” Id.(citation omitted). Conversely, an order or judgment is
interlocutory if it does not settle all of the issues in the
case but rather “directs some further proceeding preliminary to
the final decree.” Heavner v. Heavner, 73 N.C. App. 331, 332,
326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d
610 (1985). Generally, there is no right of immediate appeal
from an interlocutory order. Paradigm Consultants, Ltd. v.
Builders Mut. Ins. Co., ___ N.C. App. ___, ___, 745 S.E.2d 69,
72 (2013). The prohibition against appeals from interlocutory
orders “prevents fragmentary, premature and unnecessary appeals
by permitting the trial court to bring the case to final
judgment before it is presented to the appellate courts.”
-5-
Russell v. State Farm Ins. Co., 136 N.C. App. 798, 800, 526
S.E.2d 494, 496 (2000) (citation and brackets omitted).
An interlocutory order may be appealed, however, if the
order implicates a substantial right of the appellant that would
be lost if the order was not reviewed prior to the issuance of a
final judgment. Guilford Cty. ex rel. Gardner v. Davis, 123
N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996). Our courts have
described a substantial right as one that “materially affect[s]
those interests which a man is entitled to have preserved and
protected by law: a material right.” Oestreicher v. Am. Nat’l
Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)
(citation and quotation marks omitted). It is the appellant’s
burden to show this Court that “the order deprives the appellant
of a substantial right which would be jeopardized absent a
review prior to a final determination on the merits.” Jeffreys
v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444
S.E.2d 252, 254 (1994).
Here, the trial court’s order is not a final judgment
because it does not dispose of the entire controversy between
the parties. While the trial court set aside Defendant’s prior
acknowledgement of paternity because it determined that
Defendant had successfully rebutted the presumption that he was
-6-
the natural father of Thomas, the trial court has not yet made a
judicial determination of paternity. Rather, the trial court
ordered the parties to submit to genetic testing, meaning that
an ultimate determination as to paternity will not be made until
some unspecified future date. Furthermore, the portion of
Defendant’s motion seeking relief from his child support
obligation remains unresolved, presumably to be determined once
the results of the genetic testing are submitted to the trial
court. As such, in order for this Court to have jurisdiction
over this interlocutory appeal, Plaintiff bears the burden of
establishing that a substantial right of hers is implicated.
See Ratchford v. C.C. Mangum Inc., 150 N.C. App. 197, 200, 564
S.E.2d 245, 248 (2002) (“The party desiring an immediate appeal
of an interlocutory order bears the burden of showing that such
appeal is necessary to prevent loss of a substantial right.”
(citation and quotation marks omitted)).
This Court has previously held that “an order requiring
parties and their minor child to submit to blood grouping
testing does not affect a substantial right and is, therefore,
interlocutory and not appealable.” Gardner, 123 N.C. App. at
529, 473 S.E.2d at 641; see Davie Cty. Dep’t of Social Servs. v.
Jones, 62 N.C. App. 142, 142, 301 S.E.2d 926, 927 (1983)
-7-
(dismissing defendant’s appeal from order directing him to
submit to blood grouping and comparison test to determine
paternity as interlocutory and not affecting substantial right).
Rule 28(b)(4) of the North Carolina Rules of Appellate
Procedure mandates that where an appeal is interlocutory, the
statement of the grounds for appellate jurisdiction contained
within an appellant’s brief “must contain sufficient facts and
argument to support appellate review on the ground that the
challenged order affects a substantial right.” N.C.R. App. P.
28(b)(4). “It is not the duty of this Court to construct
arguments for or find support for [an] appellant’s right to
appeal from an interlocutory order.” Jeffreys, 115 N.C. App. at
380, 444 S.E.2d at 254.
Plaintiff’s brief fails to acknowledge the interlocutory
nature of this appeal and presents no argument whatsoever that
the order affects a substantial right.2 Plaintiff has therefore
failed to meet her burden of establishing that a substantial
right would be lost or prejudiced unless an immediate appeal is
allowed. Accordingly, we dismiss Plaintiff’s appeal.
Conclusion
2
Indeed, in clear violation of the Appellate Rules, Plaintiff’s
brief contains no statement of any kind regarding the grounds
for appellate jurisdiction. See N.C.R. App. P. 28(b)(4).
-8-
For the reasons set forth above, Plaintiff’s interlocutory
appeal is dismissed.
DISMISSED.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).