Podrebarac v. Podrebarac ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-779
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
DONALD R. PODREBARAC,
Plaintiff,
v. Union County
No. 08 CVD 4423
BUNTIN S. PODREBARAC,
Defendant.
Appeal by appellant from orders entered 13 December 2012 by
Judge N. Hunt Gwyn in Union County District Court. Heard in the
Court of Appeals 11 December 2013.
Harkey Lambeth & Gunter, LLP, by Dorian H. Gunter and
Jeffrey S. Williams-Tracy, for plaintiff-appellant.
Woodruff Law Firm, P.A., by Jessica S. Bullock and Carolyn
J. Woodruff, for defendant-appellee.
BRYANT, Judge.
Plaintiff Donald R. Podrebarac appeals from the trial
court's orders denying his motions to enforce a mediated
settlement agreement and for a new trial and from the trial
court’s order awarding post-separation support to defendant
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Buntin S. Podrebarac. For the reasons set forth below, we
dismiss the appeal as interlocutory.
Plaintiff-husband Donald R. Podrebarac (“plaintiff”) and
defendant-wife Buntin S. Podrebarac (“defendant”) were married
on 24 October 1987, separated on 26 December 2007, and
subsequently divorced. On 18 December 2008, plaintiff filed a
complaint for child custody and equitable distribution.
Defendant filed an answer and counterclaim for child custody,
child support, equitable distribution, post-separation support,
alimony, and attorneys’ fees. Plaintiff and defendant then
underwent mediation resulting in an agreement1 signed by both
parties on 29 April 2009.
On 26 September 2011, plaintiff filed a motion for a
protective order and a motion to enforce the mediated settlement
agreement. On 13 April 2012, defendant filed a motion to
dismiss plaintiff’s motion to enforce the mediated settlement
agreement alleging that the agreement was not notarized, and
therefore, did not meet the requirements of N.C. Gen. Stat. §
50-20(d). The trial court, finding that the settlement
agreement was invalid, granted defendant’s motion to dismiss. A
1
We use the term “agreement” or “mediated settlement agreement”
when referring to the document in the record entitled “Mediation
Stipulations” (but referred to by various other names when used
by the parties).
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formal written order granting defendant’s motion to dismiss was
entered by the trial court on 24 August 2012.
Plaintiff filed a motion for a new trial and in the
alternative, a motion to reconsider or revise the order. On 13
December 2012, the trial court entered an order granting
defendant’s counterclaim against plaintiff for post-separation
support. At the same time, the trial court entered an order
denying plaintiff’s motion for a new trial and alternative
motion to reconsider or revise its 24 August 2012 order.
Plaintiff appeals.
_______________________
Plaintiff argues that the trial court erred: (I) by denying
plaintiff’s motion to enforce the mediated settlement agreement;
(II) by denying plaintiff’s motion for a new trial; and (III) by
entering an order for post-separation support.
Interlocutory appeal
Plaintiff concedes that the orders from which he appeals
did not dispose of his claims for child custody or equitable
distribution, and therefore, the orders are interlocutory. As
the trial court’s ruling did not dispose of plaintiff’s claims
for child custody and equitable distribution but instead only
disposes of plaintiff’s plea in bar to those claims as set forth
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in the mediated settlement agreement, the court’s ruling is
indeed interlocutory. Veazey v. City of Durham, 231 N.C. 357,
361—62, 57 S.E.2d 377, 381 (1950); see also Garris v. Garris, 92
N.C. App. 467, 469—70, 374 S.E.2d 638, 640 (1988) (holding that
a trial court’s ruling denying the defendant’s claim that the
plaintiff had waived her rights to equitable distribution and
alimony was interlocutory because the ruling only disposed of
the defendant’s plea at bar to the plaintiff’s claims for
equitable distribution and alimony).
Plaintiff argues he would be deprived of a substantial
right should we dismiss his appeal. Alternatively, plaintiff
asks that, should this Court not grant a right to appeal, we
treat his appeal as a petition for writ of certiorari and grant
discretionary review.
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. 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.
Tridyn Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 488, 251
S.E.2d 443, 445 (1979) (citation and ellipsis omitted).
[A]n interlocutory order can be immediately
appealed if the order is final as to some
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but not all of the claims or parties and the
trial court certifies there is no just
reason to delay the appeal [pursuant to]
N.C.R. Civ. P. 54(b). Second, an
interlocutory order can be immediately
appealed under N.C. Gen. Stat. §§ 1-277(a)[]
and 7A-27(d)(1)[] “if the trial court's
decision deprives the appellant of a
substantial right which would be lost absent
immediate review.”
Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695
(1996) (citation omitted).
An interlocutory order is immediately appealable when "the
challenged order affects a substantial right." N.C.R. App. P.
28(b)(4) (2013). To determine whether an interlocutory order is
immediately appealable "we utilize a two-part test, with the
first inquiry being whether a substantial right is affected by
the challenged order and the second being whether this
substantial right might be lost, prejudiced, or inadequately
preserved in the absence of an immediate appeal." Hamilton v.
Mortg. Info. Servs., 212 N.C. App. 73, 78, 711 S.E.2d 185, 189
(2011) (citations omitted). "The appellants must present more
than a bare assertion that the order affects a substantial
right; they must demonstrate why the order affects a substantial
right." Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274,
277—78, 679 S.E.2d 512, 516 (2009) (citation omitted).
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We now review each of plaintiff’s interlocutory issues to
determine if a substantial right exists that requires appellate
review at this time.
I.
In his motion to enforce the mediated settlement agreement,
plaintiff alleged that defendant wrongfully failed to comply
with the mediated settlement agreement after defendant ratified
the mediation stipulations with plaintiff. Plaintiff now
contends that the trial court order denying his motion to
enforce the mediated settlement agreement has affected a
substantial right. Plaintiff asserts that he was denied a right
to an evidentiary hearing on his motion, and that his right to a
hearing would be “irrevocably lost” absent an appeal.
Plaintiff’s argument lacks merit, as the mediated settlement
agreement was the product of mediation sessions between
plaintiff and defendant, rather than a formal adjudication by
the trial court. By ruling that the mediated settlement
agreement was unenforceable, the trial court did not prejudice
or prevent plaintiff from seeking further resolution of his
claims for child custody and equitable distribution. Rather,
the trial court’s denial of plaintiff’s motion to enforce the
mediated settlement agreement simply sends both parties back to
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their respective starting points to create a new enforceable
mediated settlement agreement. As such, plaintiff has failed to
show that the trial court’s order affected a substantial right.
Plaintiff’s first argument on appeal is dismissed.
II.
Plaintiff, acknowledging that the trial court’s denial of
his motion for a new trial is interlocutory, nevertheless argues
that the trial court erred in denying his motion for a new trial
because under Rule 59(a), by denying plaintiff the ability to
present evidence and witnesses as to the validity of the
mediated settlement agreement, the trial court both abused its
discretion and erred as a matter of law. Plaintiff’s argument,
similar to his first argument, fails to show how the trial
court’s order deprived plaintiff of a substantial right. By
finding the agreement unenforceable, the trial court has not
prejudiced or injured plaintiff such that he cannot proceed to
trial or proceed with new mediation sessions to create a new
settlement agreement. See Blackwelder v. State Dep’t of Human
Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983) (holding
that “avoidance of a rehearing or trial is not a ‘substantial
right’ entitling a party to an immediate appeal”). Plaintiff’s
second argument on appeal is dismissed.
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III.
Thirdly, plaintiff argues that our failure to address the
trial court’s granting of post-separation support to defendant
will put plaintiff at risk of inconsistent trial verdicts. We
disagree, as our determination that the trial court did not err
in finding the mediated settlement agreement unenforceable does
not expose plaintiff to the risk of inconsistent verdicts.
Rather, the invalidity of the agreement only exposes plaintiff
to the need to undergo either new mediation sessions or to seek
judicial determination of a settlement agreement.
Plaintiff cites Honeycutt v. Honeycutt, 208 N.C. App. 70,
701 S.E.2d 689 (2010), and Buffington v. Buffington, 69 N.C.
App. 483, 317 S.E.2d 97 (1984), as support for his contention
that the trial court’s award of post-separation support to
defendant puts plaintiff at risk of inconsistent trial verdicts.
In Honeycutt, both parties entered into a separation
agreement and property settlement. The plaintiff filed an
action against the defendant two years later seeking rescission
of the agreement, equitable distribution, child support and
attorneys’ fees. The defendant counterclaimed for child support
and restoration of the original agreement and filed a motion for
summary judgment. The trial court granted the defendant partial
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summary judgment as to the plaintiff’s claims for rescission and
equitable distribution. On appeal, we granted the plaintiff’s
interlocutory appeal because the trial court’s order granting
partial summary judgment affected the plaintiff’s substantial
rights regarding “piecemeal litigation.” Specifically, this
Court held that “the trial court's order completely disposed of
plaintiff's equitable distribution claim and has the effect of
‘preventing adjudication of defendant's counterclaim and
plaintiff's claims in a single lawsuit[.]’" Honeycutt, 208 N.C.
App. at 76, 701 S.E.2d at 693 (citation omitted).
In Buffington, both parties entered into a separation
agreement. The plaintiff then filed for specific performance of
the separation agreement; the defendant counterclaimed alleging
that the agreement was void, seeking equitable distribution.
Both parties filed motions for summary judgment as to the
enforceability of the agreement. The trial court granted the
plaintiff’s motion, holding that the agreement was enforceable.
As in Honeycutt, this Court allowed the defendant’s
interlocutory appeal, noting that as the grant of summary
judgment completely disposed of the defendant’s claim for
equitable distribution, it affected a substantial right.
Buffington, 69 N.C. App. at 486, 317 S.E.2d at 98—99 (“The trial
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court’s order [granting summary judgment] affects a substantial
right of defendant by preventing adjudication of defendant’s
counterclaim and plaintiff’s claims in a single lawsuit.”).
Honeycutt and Buffington are not applicable to the instant
matter. Here, plaintiff appeals from the trial court’s order
awarding post-separation support, an order which does not
dispose of any of plaintiff’s claims against defendant.
Moreover, “[t]his Court has explained that ‘[p]ostseparation
support is only intended to be temporary and ceases when an
award of alimony is either allowed or denied by the trial
court.’" Langdon v. Langdon, 183 N.C. App. 471, 474, 644 S.E.2d
600, 603 (2007) (citation omitted). As such, an order for
post-separation support is interlocutory. Id. “Further, a
trial court's findings and conclusions in connection with an
award of postseparation support are not binding in connection
with the ultimate outcome of the claim for alimony.” Wells v.
Wells, 132 N.C. App. 401, 411, 512 S.E.2d 468, 474 (1999).
Accordingly, as the trial court’s order awarding post-separation
support “is a temporary measure, it is interlocutory, it does
not affect a substantial right, and it is not appealable[,]”
plaintiff’s argument is not appealable. Rowe v. Rowe, 131 N.C.
App. 409, 411, 507 S.E.2d 317, 319 (1998).
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Petition for writ of certiorari
In the alternative, plaintiff petitions this Court for
certiorari, which we decline to grant. Having reviewed
plaintiff’s arguments for purposes of interlocutory review, it
is unlikely plaintiff would be granted any relief on appeal
should we allow substantive review of the issues plaintiff
brought forth in his brief.
Dismissed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).