Brosnan v. Cramer ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 22-654
Filed 04 April 2023
Wake County, No. 20-CVD-11594
KATHERINE AIMEE BROSNAN, Plaintiff,
v.
GEORGE GEOFFREY CRAMER, Defendant.
Appeal by Defendant from Order entered 8 February 2022 by Judge Anna E.
Worley in District Court, Wake County. Heard in the Court of Appeals 24 January
2023.
Parker Bryan Britt Tanner & Jenkins, PLLC, by Amy L. Britt, Stephanie T.
Jenkins, and Alicia J. Journey, for Plaintiff-Appellee.
Connell & Gelb, PLLC, by Michelle D. Connell, Raleigh, for Defendant-
Appellant.
STADING, Judge.
George Geoffrey Cramer (“Defendant”) appeals from an order entered 8
February 2022 granting Katherine Aimee Brosnan (“Plaintiff”) postseparation
support. Defendant filed a Petition for Writ of Certiorari on 7 October 2022. Plaintiff
filed a Motion to Dismiss Defendant’s Appeal on 17 August 2022. Based on the
foregoing reasons, we grant Defendant’s Petition for Writ Certiorari and deny
Plaintiff’s Motion to Dismiss Appeal. We vacate and remand the Order of the trial
court with instructions consistent with this Opinion.
BROSNAN V. CRAMER
Opinion of the Court
I. Factual and Procedural History
Defendant and Plaintiff married on 1 November 2008. Plaintiff filed for
alimony, attorney’s fees, child custody, child support, equitable distribution, and
postseparation support on 15 October 2020. Defendant filed his answer,
counterclaims, and affirmative defenses on 20 January 2021. Plaintiff filed her reply
on 15 March 2021. Thereafter, on 8 April 2021, Plaintiff filed a notice of voluntary
dismissal specifically stating “[t]he Plaintiff gives notice of voluntary dismissal
without prejudice in this case of her claim for postseparation support as to the
Defendant.”
Under a separate case number, Defendant filed a complaint seeking absolute
divorce on 19 April 2021 pursuant to N.C. Gen. Stat. § 50-6. Plaintiff accepted service
of the complaint on 27 April 2021. Plaintiff did not attempt to revive the
postseparation support claim by answering the complaint with a counterclaim or by
any other means prior to the entry of judgment of absolute divorce. In the absence of
a responsive pleading, pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure, Defendant filed a Motion for Summary Judgment on the claim for absolute
divorce on 9 June 2021. Defendant’s Motion for Summary Judgment was granted on
2 July 2021. Twenty days later, on 22 July 2021, Plaintiff filed a motion in the cause
for postseparation support in an effort to reinstate the previously dismissed
postseparation support claim.
In response to Plaintiff’s Motion in the Cause filed to reestablish a claim for
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Opinion of the Court
postseparation support, Defendant filed a Motion to Dismiss. On 8 February 2022
the trial court denied Defendant’s Motion to Dismiss Plaintiff’s claim for
postseparation support. Additionally, the trial court ordered Defendant to pay
monthly postseparation support from 1 December 2021 until “the death of either
party, Plaintiff’s remarriage, Plaintiff’s cohabitation, the dismissal of Plaintiff’s
alimony claim, or the entry of an order resolving Plaintiff’s alimony claim, whichever
occurs first.” The trial court ordered a stay of the postseparation support portion of
the judgment pending disposition of this appeal.
Defendant filed and served a notice of appeal on 17 February 2022. Plaintiff
filed a motion to dismiss Defendant’s interlocutory appeal on 17 August 2022,
claiming that the appealed order neither affected a substantial right nor fell within
a category permitting immediate appeal. Defendant filed a notice of Rule 60(b)
motion on 7 October 2022, requesting this Court to delay consideration of his appeal
from the trial court’s order until the trial court entered an order indicating how it
would be inclined to rule on the Rule 60 motion were this appeal not pending. This
Court denied Defendant’s request for delayed consideration by order on 20 October
2022. Additionally, Defendant filed a Petition for Writ of Certiorari on 7 October
2022.
II. Jurisdiction
“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
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Opinion of the Court
to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C.
357, 362, 57 S.E.2d 377, 381 (1950) (citations omitted). Defendant acknowledges the
appeal of postseparation support based on subject-matter jurisdiction is
interlocutory. When an appeal is interlocutory, Defendant’s avenues for appellate
review are limited. See N.C. Gen. Stat. § 50-19.1.
“An interlocutory order may be immediately appealed in
only two circumstances: (1) when the trial court, pursuant
to N.C.R. Civ. P. 54(b), enters a final judgment as to one or
more but fewer than all of the claims or parties and
certifies that there is no just reason to delay the appeal; or
(2) when the order deprives the appellant of a substantial
right that would be lost absent appellate review prior to a
final determination on the merits.”
Akers v. City of Mount Airy, 175 N.C. App. 777, 779, 625 S.E.2d 145, 146 (2006). In
the present matter, there is not a Rule 54(b) certification on the order for
postseparation support. Additionally, existing case law has established that a
“postseparation support order is a temporary measure, it is interlocutory, it does not
affect a substantial right, and it is not appealable.” Rowe v. Rowe, 131 N.C. App. 409,
411, 507 S.E.2d 317, 319 (1998).
However, this Court has the discretion to issue extraordinary writs “to
supervise and control the proceedings of any of the trial courts of the General Court
of Justice” pursuant to N.C. Gen. Stat. § 7A-32(c) (2022). “The writ of certiorari may
be issued in appropriate circumstances by either appellate court to permit review of
the judgments and orders of trial tribunals when . . . no right of appeal from an
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BROSNAN V. CRAMER
Opinion of the Court
interlocutory order exists . . . .” N.C. R. App. P. 21. Moreover, “the appellate courts
of this State in their discretion may review an order of the trial court, not otherwise
appealable, when such review will serve the expeditious administration of justice or
some other exigent purpose.” Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d
30, 34 (1975). After careful review of the question presented, we grant Defendant’s
Petition for Writ of Certiorari.
III. Analysis
Defendant argues that a recent ruling by this Court in Smith v. Smith, 282
N.C. App. 735, 870 S.E.2d 154 (2022), resolves the issue before us and eliminates the
need consider the current appeal. However, the facts of Smith are distinguishable
from this case in that “[n]o formal claims for postseparation support, alimony, or
equitable distribution were filed until after the judgment of absolute divorce was
entered . . . .” Id. The present dispute diverges factually in that the claim for
postseparation support was filed and voluntarily dismissed by Plaintiff before the
judgement of absolute divorce was entered. Thus, we consider the merits of the
appeal.
Here, despite Plaintiff’s dismissal of the postseparation support claim prior to
the entry of absolute divorce, the trial court denied Defendant’s Motion to Dismiss
and ordered postseparation support on 8 February 2022. The Order specifically
decreed “[b]eginning December 1, 2021 and continuing on the first day of each month
thereafter, Defendant shall pay [a specific amount of] postseparation support to
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Opinion of the Court
Plaintiff[.]” Furthermore, the trial court held that “[t]he postseparation support
payments are stayed pending appeal of this order.” With respect to the trial court’s
order on postseparation support, we consider the trial court’s findings of fact to be
supported by competent evidence and no further factual development to be required.
See Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962). However,
issues of statutory interpretation are questions of law, fully reviewable under a de
novo standard of review. See In re Summons Issued to Ernst & Young, LLP, 363 N.C.
612, 616, 684 S.E.2d 151, 154 (2009).
As Defendant correctly points out, “[b]ecause postseparation orders are
interlocutory, there is little case law addressing this very common, independent
claim.” Although no specific case law was cited or referenced, the trial court ordered
postseparation support on 8 February 2022 by finding:
[C]onsidering the purposes of postseparation support (i.e.,
to provide temporary support pending the award or denial
of alimony), the case law surrounding alimony and the
language of N.C. Gen. Stat. § 50-16.1A(4), postseparation
support in this action is not foreclosed. N.C. Gen. Stat. §
50-16.2A clearly states that you can raise postseparation
support by motion. At the time of the divorce, Plaintiff’s
alimony claim remained pending, and Defendant was on
notice that there was a claim for spousal support pending
in this matter.
And in accordance with the North Carolina Rule of Civil Procedure addressing
dismissal of actions, absent a more specific statute, a claim dismissed without
prejudice would normally survive:
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Opinion of the Court
[A]n action or any claim therein may be dismissed by the
plaintiff without order of court . . . . Unless otherwise stated
in the notice of dismissal or stipulation, the dismissal is
without prejudice . . . . If an action commenced within the
time prescribed therefor, or any claim therein, is dismissed
without prejudice under this subsection, a new action
based on the same claim may be commenced within one
year after such dismissal[.]
N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2022).
However, the text of the statute entitled “The effects of absolute divorce”
speaks more directly to the issue presented to this Court:
A divorce obtained pursuant to G.S. 50-5.1 or G.S. 50-6
shall not affect the rights of either spouse with respect to
any action for alimony or postseparation support pending
at the time the judgment for divorce is granted.
Furthermore, a judgment of absolute divorce shall not
impair or destroy the right of a spouse to receive alimony
or postseparation support or affect any other rights
provided for such spouse under any judgment or decree of
a court rendered before or at the time of the judgment of
absolute divorce.
N.C. Gen. Stat. § 50-11(c) (2022) (emphasis added).
Similarly, the language contained in N.C. Gen. Stat. § 50-19 (2022) addresses the
“[m]aintenance of certain actions[,]” including claims of postseparation support. It
states that “[n]otwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action
described in subdivision (a)(1) through (a)(5), of this section that is filed as an
independent, separate action may be prosecuted during the pendency of an action for
divorce under G.S. 50-5.1 or G.S. 50-6. Id. (emphasis added).
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Opinion of the Court
This case presents a conflict between a generally applicable provision of the
North Carolina Rules of Civil Procedure and the more specific sections of Chapter 50
of the North Carolina General Statutes. To resolve such contradictions, our appellate
courts have consistently applied a canon of statutory construction known as generalia
specialibus non derogant. “North Carolina’s appellate courts have repeatedly
recognized that ‘[w]here one of two statutes might apply to the same situation, the
statute which deals more directly and specifically with the situation controls over the
statute of more general applicability.’” Perry v. GRP Fin. Servs. Corp., 196 N.C. App.
41, 49, 674 S.E.2d 780, 785 (2009) (citation omitted). Accordingly, since N.C. Gen.
Stat. § 50-11(c) and N.C. Gen. Stat. § 50-19 specifically address the voluntarily
dismissed claim at issue in this case, the language in those statutes are controlling.
Having settled the appropriate controlling statutory authority, we must now
consider the text of those statutes and determine its application in this particular
setting. This Court must review the words chosen by the General Assembly to ensure
that both the purpose and the intent of the legislation are effectuated. See Electric
Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991).
When the language used is clear and unambiguous, this Court must refrain from
judicial construction and accord words undefined in the statute their plain and
definite meaning. Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 466, 232
S.E.2d 184, 193 (1977). An application of the aforementioned principle requires
consideration of the plain meaning of the words used in the more controlling statutes.
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Opinion of the Court
Specifically, we are charged with acknowledging the plain meaning of the statutory
language “postseparation support pending at the time the judgment for divorce is
granted” in N.C. Gen. Stat. § 50-11(c) (2022) (emphasis added) and “action may be
prosecuted during the pendency of an action for divorce” in N.C. Gen. Stat. § 50-19(2022) (emphasis added).
Merriam-Webster defines “pending” as “not yet decided; being in continuance.”
Pending, Merriam-Webster Dictionary (11th ed. 2003). The use of “pending” and
“pendency” indicates that the General Assembly was referring to claims that remain
active at the time a judgment for divorce is granted. “It is presumed that the
legislature intended each portion of [a statute] to be given full effect and did not
intend any provision to be mere surplusage.” Porsh Builders, Inc. v. Winston-Salem,
302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981). The General Assembly’s use of the
words “pending” and “pendency” in both statutes is not coincidental, nor is it mere
surplusage. Here, Plaintiff’s claim for postseparation support was voluntarily
dismissed and not reinstated before the judgment for divorce was granted, so it could
not have been pending. Consequently, the trial court was divested of subject-matter
jurisdiction to enter an order awarding postseparation support. For these reasons,
we conclude the trial court erred in denying Defendant's Motion to Dismiss Plaintiff’s
claim for postseparation support.
III. Conclusion
Since the trial court lacked subject-matter jurisdiction to award Plaintiff
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Opinion of the Court
postseparation support, the trial court erred in denying Defendant’s Motion to
Dismiss. As such, we vacate the trial court’s Order and remand with instructions to
grant Defendant’s Motion to Dismiss.
VACATED AND REMANDED.
Judges GORE and RIGGS concur.
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