Walleshauser v. Walleshauser

397 S.E.2d 371 (1990) 100 N.C. App. 594

Kathy WALLESHAUSER (Evans), Plaintiff-Appellee,
v.
Jack G. WALLESHAUSER, Jr., Defendant-Appellant.

No. 9015DC321.

Court of Appeals of North Carolina.

November 6, 1990.

Moseley & Whited, P.A. by G. Keith Whited, Grahams, for plaintiff-appellee.

Hatfield & Hatfield by Kathryn K. Hatfield, Greensboro, for defendant-appellant.

ARNOLD, Judge.

Defendant first argues the trial court erred in its order retaining jurisdiction to hear the child custody issue. The order from which defendant appeals is interlocutory and is not properly before us.

An interlocutory order is one that does not determine the issues, but directs some further proceeding preliminary to a final decree. Smart v. Smart, 59 N.C. App. 533, 297 S.E.2d 135 (1982). No appeal lies from an interlocutory order unless the order deprives the appellant of a substantial right which he would lose if the order is not reviewed before the final judgment.

Dunlap v. Dunlap, 81 N.C.App. 675, 676, 344 S.E.2d 806, 807, review denied, 318 N.C. 505, 349 S.E.2d 859 (1986).

The trial court's order retaining jurisdiction to determine custody is not a final determination of the issue involved; rather it determines where the children's custody issue will be heard, which is preliminary to a final decree. We hold the portion of the order retaining jurisdiction to be interlocutory in nature. No substantial right of defendant is affected which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits. Id.

Defendant next contends the trial court erred in holding him in contempt for failure to comply with a previous visitation order. "Review in contempt proceedings is limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986).

Defendant testified he did not allow plaintiff to visit the children during holidays. He further testified to his belief that his presence during her visits was necessary. Competent evidence supports the trial court's findings of defendant's failure to comply with the previous visitation order and of his present ability to comply with this order. These findings are therefore conclusive on appeal, Weaver v. Weaver, 88 N.C.App. 634, 364 S.E.2d 706, review denied, 322 N.C. 330, 368 S.E.2d 875 (1988), and they also support the conclusion of law that defendant was in contempt of the visitation order.

The portion of the order finding defendant to be in contempt is upheld. Defendant's appeal from the remainder of the trial court's order retaining jurisdiction is premature and must be dismissed. The trial court's order of 22 December 1989 is

Affirmed.

HEDRICK, C.J., and PHILLIPS, J., concur.