Campbell v. Campbell

NO. COA14-329
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
SUZANNE DAVIS CAMPBELL,
Plaintiff,
v. Forsyth County
No. 13 CVD 3111
WILLIAM TAYLOR CAMPBELL, III,
Defendant.
Appeal by plaintiff from order entered 21 October 2013 by
Judge William B. Reingold in Forsyth County District Court.
Heard in the Court of Appeals 11 September 2014.
Allman Spry Davis Leggett & Crumpler, P.A., by Joslin
Davis, Loretta C. Biggs and Anna E. Warburton, for
plaintiff-appellant.
Wilson, Helms & Cartledge, LLP, by Gray Wilson and Lorin J.
Lapidus, and Morrow, Porter, Vermitsky & Fowler, PLLC, by
John F. Morrow, Sr. and John C. Vermitsky, for defendant-
appellee.
DIETZ, Judge.
Plaintiff Suzanne Davis brings this interlocutory appeal
from the trial court’s order vacating her judgment of absolute
divorce under Rule 60(b) of the Rules of Civil Procedure. The
trial court, exercising its discretion under Rule 60(b), set
aside Ms. Davis’ divorce judgment so that her ex-husband William
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Campbell could assert a belated claim for equitable
distribution.
This Court has held that an appeal from a trial court order
setting aside an absolute divorce judgment “is interlocutory and
subject to dismissal.” See Baker v. Baker, 115 N.C. App. 337,
339, 444 S.E.2d 478, 480 (1994). Applying this precedent, our
Court recently granted a motion to dismiss for lack of appellate
jurisdiction in an appeal with facts nearly identical to those
presented here. See Steele v. Steele, No. COA 14-231 (N.C. App.
2014). Mr. Campbell did not file a motion to dismiss this
appeal, but we are obliged to review our own jurisdiction in
every case. We hold that, although there may be factual
circumstances in which the grant of a Rule 60(b) motion setting
aside a divorce judgment affects a substantial right, Ms. Davis
did not make a sufficient showing in this case. Accordingly, we
dismiss this appeal for lack of jurisdiction.
Factual Background
After a decade of marriage, Plaintiff Suzanne Davis and
Defendant William Campbell separated on 11 May 2012. On 16
November 2012, Ms. Davis filed a complaint for equitable
distribution, among other claims. Mr. Campbell filed an answer
and counterclaim in that action, but mistakenly failed to assert
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his own claim for equitable distribution. Both parties engaged
in several months of vigorous discovery and motions practice on
the issue of equitable distribution.
On 13 May 2013, Ms. Davis filed a separate complaint for
absolute divorce and to resume use of her maiden name. On 1
July 2013, the trial court granted Ms. Davis’ unopposed motion
for summary judgment on that absolute divorce claim.
At some point during this process, Ms. Davis determined
that it was no longer in her interests to pursue equitable
distribution, although neither party’s brief explains precisely
why this was so. Just over a month after obtaining her absolute
divorce judgment, Ms. Davis voluntarily dismissed her equitable
distribution claim. Under North Carolina law, the entry of an
absolute divorce judgment bars any new claims for equitable
distribution. See N.C. Gen. Stat. § 50-11(e) (2013). As a
result, although Mr. Campbell still desired to complete the
equitable distribution process, Ms. Davis’ voluntary dismissal
of her own claim (the only pending equitable distribution claim)
permanently ended all equitable distribution litigation.
Mr. Campbell promptly filed a motion to set aside the
divorce judgment under Rule 60(b) of the Rules of Civil
Procedure. He contended that his failure to timely assert his
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own claim for equitable distribution before entry of the
absolute divorce judgment was the result of excusable neglect.
Specifically, he asserted that, at the time he filed his initial
counterclaim in the equitable distribution action, his counsel
had recently given birth to a premature baby who weighed less
than two pounds. The child was hospitalized with life-
threatening conditions through much of this litigation. Mr.
Campbell argued that he instructed his counsel to file a claim
for equitable distribution and that his counsel, distracted by
her newborn’s medical needs, mistakenly thought she had done so.
On 21 October 2013, the trial court granted Mr. Campbell’s
Rule 60(b) motion in an order containing detailed findings of
fact and conclusions of law. The court set aside the absolute
divorce judgment and ordered Mr. Campbell to file an answer and
counterclaim for equitable distribution within 30 days. Ms.
Davis appealed the trial court’s order that same day. This
Court allowed Ms. Davis’ petition for a writ of supersedeas and
stayed the trial court’s Rule 60(b) order pending disposition of
this appeal.
Analysis
Ordinarily, this Court hears appeals only after entry of a
final judgment that leaves nothing further to be done in the
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trial court. See Steele v. Hauling Co., 260 N.C. 486, 491, 133
S.E.2d 197, 201 (1963). An interlocutory order entered before
final judgment is immediately appealable “in only two
circumstances: (1) if the trial court has certified the case for
appeal under Rule 54(b) of the Rules of Civil Procedure; and (2)
when the challenged order affects a substantial right of the
appellant that would be lost without immediate review.”
Robinson v. Gardner, 167 N.C. App. 763, 767, 606 S.E.2d 449, 452
(2005) (quotation marks omitted).
The trial court’s Rule 60(b) order in this case is a
textbook example of a non-final, interlocutory order; it took an
otherwise final judgment and re-opened it, requiring “further
action by the trial court in order to settle and determine the
entire controversy.” Veazey v. City of Durham, 231 N.C. 357,
362, 57 S.E.2d 377, 381 (1950); see also Metcalf v. Palmer, 46
N.C. App. 622, 624, 265 S.E.2d 484, 484 (1980) (holding that
orders granting a Rule 60(b) motion are, by their nature,
interlocutory). Thus, the trial court’s order in this case is
appealable only if it is properly certified under Rule 54(b) or
if it affects a substantial right.
Ms. Davis first asserts that the trial court’s order is
appealable because “[t]he trial court entered a Certification of
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Order for Immediate Appeal” under Rule 54(b) in this case. And,
indeed, the trial court entered an order in this case entitled
“Certification of Order for Immediate Appellate Review.” That
order purports to authorize an immediate appeal under Rule 54(b)
of the Rules of Civil Procedure.
But Rule 54(b) does not apply here. Under Rule 54(b), a
trial court may certify a case for immediate appeal when it
enters “a final judgment as to one or more but fewer than all of
the claims or parties” in the case. See N.C. Gen. Stat. § 1A-1,
Rule 54(b). The Rule 60(b) order from which Ms. Davis appeals
did not enter a final judgment on some but not all claims;
rather, it set aside an earlier final judgment under Rule 60(b),
re-opening the case in its entirety. Thus, the trial court’s
order could not properly be certified under Rule 54(b).
It is well-settled that the trial court’s mistaken
certification of a non-final order under Rule 54(b) is
ineffective and does not confer appellate jurisdiction on this
Court. See, e.g., First Atl. Mgmt. Corp. v. Dunlea Realty Co.,
131 N.C. App. 242, 248, 507 S.E.2d 56, 61 (1998). Accordingly,
we reject Ms. Davis’ argument that her appeal is properly before
us based on the trial court’s improper Rule 54(b) certification.
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Next, Ms. Davis asserts that the trial court’s Rule 60(b)
order affects a substantial right. This Court, and our Supreme
Court, repeatedly have held that Rule 60(b) motions setting
aside the entry of summary judgment (as happened here) do not
affect a substantial right. See, e.g., Waters v. Qualified
Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978);
Braun v. Grundman, 63 N.C. App. 387, 388, 304 S.E.2d 636, 637
(1983); Robinson v. Gardner, 167 N.C. App. 763, 768, 606 S.E.2d
449, 452 (2005). In Baker, this Court acknowledged that an
appeal from a “trial court’s order setting aside the judgment of
absolute divorce and permitting defendant to file her answer and
counterclaim for equitable distribution” was “interlocutory and
subject to dismissal.” 115 N.C. App. at 339, 444 S.E.2d at 480.
Relying on this precedent, this Court recently dismissed an
appeal from a Rule 60(b) order in an absolute divorce case
involving facts nearly identical to both Baker and the present
case. See Steele v. Steele, No. COA 14-231 (N.C. App. 2014).
Ms. Davis argues that this precedent is not controlling
because the trial court’s Rule 60(b) order is “analogous” to the
denial of a motion based on collateral estoppel, which affects a
substantial right. See Hillsboro Partners LLC v. City of
Fayetteville, ___ N.C. App. ___, ___, 738 S.E.2d 819, 823
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(2013). This is so, according to Ms. Davis, because of the
effect of Section 50-11(e) of the General Statutes. Section 50-
11(e) states that “[a]n absolute divorce obtained within this
State shall destroy the right of a spouse to equitable
distribution . . . unless the right is asserted prior to
judgment of absolute divorce.” N.C. Gen. Stat. § 50-11(e)
(2013). Ms. Davis argues that the trial court’s Rule 60(b)
order is immediately appealable because, as a consequence of
§ 50-11(e) and the entry of her absolute divorce judgment, Mr.
Campbell was “effectively collaterally estopped as a matter of
law from asserting a new equitable distribution claim.”
We cannot accept this argument because it ignores why our
appellate courts hold that denial of a motion based on
collateral estoppel affects a substantial right. Collateral
estoppel is intended to “prevent repetitious lawsuits.” Turner
v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773
(2009). It ensures that parties (or those in privity) are not
forced to re-litigate issues that were fully litigated and
actually determined in previous legal actions. Id. Our
appellate courts have concluded that an order denying a motion
based on collateral estoppel is immediately appealable because
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“parties have a substantial right to avoid litigating issues
that have already been determined by a final judgment.” Id.
That is not the situation here. The trial court’s order
will not force Ms. Davis to re-litigate equitable distribution
issues that already were determined by a court in an earlier
proceeding. Indeed, in the only similar proceeding between the
parties, Ms. Davis voluntarily dismissed her equitable
distribution claim, preventing the trial court from determining
that issue on the merits.
In effect, Ms. Davis argues not that she is compelled to
re-litigate an issue previously determined by a court, but
instead that she must fully litigate—for the first time—an issue
that she thought was precluded by the judgment she obtained.
But that argument can be made in virtually every Rule 60(b) case
and our appellate courts have long rejected it as a basis for
immediate appeal. See Waters, 294 N.C. at 208, 240 S.E.2d at
344; Robinson, 167 N.C. App. at 768, 606 S.E.2d at 452. In
short, because no court has yet adjudicated the parties’
equitable distribution claim, Ms. Davis cannot rely on our
collateral estoppel precedent to immediately appeal the trial
court’s Rule 60(b) order.
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Ms. Davis also argues that the trial court’s order results
in “the possibility of having to litigate two separate equitable
distribution cases on the same claims with inconsistent
verdicts.” But Ms. Davis voluntarily dismissed her own
equitable distribution claim after obtaining her absolute
divorce judgment—meaning there was no verdict on that claim.
See N.C. Gen. Stat. § 1A-1, Rule 41(a) (dismissal without
prejudice is not “an adjudication upon the merits”). Simply
put, the trial court’s Rule 60(b) order does not expose Ms.
Davis to the risk of a second, inconsistent equitable
distribution verdict because there was never a first equitable
distribution verdict.
Finally, Ms. Davis argues that she might “be forced to take
steps to invalidate the true representations she has made in
reliance on the Divorce Judgment to establish herself as a
single individual.” But she does not explain how changing those
“true representations” about her marital status would rise to
the level of affecting a substantial right. From this record,
it is impossible to tell whether this would be a complicated
process or something as simple as filling out some additional
paperwork. As this Court has repeatedly held, “[i]t is not the
duty of this Court to construct arguments for or find support
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for appellant’s right to appeal from an interlocutory order;
instead, the appellant has the burden of showing 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).
Moreover, Ms. Davis has provided no reason why she could
not renew her motion for entry of the absolute divorce judgment
as soon as Mr. Campbell asserts his claim for equitable
distribution. The trial court already considered and granted
that motion once before, and likely would do so promptly a
second time. Thus, the time period in which Ms. Davis would be
deprived of her previously entered divorce judgment likely would
be exceedingly short. Ms. Davis offers no evidence or argument
to the contrary. Accordingly, we hold that Ms. Davis “has not
met [her] burden of showing this Court that the order deprives
[her] of a substantial right.” Allen v. Stone, 161 N.C. App.
519, 522, 588 S.E.2d 495, 497 (2003).
In dismissing this appeal, we do not suggest that no
litigant can satisfy the substantial rights test in similar
circumstances. We can imagine a number of specific factual
circumstances in which a Rule 60(b) motion setting aside a
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judgment for absolute divorce, and effectively remarrying the
parties, might affect a substantial right. But “[t]he extent to
which an interlocutory order affects a substantial right must be
determined on a case-by-case basis.” Hamilton v. Mtge. Info.
Serv., Inc., 212 N.C. App. 73, 78, 711 S.E.2d 185, 189 (2011).
Here, as in the Steele appeal that we dismissed several months
ago, the appellant did not make a sufficient showing to satisfy
the substantial rights test.
Conclusion
For the reasons discussed above, we dismiss this appeal for
lack of appellate jurisdiction. We also decline Ms. Davis’
request to construe her appellate filings as a petition for a
writ of certiorari. Ms. Davis will have a full and fair
opportunity for appellate review of the trial court’s Rule 60(b)
order after entry of final judgment in this case. Thus,
certiorari is not appropriate here. See Sood v. Sood, ___ N.C.
App. ___, ___, 732 S.E.2d 603, 609, appeal dismissed, 366 N.C.
417, 735 S.E.2d 336 (2012).
DISMISSED.
Judges STEELMAN and GEER concur.