Civil Practice - Interlocutory Appeal – Domestic Relations – Parent & Child – Custody Order – Attorney’s Fee Issue – Undecided

North Carolina Lawyers Weekly Staff//April 5, 2013//

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Hausle v. Hausle (Lawyers Weekly No. 13-07-0305, 15 pp.) (Douglas McCullough, J.) Appealed from Pitt County District Court (W. Turner Stephenson III, J.) N.C. App.

Holding: The analysis of the attorney’s fee issue under G.S. § 50-13.6 entails a review of the merits of the case; in this case, the trial court reserved the issue of attorney’s fees for further proceedings and did not certify its custody order for immediate appeal. Therefore, this appeal is interlocutory. Where the custody order does not place the well-being of the parties’ children at stake, it does not affect a substantial right.

Plaintiff appeals the denial of her motion to modify custody; we dismiss the appeal as interlocutory.

This court has never held that a custody order affects a substantial right except when the physical well-being of a child is at stake.

Plaintiff alleges the well-being of the children is at stake because of a lack of educational opportunities available to them and dental issues that they have suffered. Plaintiff asserts that these issues are urgent because the daughters are already in high school and there is limited time to remedy the error. These alleged circumstances fall well short of the level of physical well-being at stake contemplated in McConnell v. McConnell, 151 N.C. App. 622, 566 S.E.2d 801 (2002). Therefore, plaintiff has failed to show that a substantial right has been affected.

A review of Bumpers v. Community Bank of Northern Virginia, 364 N.C. 195, 695 S.E.2d 442 (2010), Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011), and Duncan v. Duncan, 732 S.E.2d 390 (2012), disc. review granted, 736 S.E.2d 186 (2013), leads this court to the conclusion that, where the trial court’s custody order was not certified, and where the order does not affect a substantial right, this appeal should be dismissed as interlocutory.

Under G.S. § 50-13.6, the award of attorney’s fees is not contingent on the outcome. The trial court’s analysis entails a review of the merits of the case, thus precluding finality of a custody order when it reserves the issue of attorney’s fees.

Dismissed.