Court says ‘not now’ to mother’s appeal of custody order

The North Carolina Court of Appeals has offered guidance to attorneys about when they can appeal a domestic relations order. In the process, it parsed conflicting state case law that has perplexed some attorneys—and also, it would seem, the court’s judges.

Edward and Celeste Hausle separated in 2003 and agreed to share joint legal custody of their daughters, with Edward receiving primary custody and Celeste receiving secondary custody and paying child support. In May 2011, Celeste filed a motion to gain custody and child support, and recoup attorneys’ fees. The motion was heard in Pitt County court that August. The same day, the court heard a motion by Edward to hold Celeste in contempt of the existing custody order.

In January 2012, the court denied Celeste’s motion to modify custody and reserved its opinion on child support, contempt and attorneys’ fees for future proceedings. Celeste immediately appealed the denial of her custody motion. The appeals court, however, declined to consider her appeal because it was brought before the trial court had reached a decision on all the motions in the case.

Ordinarily, courts will not consider such interlocutory appeals unless the trial court certifies its decision for an immediate appeal, or if a delay would deprive the party making the appeal of a substantial right. The trial court in the Hausles’ case did not certify their case for immediate appeal. Celeste argued that the other pending motions did not actually render her appeal of the custody order interlocutory, so no certification was needed.

The court had to parse three cases that were not easily reconciled. In 2010, in Bumpers, the state Supreme Court said the Court of Appeals could hear a case that the trial judge certified for immediate appeal, even though the trial court had not resolved a motion for attorneys’ fees. In 2011, in Lucas, the Court of Appeals stretched the Bumpers decision so far that it agreed to rule on an appeal in a case where attorneys’ fees were unresolved, even though a mistake rendered the certification for immediate appeal defective. But in 2012, in Duncan, the court seemed to reverse tack when it declined to rule on an appeal in a case where a motion for attorneys’ fees was still unresolved, and the trial court had refused to certify the case for immediate appeal.

“North Carolina law regarding the finality of an order or judgment which preserves an issue of attorney fees is not a model of clarity,” Judge Douglas McCullough wrote for a unanimous court, displaying a gift for understatement.

McCullough said that since it was difficult to reconcile Lucas with the rest of the state’s case law about when an appeal could be heard, it would follow the lead of Duncan and decline to hear Celeste’s appeal while motions were still pending. It found that result consistent with the Supreme Court’s rulings “and the better established law.” The court noted in passing that the trial court had also reserved its decision on issues of child support and contempt, but did not consider how that might affect the case.

Cynthia Mills of The Law Office of Cynthia Mills in Greenville represented the husband. Eddie Greene and Toby Hampson of Wyrick Robbins Yates & Ponton in Raleigh represented the wife.

Hampson argued that both the court’s decision in Hausle and its decision in Duncan conflicted with a prior Court of Appeals decision and with Supreme Court precedent, both of which the court is obligated to follow.

“The court did not reconcile Duncan and Lucas in this case,” Hampson said. “From our perspective, the law is clear. Under the Supreme Court case Bumpers and the Court of Appeals case Lucas, the law is clear that particularly in family law cases, a trailing attorneys’ fee order should not render the appeal interlocutory.”

Hampson also noted that the Duncan decision is up for review by the Supreme Court. Oral arguments will be heard April 16. He said that his client is also considering whether to petition the Supreme Court for discretionary review of her case.

Mills could not be reached for comment in time for publication.

As an alternative theory, Celeste asked the court to hear the appeal immediately because it affected a substantial right. In the past, courts have never held that a child custody order affects a substantial right unless the physical well-being of a child is at stake. Celeste argued that the well-being of her daughters was in jeopardy “because of a lack of educational opportunities available to them and dental issues that they have suffered.” She contended the issues were especially urgent because the daughters were already in high school.

The court found that those concerns “fall well short of the level of physical well-being at stake” in cases where it had found a substantial right in peril. The court actually analyzed this issue first, saying that this would ordinarily be enough to dismiss the appeal, but because of the recent decisions on interlocutory appeals, it felt that further explanation was needed.

The 15-page opinion is Hausle v. Hausle (Lawyers Weekly No. 13-07-0305). The full text of the decision is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan