Gaynor v. Gaynor. (Lawyers Weekly No. 10-16-1074, 7 pp.) (Robert C. Hunter, J.) Appealed from Pitt County District Court (Joseph A. Blick, J.) N.C. App. Unpub. Click here for the full text of the opinion.
Holding: The trial court’s order setting a separation date in a divorce case is an interlocutory order and does not affect a substantial right. Therefore, there is no appellate jurisdiction.
Plaintiff and defendant were married on Aug. 20, 1988. They had two children.
On July 31, 2008, plaintiff filed a complaint for absolute divorce and alleged that the parties had separated on April 16, 1995. Defendant filed an answer also requesting an absolute divorce but claiming the separation date of was Sept. 10, 2007. She also filed counterclaims that included child support, alimony, post-separation support and attorney’s fees.
At a March 2009 hearing, the court considered only the date of separation and left other matters to be considered at a later time. The court entered an order that the date of separation was May 14 2006. Plaintiff appeals.
The only dispositive issue here is whether the court order before us is interlocutory. Generally there is no right of appeal on interlocutory orders, which are those made during the pendency of an action that do not dispose of a case. Since the trial court’s order leaves unresolved defendant’s counterclaims, we find that the appeal is interlocutory.
An interlocutory order is only appealable under certain conditions: the order is final as to some claims or parties, the trial court certifies that there is no just reason to delay the appeal, or the order deprives the appellant of some substantial right that would be lost unless immediately reviewed.
Here, appellate jurisdiction exists, if at all, under the substantial-right exception. The appellant bears the burden of showing that a substantial right would be affected. Plaintiff contends the trial court’s judgment affects a substantial right because the date of marital separation is a fundamental factual determination for counterclaims still pending. We have previously rejected such arguments.
Plaintiff acknowledges the court’s holding in a previous ruling but argues that a dissent in the opinion is the correct statement of law. Plaintiff claims that this court can ignore its prior decision because the Supreme Court, in affirming the majority’s opinion, did not address whether the divorce order adjudicating the separation date affected a substantial right.
This argument overlooks the fundamental principal of appellate review; that is, that we are bound by our holding in the same issue in a previous case unless that holding is overturned by a higher court.