Raleigh lawyer Jonathan McGirt waited nearly five years for an appellate court to clarify whether interlocutory orders for attorneys’ fees in family law cases were immediately appealable under the substantial right exception.
The exception gives a litigant an avenue to appeal an order that doesn’t completely dispose of a case, but only if the order affects a substantial right. A statutory provision enacted in August 2013 included a list of various types of interlocutory orders in family law cases that are immediately appealable.
But orders for attorneys’ fees are not on that list, which left McGirt and other family law appellate lawyers wondering if the list was exclusive or whether a traditional substantial right exception for an appeal might be available for other claims that lawmakers did not specifically cite when writing the statute.
The answer finally came on June 5, when a divided state Court of Appeals held that a plaintiff could appeal a trial judge’s order requiring him to pay nearly $50,000 in attorneys’ fees to his soon-to-be ex-wife for claims relating to child support, child custody and post-separation support. But the two are still sparring over equitable distribution claims.
“In general, I would have said that the substantial right doctrine can apply to other claims,” said McGirt, who was not involved in the case, Beasley v. Beasley. “But I am a little bit surprised to see it applied to attorneys’ fees given the way the fees issue was handled” in an earlier decision.
In that case, Duncan v. Duncan, which was decided two months before the law at the center of Beasley was enacted under General Statute § 50-19.1, the state Supreme Court held that an attorneys’ fees order was not a substantive claim.
And in 2015, the Court of Appeals in Comstock v. Comstock dismissed attempted interlocutory appeals from an injunction order and domestic relations order, because those types of actions were not included in the aforementioned list of immediately appealable issues.
But in Beasley, Court of Appeals Judge Wanda Bryant found that the § 50-19.1 “provision creates a kind of intermediate class of ‘quasi-interlocutory’ orders that would be final if considered in isolation, but would technically not otherwise be ‘final’ … because another related claim (or ‘issue’) is still pending in the larger action.”
Bryant then held that while the provision “restricts interlocutory family law appeals to those claims listed in that section, an avenue for appeal nevertheless exists.” She concluded that the “traditional ‘substantial right’ exception may also apply to other interlocutory orders entered in a family law case—such as the one here for attorney’s fees—but that do not appear listed in section 50-19.1.”
While the court has answered the question that bugged McGirt and others who were in the dark—the panel apparently struggled with the issue: Judge Phil Berger concurred in the result only, while Judge Hunter Murphy wrote a dissent. He contended that Mr. Beasley, the plaintiff appealing the attorneys’ fees order, had failed to prove that the award of fees affected a substantial right.
“It’s basically a 1-1-1 decision and I’m not sure what that means for precedential value,” McGirt said. “But the analysis is out there. It’s another option. Another arrow in the quiver.”
Brian Beasley’s appellate attorney, Brian Jones of Jones Law in Winston-Salem, believed that the decision “means that there will be more appeals, or at least the door is open for more appeals.” But he added that he’s heard from other more experienced appellate practitioners (this was the first time he’s appealed an attorneys’ fees order) that a trial judge’s fee orders are rarely reversed.
And this case was no different—the Court of Appeals affirmed the order requiring Mr. Beasley to pay $48,188 in attorneys’ fees.
“It seems odd to me that they’d open the door to those appeals and in the same decision affirm the trial court,” he added. “It seems to be sending a little bit of a mixed message.”
Katherine Beasley’s attorney, Ruth Bradshaw of Halvorsen Bradshaw in Winston-Salem, was still studying the decision. But she said it now seems that an order for attorneys’ fees is appealable under § 50-19.1.
But only “if the underlying substantive claims have been fully decided because a claim for attorney fees is not substantive,” she added in an email. “The Court of Appeals then goes on to say that the order for attorney fees also affects a substantial right.”
While the court’s majority rejected Mrs. Beasley’s argument that Mr. Beasley lacked a right to appeal, she prevailed on the fees issue. And if Mr. Beasley were to appeal, he’d have to do an about-face and argue that he was wrong in asserting that he had a substantial right to appeal the fees order.
“Nobody has an incentive to appeal,” Jones said. “It’s probably going to stand until the next case comes along with some slightly new twist.”
The 32-page decision is Beasley v. Beasley (Lawyers Weekly No. 011-182-18). An opinion digest is available at nclawyersweekly.com.
Follow Phillip Bantz on Twitter @NCLWBantz