                                  NO. COA13-816

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 February 2014


    JERMAINE S.1 PETERS,
         Plaintiff/Husband/Father,

        v.                                Gaston County
                                          No. 12 CVD 4833
    RASHEEDAH PETERS,
         Defendant/Wife/Mother.


        Appeal by Defendant from Order entered 8 April 2013 by Judge

Ralph C. Gingles in Gaston County District Court. Heard in the

Court of Appeals 11 December 2013.


        Law Office of Yolanda M. Trotman, PLLC, by Yolanda M. Trotman,
        for Plaintiff.

        The Blain Law Firm, PC, by Sabrina Blain, for Defendant.


        STEPHENS, Judge.


                    Factual and Procedural History

        This case arises from the separation on 19 April 2011 of

Plaintiff Jermaine Peters and Defendant Rasheedah Peters. The

couple was married on 28 September 2002. They have one minor child



1 We note that Plaintiff’s middle initial is written as “D”
throughout the record on appeal and in the parties’ briefs. In
order to ensure consistency between trial and appellate opinions
and pursuant to the practice and custom of this Court, however, we
use the same middle initial contained in the trial court’s 8 April
2013 order — “S.”
                                 -2-
and reside in Gaston County. On 5 August 2012, acting pro se,

Plaintiff submitted his divorce complaint in Mecklenburg County.

Defendant submitted her answer two months later, on 8 October 2012,

counterclaiming for child custody, child support, retroactive

child support, equitable distribution, resumption of the use of

her maiden name, and attorneys’ fees. On 13 November 2012, venue

was changed from Mecklenburg County to Gaston County pursuant to

a consent order   filed in Mecklenburg County District Court.2

Despite that change, Plaintiff filed a reply to Defendant’s answer

with the assistance of counsel on 11 December 2012 in Mecklenburg

County.3 Defendant thereafter replied to Plaintiff’s reply on 14

January 2013 in Gaston County.

     The case was heard in Gaston County District Court during the

21 February 2013 civil session. During the hearing, Plaintiff made




2Though the consent order was not included in the record on appeal,
its existence is not disputed by the parties. Therefore, we take
judicial notice of the order for purposes of appellate review.
E.g., West v. G. D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d
221, 223 (1981) (“[G]enerally a judge or a court may take judicial
notice of a fact which is either so notoriously true as not to be
the subject of reasonable dispute or is capable of demonstration
by readily accessible sources of indisputable accuracy.”)
(citations omitted; emphasis in original).

3 There is nothing in the record to explain why Plaintiff filed
his reply in Mecklenburg County instead of Gaston County, and the
parties do not discuss it in their briefs.
                                        -3-
a motion to “dismiss/deny” Defendant’s claim for retroactive child

support on grounds that Defendant “failed to state a claim for

which relief can be granted[] and failed to submit an [a]ffidavit

of reasonable and necessary expenses as required by case law cited

in the North Carolina Trial Judge’s Bench Book.”4 Defendant argued

that “such an [a]ffidavit is not required and that the child’s

expenses could be established through testimony.” The district

court issued an order on 8 April 2013, nunc pro tunc, to 21 February

2013,    which    denied    Defendant’s       claim    for   retroactive     child

support. Defendant appeals from that order.

                                     Discussion

     On appeal, Defendant contends that the trial court erred in

denying her claim because (1) her factual allegations regarding

retroactive child support were adequate                 and (2)      she was not

required to file an affidavit to show the necessary and reasonable

expenses incurred by the parties’ child. Plaintiff responds by

arguing, inter alia, that Defendant’s appeal is interlocutory and

should    be     dismissed.     We   agree    with     Plaintiff     and   dismiss

Defendant’s      appeal    as   interlocutory.        Accordingly,    we   do   not

address the parties’ other arguments.



4There is no transcript of the proceedings in the record on appeal.
This recitation of events comes from the trial court’s 8 April
2013 order.
                                   -4-
      “An interlocutory order is one made during the pendency of an

action, which does not dispose of the case, but leaves it for

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) (citations omitted). In contrast,

a final judgment “disposes of the cause as to all the parties,

leaving nothing to be judicially determined between them in the

trial court.” Id. at 361–62, 57 S.E.2d at 381. “Generally there is

no   right   of   immediate   appeal   from   interlocutory   orders   and

judgments.” Goldson v. Am. Motors Corp., 326 N.C. 723, 725, 392

S.E.2d 735, 736 (1990). “The reason for this rule is to prevent

fragmentary, premature[,] and unnecessary appeals by permitting

the trial court to bring the case to final judgment before it is

presented to the appellate courts.” Harbin Yinhai Tech. Dev. Co.

v. Greentree Fin. Grp., Inc., 196 N.C. App. 615, 619–20, 677 S.E.2d

854, 857–58 (2009).

      Despite this general rule,

             [i]mmediate appeal of interlocutory orders and
             judgments is available in at least two
             instances.   First,    immediate   review   is
             available when the trial court enters a final
             judgment as to one or more, but fewer than
             all, claims or parties and certifies there is
             no just reason for delay [pursuant to Rule
             54(b)]. . . . Second, immediate appeal is
             available from an interlocutory order or
             judgment which affects a substantial right.
                                  -5-


Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999)

(citations omitted). “When an appeal is interlocutory [and not

certified   for   appellate   review   pursuant   to   Rule   54(b)],   the

appellant must include in [the] statement of grounds for appellate

review sufficient facts and argument to support appellate review

on the ground that the challenged order affects a substantial

right.” Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336,

338 (citing N.C.R. App. P. 28(b)(4)), affirmed per curiam, 360

N.C. 53, 619 S.E.2d 502 (2005). Otherwise, the appeal is subject

to dismissal. Rousselo v. Starling, 128 N.C. App. 439, 444, 495

S.E.2d 725, 729 (1998) (noting that failure on the part of the

appellant to establish that the trial court’s order affects a

substantial right “subjects an appeal to dismissal”).

     In this case, Defendant provided the following statement

regarding the grounds for her appeal of the trial court’s order:

            At the time this appeal was filed, other
            claims remained outstanding between the
            parties in the trial court, so this appeal
            from [the o]rder is interlocutory. However,
            the [o]rder affects [Defendant’s] substantial
            right in that it deprives her [of r]etroactive
            [s]upport and more particularly deprives her
            of the use of funds expended in supporting the
            child prior to the date of filing her claim
            for [c]hild [s]upport and impedes her ability
            to support the child in the future.

This statement is insufficient.
                                -6-
                 It is not the duty of this Court to
            construct arguments for or find support 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). In making such a showing, “[t]he

appellant[] must present more than a bare assertion that the order

affects a substantial right; [she] must demonstrate why the order

affects a substantial right.” Hoke Cnty. Bd. of Educ. v. State,

198 N.C. App. 274, 277–78, 679 S.E.2d 512, 516 (2009) (emphasis in

original). Rule 28 of the North Carolina Rules of Appellate

Procedure clarifies that, at a minimum, a party’s statement of

grounds for appellate review must “include citation of the statute

or statutes permitting appellate review. . . . When an appeal is

interlocutory, the statement must contain sufficient facts and

argument to support appellate review on the ground that the

challenged order affects a substantial right.” N.C.R. App. P.

28(b)(4).

     Defendant’s statement of grounds for appellate review in this

case includes no citation to the statute permitting review. In

addition, Defendant fails to offer any legal reason that the trial
                                     -7-
court’s order affects a substantial right. Instead, she simply

asserts that it does. Where the appellant fails to carry her burden

in this circumstance, the appeal will be dismissed. Jeffreys, 115

N.C. App. at 380, 444 S.E.2d at 254 (“[The defendant] presented

neither    argument   nor   citation     to   show   this   Court   that    [the

defendant] had the right to appeal the order dismissing its

counterclaims.”). Because Defendant presents no argument to show

that she has the right to immediate review of the trial court’s

order, we hold that she failed to carry her burden and dismiss her

appeal as interlocutory. See id; Plomaritis v. Plomaritis, 200

N.C. App. 426, 429, 684 S.E.2d 702, 704 (2009) (dismissing as

interlocutory the defendant-husband’s appeal of an order modifying

his monthly child support obligation because the defendant “offers

no argument that the . . . order has affected a substantial right,

and we decline to construct one for him”).

     Nevertheless, we also conclude that Defendant’s appeal is

improper    because   it    is   based   on   an   interlocutory    order    not

affecting a substantial right. “A substantial right is one which

will clearly be lost or irremediably adversely affected if the

order is not reviewable before final judgment.” Turner v. Norfolk

S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000)

(citation and internal quotation marks omitted).
                                       -8-
            The test for whether a substantial right has
            been affected consists of two parts: (1) the
            right itself must be substantial; and (2) the
            deprivation of that substantial right must
            potentially work injury to the appealing party
            if not corrected before appeal from final
            judgment. Whether a substantial right is
            affected is determined on a case-by-case basis
            and should be strictly construed.

Builders Mut. Ins. Co. v. Meeting Street Builders, LLC, __ N.C.

App. __, __, 736 S.E.2d 197, 199 (2012) (citations, internal

quotation marks, and brackets omitted).

            The right to immediate appeal [of an order
            affecting a substantial right] is reserved for
            those cases in which the normal course of
            procedure is inadequate to protect the
            substantial right affected by the order sought
            to be appealed. Our courts have generally
            taken a restrictive view of the substantial
            right exception.

Turner, 137 N.C. App. at 142, 526 S.E.2d at 670. While this Court

has not determined whether an ordering denying retroactive child

support, standing alone, affects a substantial right, cf. Appert

v. Appert, 80 N.C. App. 27, 33, 341 S.E.2d 342, 345 (1986) (holding

that   an   order   regarding    prospective   child     support   affects   a

substantial    right),   we     have   addressed   the   substantial   right

question in a number of similar, instructive scenarios.

       In Stephenson v. Stephenson, we held that an order awarding

alimony pendente lite, child support pendente lite, and attorneys’

fees pendente lite constituted an interlocutory decree, which
                                  -9-
could not be immediately appealed. 55 N.C. App. 250, 251, 285

S.E.2d 281, 282 (1981). There we noted that, “[i]n the majority of

appeals from pendente lite awards[,] it is obvious that a final

hearing may be had in the district court and final judgment entered

much more quickly than this Court can review and dispose of the

pendente lite order.” Id. (italics added). Therefore, we reasoned,

          [t]here is an inescapable inference drawn from
          an overwhelming number of appeals involving
          pendente lite awards that the appeal too often
          is pursued for the purpose of delay rather
          than to accelerate determination of the
          parties’ rights. The avoidance of deprivation
          due to delay is one of the purposes for the
          rule that interlocutory orders are not
          immediately appealable.

Id. (italics added). The following year we applied the reasoning

of Stephenson to an award of child support and a pendente lite

award of alimony, concluding that “child support orders entered in

conjunction with orders for alimony pendente lite” are not subject

to immediate appellate review even when the child support order is

not designated “pendente lite.” Fliehr v. Fliehr, 56 N.C. App.

465, 466, 289 S.E.2d 105, 106 (1982) (citing the delay rationale

articulated   in   Stephenson).   Relying   on   Stephenson   and   other

similar cases, we stated in 2001 that “[i]nterlocutory appeals

[challenging] only the financial repercussions of a separation or

divorce generally have not been held to affect a substantial
                                    -10-
right.” Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259,

262 (2001) (collecting cases) (emphasis added).

      In   certain    limited    factual    contexts,   however,   we   have

nonetheless determined that an order pertaining to the financial

repercussions of a separation or divorce affects a substantial

right. In McGinnis v. McGinnis, for example, we held that an order

enforcing an out-of-state order, which granted the plaintiff’s

claim for $4,225.00 in arrearages for alimony and child support

and   imposed     a   continuing    support     obligation,     affected   a

substantial right and was immediately appealable. 44 N.C. App.

381, 387, 261 S.E.2d 491, 495 (1980) (citations omitted). Six years

later,     in   Appert,   we   determined   that   an   order   affected   a

substantial right when it directed that prospective child support

funds be placed in escrow if the parties’ minor children failed or

refused to abide by certain visitation privileges. 80 N.C. App. at

28, 33, 341 S.E.2d at 342, 345. There, in determining that the

order affected a substantial right, we focused on the trial court’s

statement that the support was “reasonably necessary for the

support and maintenance of the children.” Id. at 33, 341 S.E.2d at

345 (noting that “[i]t is usually necessary to resolve the question

in each case by considering the particular facts of that case and

the procedural context in which the order from which appeal is
                                         -11-
sought      was   entered”)     (citation   and     internal   quotation    marks

omitted; emphasis added).

      In both McGinnis and Appert, we elected to review the parties’

appeals as affecting a substantial right when the trial courts’

respective orders dealt, in part, with whether future child support

payments would be available. In those cases, one party’s right to

receive or access         future payments,        if actually owed,        was in

jeopardy. Therefore, we correctly determined that the right was

substantial as implicating the child’s right to receive support.

In this case, however, Defendant is appealing the trial court’s

denial of her claim for past child support payments. While such

payments might be owed, the right to receive reimbursement cannot

be   lost    by   our   decision    to    refrain    from   granting    immediate

appellate     review.     The   funds    have   already     been    expended,   and

Defendant’s       right    to    reimbursement       cannot    be    irremediably

adversely affected by waiting until the natural conclusion of the

proceedings below. The harm done to Defendant, if any, has already

occurred and cannot intensify. This is distinct from the harm that

could be done in the context of prospective child support payments.

There, immediate appellate review might function to reverse or

mitigate such harm if child support payments were improvidently

granted or denied. Therefore, we believe we are bound by the
                              -12-
general rule articulated in Embler and applied in Stephenson and

Fliehr.

     For the above reasons, Defendant’s appeal is dismissed as

based on an interlocutory order not affecting a substantial right.

     DISMISSED.

     Judges STEELMAN and DAVIS concur.
