An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1264
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


EDWARD LEWIS MURRELLE,
     Plaintiff,

      v.                                      Carteret County
                                              Nos. 10 CVD 1713, 12 CVD 133
CYNTHIA STARCALA MURRELLE,
     Defendant.


      Appeal by Plaintiff from order entered 30 April 20131 by

Judge Peter Mack in Carteret County District Court.                      Heard in

the Court of Appeals 5 March 2014.


      Schulz Stephenson Law, by Bradley N. Schultz and Sundee G.
      Stephenson, for Plaintiff.

      Anderson Jones, PLLC, by Todd A. Jones and M. Caroline
      Lindsey, for Defendant.


      STEPHENS, Judge.


                    Factual and Procedural Background




1
  Plaintiff’s amended notice of appeal lists twelve other orders
entered on various dates by several Carteret County District
Court judges.    For the reasons discussed below, Plaintiff’s
purported appeal of those orders is dismissed.
                                            -2-
       This      appeal      arises    from       several    interlocutory             orders

entered     in     legal    actions    surrounding         the    dissolution          of   the

parties’      marriage.            Plaintiff       Edward        Lewis        Murrelle      and

Defendant Cynthia Starcala Murrelle were married in April 1995.

On 21 December 2010, Defendant filed a complaint in file number

10 CVD 1713 in Carteret County District Court seeking a divorce

from    bed      and      board,   post-separation          support,          alimony,      and

attorney’s         fees    (“Defendant’s       case”).           On    the      same     date,

Defendant moved for injunctive relief to prevent Plaintiff from

canceling        Defendant’s       health    insurance.           An     ex    parte     order

enjoining Plaintiff from canceling Defendant’s health insurance

was entered on 21 December 2010.

       On     25       January     2011,     Plaintiff       answered           Defendant’s

complaint and counterclaimed for divorce from bed and board and

for equitable distribution.                On 31 May 2011, Plaintiff moved for

dismissal        of    Defendant’s    claims       for   post-separation           support,

alimony, and attorney’s fees, asserting a lack of subject matter

jurisdiction.            In support of his motion, Plaintiff noted that

Defendant’s complaint had alleged that the parties were still

living in the marital residence and that Defendant’s reply to

Plaintiff’s           counterclaims   alleged       that    the       parties     were      not

separated.         The district court denied that motion.
                                        -3-
      On 3 August 2011, Defendant filed a motion in the cause

asking that Plaintiff be ordered to pay for and not cancel her

health insurance during the pendency of her action for divorce

from bed and board and alimony; an order granting this motion

and awarding spousal support in the form of health insurance was

entered on 5 August 2011.          On 4 August 2011, the court entered

an   order    which   dismissed    Defendant’s      December      2010    ex   parte

order and denied Plaintiff’s motion to dismiss.                     On 16 August

2011,    a    memorandum    of   judgment/order         was    entered   in    which

Plaintiff agreed to continue Defendant’s health insurance, and

Defendant agreed to the listing of the marital residence for

sale.2   On 28 February 2012, Plaintiff moved for relief from the

4 August 2011 order to the extent it denied his first motion to

dismiss, renewing that earlier motion at the same time.

      Plaintiff filed his complaint for absolute divorce in file

number   12    CVD    133   in   Carteret     County     District      Court   on   7

February      2012    (“Plaintiff’s      case”).          In    that     complaint,

Plaintiff alleged that he and Defendant had been separated since

25   January    2011.       Defendant    filed     an    unverified      motion     to

2
  During the course of the litigation between the parties, dozens
of other motions and filings were made in Carteret County
District Court. We include in our procedural history only those
which are relevant to the resolution of this appeal or which
provide context therefor.
                                          -4-
dismiss    Plaintiff’s      case   pursuant     to     Rule    12(b)(6),     alleging

that the parties had not separated.               On 17 July 2012, Plaintiff

moved for summary judgment on his claim for absolute divorce.

At a hearing on 6 August 2012, the court stated its intention to

grant   the    absolute     divorce.        Defendant’s        attorney     requested

leave until 4:30 p.m. that day to file whatever counterclaims

were    necessary      to   preserve      Defendant’s        claim    for   equitable

distribution.       Plaintiff’s counsel agreed to this request in

open court.

       Defendant then filed an answer along with the agreed-to

counterclaim     for     equitable       distribution    in     Plaintiff’s          case.

Defendant’s     answer      disputed      the   date    of    separation        of    the

parties set forth in Plaintiff’s complaint and discussed at the

hearing on 6 August.         On 7 August 2012, Plaintiff filed a motion

to strike and motion to shorten time, noting Defendant had not

complied with the agreement reached between counsel the previous

day.    On the same date, the court entered three orders:                              one

denying Defendant’s motion to dismiss the divorce complaint, one

granting Plaintiff’s motion to shorten time and to strike parts

of Defendant’s answer, and one granting Plaintiff’s motion for

absolute      divorce.       In    the     court’s     summary       judgment        order

granting an absolute divorce, which was entered nunc pro tunc to
                                  -5-
6 August 2012, the court found the parties’ date of separation

to be 25 January 2011.        Defendant gave notice of appeal from

that judgment, but later abandoned her appeal.

    On 30 October 2012, Plaintiff filed a motion to dismiss

Defendant’s equitable distribution claim in 12 CVD 133 for lack

of subject matter jurisdiction.         That motion stated that “there

already exists an action for equitable distribution pending in

Carteret County File Number 10 CVD 1713.”          On 9 November 2012,

Defendant moved (1) to dismiss Plaintiff’s motion to dismiss her

equitable distribution claim, (2) to join the two files (10 CVD

1713 and 12 CVD 133), and (3) for attorney’s fees.

    On 11 January 2013, Plaintiff responded with a motion to

abate the second equitable distribution claim.        On that day, the

district   court   reviewed    the      pending   motions     and   denied

Plaintiff’s motion to dismiss Defendant’s equitable distribution

counterclaims in 12 CVD 133.      The written order was entered on

30 April 2013, nunc pro tunc to 11 January 2013.            A second order

was also entered on 30 April 2013, nunc pro tunc to 11 January

2013, which granted Defendant’s motion to consolidate the files

and denied Plaintiff’s motion to abate.

    Plaintiff appeals from both 30 April 2013 orders in file 12

CVD 133.   Plaintiff also gave notice of appeal from eleven other
                                 -6-
interlocutory orders in 10 CVD 1713:      the ex parte order signed

21 December 2010; continuance orders filed 29 December 2010, 4

January 2011, 15 February 2011, 31 May 2011, and 15 August 2011;

and other orders filed 12 January 2011, 31 May 2011, 4 August

2011, 5 August 2011, and 16 August 2011.        On 8 November 2013,

Plaintiff filed a conditional petition for writ of certiorari.

      Grounds for Appellate Review/Defendant’s Motion to Dismiss3

       On 19 December 2013, Defendant filed a motion for sanctions

and to dismiss Plaintiff’s appeal as interlocutory.      We recently

considered a similar interlocutory appeal in Jessee v. Jessee,

212 N.C. App. 426, 713 S.E.2d 28 (2011).      Just as in that case,

we agree that the orders from which Plaintiff seeks to appeal

are

            clearly interlocutory rather than final in
            nature, since the trial court’s orders were
            made during the pendency of an action and do
            not dispose of the case, but instead leave
            it for further action by the trial court in
            order to settle and determine the entire
            controversy, and since the trial court’s
            order did not settle and determine the
            entire controversy between the parties.   As
            a general proposition, there is no right of

3
  Our General Statutes have recently been amended to permit
appeals from interlocutory orders or judgments from any
“claim[s] prosecuted under G.S. 50-19.1.” N.C. Gen. Stat. § 7A-
27(b)(3)(e) (2013). However, this provision became effective 23
August 2013, 2013 N.C. Sess. Laws 411, s. 1, and thus is
inapplicable to the appeal in this matter.
                                 -7-
           immediate appeal from interlocutory orders
           and judgments.   A trial court’s refusal to
           abate an action based upon the prior pending
           action doctrine is, however, immediately
           appealable.    On the other hand, a trial
           court order’s refusal to dismiss a complaint
           for lack of subject matter jurisdiction is
           not subject to appellate review on an
           interlocutory basis as a matter of right.

Id. at 431, 713 S.E.2d at 32-33 (citations, internal quotation

marks, and brackets omitted).     In Jessee, even though there was

no right of immediate appeal from the denial of the motion to

dismiss, due to the “interrelated nature of [the] . . . twin

challenges to the trial court’s order,” this Court elected to

address the merits of both.        Id. at 431, 713 S.E.2d at 33.

Here, in contrast, the issues presented in Plaintiff’s appeal

are not closely interrelated.       Unlike the appellant in Jessee

who challenged a single order on two bases, Plaintiff’s notice

of appeal involves some thirteen orders entered in two files

over a nearly three-year span.

    More   importantly,   as   discussed    below,   resolution   of   the

issue involving Plaintiff’s motion to abate does not involve the

same facts, law, reasoning, or analysis as would be implicated

in addressing the merits of the other interlocutory orders from

which he seeks to appeal, to wit, the ex parte order signed 21

December   2010   which   prohibited       Defendant   from   canceling
                                        -8-
Plaintiff’s      health      insurance;      continuance         orders       filed    29

December 2010, 4 January 2011,                12 January 2011,            15 February

2011, 31 May 2011, and 15 August 2011; and other orders filed 31

May 2011 (trial judge declining to recuse himself), 4 August

2011     (dismissing      Plaintiff’s        ex       parte    order    and        denying

Defendant’s      motion      to   dismiss),       5     August   2011     (preventing

Defendant from canceling Plaintiff’s health insurance), and 16

August 2011 (requiring Defendant to continue Plaintiff’s health

insurance and requiring parties to list their marital residence

and a boat slip for sale); and the 30 April 2013 order denying

Plaintiff’s motion dismiss Defendant’s counterclaim.

       Accordingly, we deny Defendant’s motion to dismiss as to

the order denying Plaintiff’s motion to abate                          and reach the

merits    of    that   argument.        We    deny       Defendant’s      motion      for

sanctions in light of Plaintiff’s right of immediate appeal from

the    denial    of    his    motion    to    abate.           However,       we     allow

Defendant’s motion to dismiss as to Plaintiff’s purported appeal

from the remaining interlocutory orders.                      For the same reasons

discussed supra, we deny Plaintiff’s conditional petition for

writ of certiorari.

                                    Discussion
                                        -9-
     Plaintiff argues that the trial court erred in denying his

motion to abate.    We disagree.

     Plaintiff    sought    to    abate       Defendant’s     counterclaim    for

equitable    distribution    in    12    CVD    133   based    upon   the   prior

pending action doctrine.4

            Under the law of this [S]tate, where a prior
            action is pending between the same parties
            for the same subject matter in a court
            within the [S]tate having like jurisdiction,
            the prior action serves          to abate the
            subsequent action. The prior pending action
            doctrine   involves    essentially    the   same
            questions as the outmoded plea of abatement,
            and   is,   obviously    enough,   intended   to
            prevent the maintenance of a subsequent
            action that is wholly unnecessary and, for
            that   reason,    furthers   the   interest   of
            judicial economy.      The ordinary test for
            determining whether or not the parties and
            causes are the same for the purpose of
            abatement by reason of the pendency of the
            prior action is this:       Do the two actions
            present   a    substantial    identity   as   to
            parties, subject matter, issues involved,
            and relief demanded?

Id. at 438,     713 S.E.2d       at 37 (citations, internal quotation

marks, and brackets omitted).




4
  We note   that the only “prior action pending” to which Plaintiff
seeks to    apply the abatement doctrine is his counterclaim for
equitable    distribution in the case Defendant initiated.     Were
Plaintiff    to prevail in this attempt, Defendant would lose all
equitable   distribution rights.
                                -10-
    However,   our   General    Statutes     explicitly   permit   the

possibility of multiple actions related to the dissolution of

marriages under Chapter 50:

         (a)   Notwithstanding    the    provisions of
         [section] 1A-1, Rule 13(a), any action for
         divorce under the provisions of [section]
         50-5.1 or [section] 50-6 that is filed as an
         independent,    separate     action    may be
         prosecuted during the pendency of an action
         for:

            (1) Alimony;

            (2) Postseparation support;

            (3)   Custody      and     support   of   minor
         children;

            (4) Custody and support of a person
         incapable of self-support upon reaching
         majority; or

            (5) Divorce pursuant to [section] 50-5.1
         or [section] 50-6.

         (b)   Notwithstanding    the    provisions of
         [section] 1A-1, Rule 13(a), any action
         described in subdivision (a)(1) through
         (a)(5) of this section that is filed as an
         independent,    separate     action    may be
         prosecuted during the pendency of an action
         for   divorce   under  [section]    50-5.1 or
         [section] 50-6.

N.C. Gen. Stat. § 50-19 (2013).        Further, our General Statutes

explicitly provide three ways to bring an equitable distribution

claim:
                                            -11-
            At any time after a husband and wife begin
            to live separate and apart from each other,
            a claim for equitable distribution may be
            filed and adjudicated, either [(1)] as a
            separate civil action, or [(2)] together
            with any other action brought pursuant to
            Chapter 50 of the General Statutes, or [(3)]
            as a motion in the cause as provided by
            [section] 50-11(e) or (f).

N.C. Gen. Stat. § 50-21(a) (2013).

      Here,      Defendant      initiated         the     proceedings        between    the

parties under Chapter 50 on 21 December 2010 by filing of her

complaint     for     divorce        from    bed     and      board,      post-separation

support, alimony, and attorney’s fees in 10 CVD 1713.                              Despite

the   pendency      of   the    claims      in    Defendant’s       action,      Plaintiff

elected to file his action for absolute divorce as a separate

action.     As noted supra, this was permitted by section 50-19(a).

See N.C. Gen. Stat. § 50-19(a).                     Likewise, per subsection 50-

19(b),    Defendant      elected       to    file        an   equitable       distribution

counterclaim in Plaintiff’s action.                      See N.C. Gen. Stat. § 50-

19(b).        Our    General     Assembly          having      clearly      provided    for

multiple    actions      in    the    context       of    Chapter      50    actions,   the

doctrine    of      abatement    does       not    apply      to   such     circumstances.

Accordingly, Plaintiff’s argument is overruled.

      AFFIRMED.

      Judges BRYANT and DILLON concur.
                         -12-
Report per Rule 30(e).
