An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-700
                            NORTH CAROLINA COURT OF APPEALS

                                 Filed:     4 February 2014


HAYLEY L. HARRISON-FLOYD,
     Plaintiff

       v.                                          Pitt County
                                                   No. 09 CVD 3555
JEFFREY W. FLOYD,
     Defendant.


       Appeal by defendant from judgment entered 10 January 2013

by Judge Darrell B. Cayton, Jr. in Pitt County District Court.

Heard in the Court of Appeals 6 November 2013.


       Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.
       Smith, III, and R. Gray Jernigan, for plaintiff-appellee.

       W. Gregory Duke for defendant-appellant.


       DAVIS, Judge.


       Jeffrey        W.    Floyd   (“Defendant”)         appeals    from   the     trial

court’s equitable distribution judgment.                      On appeal, he argues

that   the       trial      court   erred    in    (1)    distributing      the    second

mortgage         on   the   parties’   marital       residence      to   him;     and   (2)

making      an    equal     division   of    the   net     marital   estate.        After

careful      review,        we   conclude     that       Defendant’s     interlocutory
                                               -2-
appeal does not implicate a substantial                         right and should be

dismissed.

                                         Factual Background

      Hayley L. Harrison-Floyd (“Plaintiff”) and Defendant were

married on 29 November 1993, separated on 15 January 2010, and

divorced on 4 August 2011.                 Two minor children were born of the

marriage.         On    12   October       2009,     Plaintiff      filed   a    complaint

against    Defendant         seeking       divorce     from   bed    and    board,   child

custody     and    support,        and     equitable     distribution.          Defendant

filed an answer and counterclaim on 20 October 2009 seeking

divorce     from       bed   and    board,      child    custody,      child      support,

equitable distribution and interim equitable distribution, post-

separation support and alimony, and attorney’s fees.

      On 20 February 2010, the trial court entered an order (1)

granting the parties temporary joint legal and physical custody

of   the    minor      children;         (2)   granting       Defendant’s       claim   for

divorce from bed and board; (3) ordering Plaintiff to pay child

support and post-separation support to Defendant; (4) ordering

Plaintiff     to       vacate      the    former     marital     residence;       and   (5)

requiring Defendant to pay at least $200 per month towards the

equity line of credit encumbering the former marital residence.

On   29    February      2012,           the   trial    court    entered     an    amended
                                         -3-
pretrial order by consent of the parties regarding their claims

for   equitable       distribution.        The     pretrial       order      set    forth

several stipulations as to the classification and valuation of

certain    property     and   listed     other     property      as    to    which    the

parties disputed either the value, the classification, or both.

      An equitable distribution hearing was held on 20 September

2012,   and     the   trial    court     entered    a    judgment      of     equitable

distribution on 10 January 2013.                 In its judgment, the trial

court     determined      that     the    former        marital       residence       was

Plaintiff’s     separate      property    and,     for    this    reason,      was    not

subject    to    equitable       distribution.           The   trial        court    also

concluded that an equal division of the net marital estate was

equitable.       Defendant filed a notice of appeal on 4 February

2013.

                                         Analysis

      As an initial matter, we must determine whether we have

jurisdiction over Defendant’s interlocutory appeal.                         “A judgment

is either interlocutory or the final determination of the rights

of the parties.”        N.C.R. Civ. P. 54(a).

              A final judgment is one which disposes of
              the cause as to all the parties, leaving
              nothing to be judicially determined between
              them in the trial court.   An interlocutory
              order is one made during the pendency of an
              action, which does not dispose of the case,
                                           -4-
               but leaves it for further action by the
               trial court in order to settle and determine
               the entire controversy.

Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d

261,    263    (2007)    (citation      omitted).             The     10       January     2013

equitable       distribution         judgment       leaves          open        for      future

resolution the parties’ claims for permanent child custody and

permanent child support and, therefore, does not dispose of the

entire case.      As such, it is interlocutory.

       “Generally,      there   is    no   right        of    immediate         appeal    from

interlocutory orders and judgments.”                         Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).                              Review of

an   interlocutory      judgment      is    permissible,            however,       when     the

judgment (1) affects a substantial right which would be lost

absent immediate review,             N.C. Gen. Stat. § 1-277(a); or (2) is

final as to some but not all of the claims or parties and the

trial   court     has   certified      the       case    for    immediate          appellate

review pursuant to Rule 54(b) of the North Carolina Rules of

Civil Procedure.         N.C. Dep’t of Transp. v. Page, 119 N.C. App.

730, 734, 460 S.E.2d 332, 334 (1995).

       Here,     the    trial      court     did    not        make        a     Rule     54(b)

certification      as   to   the     equitable      distribution               judgment    from

which Defendant seeks to appeal.                 Thus, the dispositive question
                                           -5-
for    jurisdictional          purposes     is        whether     the    trial        court’s

judgment       affects    a    substantial        right    such      that       Defendant’s

appeal is properly before this Court.                           Turner v. Norfolk S.

Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).1

       Our courts have described a substantial right as one that

“materially affect[s] those interests which a man is entitled to

have     preserved       and    protected        by     law:     a   material         right.”

Oestreicher v. Am. Nat’l Stores, Inc., 290 N.C. 118, 130, 225

S.E.2d 797, 805 (1976) (citation and quotation marks omitted).

The party seeking to appeal from an interlocutory order has the

burden     of    establishing       that    a     substantial           right    would    be

jeopardized       unless       he   is    permitted       to     immediately          appeal.

Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262

(2001).

       Here, Defendant acknowledges the interlocutory nature of

the    trial    court’s       equitable    distribution          judgment       but    claims



1
  We note that the General Assembly has recently amended Article
1 of Chapter 50 to create a statutory right of immediate appeal
“from an order or judgment adjudicating a claim for absolute
divorce, divorce from bed and board, child custody, child
support, alimony, or equitable distribution if the order or
judgment would otherwise be a final order or judgment within the
meaning of G.S. 1A-1, Rule 54(b), but for the other pending
claims in the same action.” 2013 N.C. Sess. Law 411, § 2. This
act became effective when it was signed into law by the Governor
on 23 August 2013 and, as such, does not apply to Defendant’s
appeal, which was noticed on 4 February 2013.
                                           -6-
that the 10 January 2013 judgment affects a substantial right

based on our decision in Soares v. Soares, 86 N.C. App. 369, 357

S.E.2d 418 (1987).        We disagree.

       In Soares, the defendant sought to appeal from an order

denying     her   claim    for    alimony       and    ordering   the     sale    of   the

marital home in order to effectuate the equitable distribution

of the parties’ marital property.                     The order specifically held

open the matter for determination of the parties’ claims for

equitable distribution and child support and, thus, was “not a

final judgment by its own terms.”                      Id. at 370, 357 S.E.2d at

418.       This Court     concluded, however,             that because       the trial

court’s order required the sale of the marital residence, it

affected a substantial right and entitled the defendant to an

immediate appeal.         Id.

       Here, conversely, the trial court did not direct the sale

of   the    marital    home;     rather,    it        simply   determined    that      the

residence was Plaintiff’s separate property and that only the

value    of    the   improvements        made    during    the    parties’       marriage

constituted marital property subject to distribution.                        Defendant

does not dispute the classification of the residence in his

brief.        Instead,    he    argues    that    the     trial   court    abused      its

discretion because its “decision to distribute the equity line
                                     -7-
of   the   mortgage   debt   to    the   non-title   holder   of   the    real

property creates an untenable situation for both the Plaintiff

and the Defendant” in that Defendant is required to pay a debt

on a home he neither owns nor possesses and Plaintiff’s ability

to own and possess the home is dependent on Defendant’s ability

to pay the debt.

      Defendant has failed to demonstrate how the present case is

analogous to our decision in Soares.             Nor has he offered any

other argument as to why the trial court’s distributional scheme

would “work injury . . . if not corrected before appeal from

final judgment.”      Goldston, 326 N.C. at 726, 392 S.E.2d at 736;

see Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679

S.E.2d 512, 516 (“The appellants must present more than a bare

assertion that the order affects a substantial right; they must

demonstrate why the order affects a substantial right.”) (emphasis

in original)), disc. review denied, 363 N.C. 653, 686 S.E.2d 515

(2009); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,

379, 444 S.E.2d 252, 253 (1994) (“[I]t is the appellant’s burden to

present    appropriate   grounds   for   this   Court’s   acceptance     of   an

interlocutory appeal . . . .”).

      “Our courts have generally taken a restrictive view of the

substantial right exception. . . . [and] [i]nterlocutory appeals

that challenge only the financial repercussions of a separation
                                       -8-
or divorce generally have not been held to affect a substantial

right.”     Embler,    143   N.C.      App.   at     166,   545   S.E.2d   at   262

(determining that equitable distribution order was interlocutory

and not immediately appealable because custody, child support,

and   alimony     issues   had   not   yet    been    resolved     and   appellant

failed to show substantial right was affected).                      We conclude

that Defendant has failed to establish that a substantial right

will be affected unless he is allowed to immediately appeal from

the trial court’s 10 January 2013 judgment.                       Accordingly, we

dismiss Defendant’s appeal.

                                       Conclusion

      For   the    reasons   stated     above,     Defendant’s     interlocutory

appeal is dismissed.

      DISMISSED.

      Judges ELMORE and McCULLOUGH concur.

      Report per Rule 30(e).
