An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                     NO. COA13-779

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


DONALD R. PODREBARAC,
     Plaintiff,

      v.                                      Union County
                                              No. 08 CVD 4423
BUNTIN S. PODREBARAC,
     Defendant.


      Appeal by appellant from orders entered 13 December 2012 by

Judge N. Hunt Gwyn in Union County District Court.                  Heard in the

Court of Appeals 11 December 2013.


      Harkey Lambeth & Gunter, LLP, by Dorian H. Gunter                          and
      Jeffrey S. Williams-Tracy, for plaintiff-appellant.

      Woodruff Law Firm, P.A., by Jessica S. Bullock and Carolyn
      J. Woodruff, for defendant-appellee.


      BRYANT, Judge.


      Plaintiff     Donald     R.    Podrebarac     appeals    from       the   trial

court's    orders    denying        his   motions   to    enforce     a    mediated

settlement agreement and for a new trial and from the trial

court’s    order    awarding    post-separation          support    to    defendant
                                              -2-
Buntin     S.    Podrebarac.           For    the     reasons     set     forth    below,    we

dismiss the appeal as interlocutory.

      Plaintiff-husband              Donald      R.    Podrebarac       (“plaintiff”)       and

defendant-wife Buntin S. Podrebarac (“defendant”) were married

on   24    October          1987,      separated        on   26    December        2007,    and

subsequently divorced.                On 18 December 2008, plaintiff filed a

complaint        for        child     custody         and    equitable         distribution.

Defendant filed an answer and counterclaim for child custody,

child support, equitable distribution, post-separation support,

alimony,        and    attorneys’        fees.        Plaintiff     and      defendant     then

underwent mediation resulting in an agreement1 signed by both

parties on 29 April 2009.

      On    26        September     2011,     plaintiff         filed    a    motion   for    a

protective order and a motion to enforce the mediated settlement

agreement.            On    13   April    2012,       defendant     filed      a   motion    to

dismiss plaintiff’s motion to enforce the mediated settlement

agreement alleging that the agreement was not notarized, and

therefore, did not meet the requirements of N.C. Gen. Stat. §

50-20(d).             The    trial     court,         finding     that       the   settlement

agreement was invalid, granted defendant’s motion to dismiss.                                 A

1
  We use the term “agreement” or “mediated settlement agreement”
when referring to the document in the record entitled “Mediation
Stipulations” (but referred to by various other names when used
by the parties).
                                            -3-
formal written order granting defendant’s motion to dismiss was

entered by the trial court on 24 August 2012.

    Plaintiff          filed    a    motion     for     a    new    trial     and    in   the

alternative, a motion to reconsider or revise the order.                              On 13

December       2012,    the    trial      court       entered      an   order       granting

defendant’s counterclaim against plaintiff for post-separation

support.       At the same time, the trial court entered an order

denying    plaintiff’s         motion     for     a    new    trial     and    alternative

motion    to    reconsider          or   revise       its    24    August     2012    order.

Plaintiff appeals.

                                _______________________

    Plaintiff argues that the trial court erred: (I) by denying

plaintiff’s motion to enforce the mediated settlement agreement;

(II) by denying plaintiff’s motion for a new trial; and (III) by

entering an order for post-separation support.

                                     Interlocutory appeal

    Plaintiff concedes that the orders from which he appeals

did not dispose of his claims for child custody or equitable

distribution, and therefore, the orders are interlocutory.                                As

the trial court’s ruling did not dispose of plaintiff’s claims

for child custody and equitable distribution but instead only

disposes of plaintiff’s plea in bar to those claims as set forth
                                         -4-
in    the   mediated   settlement    agreement,         the   court’s    ruling    is

indeed interlocutory.         Veazey v. City of Durham, 231 N.C. 357,

361—62, 57 S.E.2d 377, 381 (1950); see also Garris v. Garris, 92

N.C. App. 467, 469—70, 374 S.E.2d 638, 640 (1988) (holding that

a trial court’s ruling denying the defendant’s claim that the

plaintiff had waived her rights to equitable distribution and

alimony was interlocutory because the ruling only disposed of

the    defendant’s     plea   at   bar     to    the   plaintiff’s      claims    for

equitable distribution and alimony).

       Plaintiff   argues     he   would    be    deprived     of   a   substantial

right should we dismiss his appeal.                    Alternatively, plaintiff

asks that, should this Court not grant a right to appeal, we

treat his appeal as a petition for writ of certiorari and grant

discretionary review.

                  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,
             but leaves it for further action by the
             trial court in order to settle and determine
             the entire controversy.

Tridyn Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 488, 251

S.E.2d 443, 445 (1979) (citation and ellipsis omitted).

             [A]n interlocutory order can be immediately
             appealed if the order is final as to some
                                           -5-
            but not all of the claims or parties and the
            trial court certifies there is no just
            reason to delay the appeal [pursuant to]
            N.C.R.   Civ.   P.    54(b).       Second,   an
            interlocutory   order    can   be   immediately
            appealed under N.C. Gen. Stat. §§ 1-277(a)[]
            and 7A-27(d)(1)[] “if the trial court's
            decision   deprives    the   appellant   of   a
            substantial right which would be lost absent
            immediate review.”

Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695

(1996) (citation omitted).

       An interlocutory order is immediately appealable when "the

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

28(b)(4) (2013).          To determine whether an interlocutory order is

immediately appealable "we utilize a two-part test, with the

first inquiry being whether a substantial right is affected by

the    challenged         order    and    the     second    being        whether   this

substantial       right    might    be    lost,   prejudiced,       or    inadequately

preserved in the absence of an immediate appeal."                          Hamilton v.

Mortg. Info. Servs., 212 N.C. App. 73, 78, 711 S.E.2d 185, 189

(2011) (citations omitted).               "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."     Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274,

277—78, 679 S.E.2d 512, 516 (2009) (citation omitted).
                                           -6-
       We now review each of plaintiff’s interlocutory issues to

determine if a substantial right exists that requires appellate

review at this time.

                                                 I.

       In his motion to enforce the mediated settlement agreement,

plaintiff      alleged       that   defendant     wrongfully        failed        to    comply

with the mediated settlement agreement after defendant ratified

the    mediation       stipulations       with        plaintiff.          Plaintiff         now

contends    that       the    trial     court    order      denying    his    motion        to

enforce     the       mediated      settlement         agreement      has    affected        a

substantial right. Plaintiff asserts that he was denied a right

to an evidentiary hearing on his motion, and that his right to a

hearing     would       be     “irrevocably           lost”      absent      an        appeal.

Plaintiff’s       argument      lacks    merit,       as   the    mediated    settlement

agreement       was     the    product      of        mediation     sessions           between

plaintiff and defendant, rather than a formal adjudication by

the    trial    court.         By     ruling     that      the   mediated     settlement

agreement was unenforceable, the trial court did not prejudice

or    prevent     plaintiff      from    seeking       further     resolution          of   his

claims for child custody and equitable distribution.                                   Rather,

the trial court’s denial of plaintiff’s motion to enforce the

mediated settlement agreement simply sends both parties back to
                                    -7-
their respective starting points to create a new enforceable

mediated settlement agreement.       As such, plaintiff has failed to

show that the trial court’s order affected a substantial right.

Plaintiff’s first argument on appeal is dismissed.

                                    II.

    Plaintiff, acknowledging that the trial court’s denial of

his motion for a new trial is interlocutory, nevertheless argues

that the trial court erred in denying his motion for a new trial

because under Rule 59(a), by denying plaintiff the ability to

present   evidence     and   witnesses    as   to    the     validity     of    the

mediated settlement agreement, the trial court both abused its

discretion and erred as a matter of law.                 Plaintiff’s argument,

similar   to   his   first   argument,    fails     to    show   how    the   trial

court’s order        deprived plaintiff of a substantial right.                  By

finding the agreement unenforceable, the trial court has not

prejudiced or injured plaintiff such that he cannot proceed to

trial or proceed with new mediation sessions to create a new

settlement agreement.        See Blackwelder v. State Dep’t of Human

Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983) (holding

that “avoidance of a rehearing or trial is not a ‘substantial

right’ entitling a party to an immediate appeal”).                     Plaintiff’s

second argument on appeal is dismissed.
                                           -8-
                                           III.

        Thirdly, plaintiff argues that our failure to address the

trial court’s granting of post-separation support to defendant

will put plaintiff at risk of inconsistent trial verdicts.                              We

disagree, as our determination that the trial court did not err

in finding the mediated settlement agreement unenforceable does

not    expose    plaintiff     to    the    risk    of    inconsistent        verdicts.

Rather, the invalidity of the agreement only exposes plaintiff

to the need to undergo either new mediation sessions or to seek

judicial determination of a settlement agreement.

       Plaintiff cites Honeycutt v. Honeycutt, 208 N.C. App. 70,

701 S.E.2d 689 (2010), and Buffington v. Buffington, 69 N.C.

App. 483, 317 S.E.2d 97 (1984), as support for his contention

that    the    trial    court’s     award    of    post-separation          support     to

defendant puts plaintiff at risk of inconsistent trial verdicts.

       In     Honeycutt,    both     parties       entered     into     a    separation

agreement       and    property     settlement.          The   plaintiff       filed    an

action against the defendant two years later seeking rescission

of    the   agreement,      equitable      distribution,        child       support    and

attorneys’ fees.         The defendant counterclaimed for child support

and restoration of the original agreement and filed a motion for

summary judgment.          The trial court granted the defendant partial
                                           -9-
summary judgment as to the plaintiff’s claims for rescission and

equitable distribution.             On appeal, we granted the plaintiff’s

interlocutory appeal because the trial court’s order granting

partial summary judgment affected the plaintiff’s substantial

rights      regarding   “piecemeal       litigation.”         Specifically,          this

Court held that “the trial court's order completely disposed of

plaintiff's equitable distribution claim and has the effect of

‘preventing      adjudication         of     defendant's       counterclaim           and

plaintiff's claims in a single lawsuit[.]’"                   Honeycutt, 208 N.C.

App. at 76, 701 S.E.2d at 693 (citation omitted).

       In    Buffington,     both    parties      entered     into     a    separation

agreement.      The plaintiff then filed for specific performance of

the separation agreement; the defendant counterclaimed alleging

that   the    agreement    was   void,      seeking     equitable      distribution.

Both   parties    filed    motions       for     summary    judgment       as   to   the

enforceability of the agreement.                  The trial court granted the

plaintiff’s motion, holding that the agreement was enforceable.

As     in     Honeycutt,      this       Court     allowed      the        defendant’s

interlocutory      appeal,    noting       that    as   the    grant       of   summary

judgment      completely     disposed       of    the   defendant’s        claim      for

equitable      distribution,        it     affected     a     substantial        right.

Buffington, 69 N.C. App. at 486, 317 S.E.2d at 98—99 (“The trial
                                             -10-
court’s order [granting summary judgment] affects a substantial

right    of   defendant       by     preventing      adjudication            of    defendant’s

counterclaim and plaintiff’s claims in a single lawsuit.”).

       Honeycutt and Buffington are not applicable to the instant

matter.       Here, plaintiff appeals from the trial court’s order

awarding      post-separation          support,       an    order       which       does     not

dispose       of    any     of     plaintiff’s       claims        against         defendant.

Moreover,       “[t]his     Court     has     explained         that    ‘[p]ostseparation

support is only intended to be temporary and ceases when an

award    of    alimony      is     either    allowed       or    denied       by    the    trial

court.’"      Langdon v. Langdon, 183 N.C. App. 471, 474, 644 S.E.2d

600,    603   (2007)       (citation       omitted).        As    such,       an    order    for

post-separation           support    is     interlocutory.             Id.        “Further,    a

trial court's findings and conclusions in connection with an

award of postseparation support are not binding in connection

with the ultimate outcome of the claim for alimony.”                                    Wells v.

Wells,    132      N.C.    App.     401,    411,    512    S.E.2d      468,       474    (1999).

Accordingly, as the trial court’s order awarding post-separation

support “is a temporary measure, it is interlocutory, it does

not affect a substantial right, and it is not appealable[,]”

plaintiff’s argument is not appealable.                         Rowe v. Rowe, 131 N.C.

App. 409, 411, 507 S.E.2d 317, 319 (1998).
                                     -11-
                       Petition for writ of certiorari

    In   the   alternative,    plaintiff      petitions    this    Court   for

certiorari,    which    we   decline    to    grant.      Having    reviewed

plaintiff’s arguments for purposes of interlocutory review, it

is unlikely plaintiff would be granted any relief on appeal

should   we   allow    substantive   review    of   the   issues   plaintiff

brought forth in his brief.

    Dismissed.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
