                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA18-761

                                  Filed: 19 February 2019

Orange County, No. 16 CVD 493

MARK STEVEN BEZZEK, Plaintiff

               v.

SHERRY LEE BEZZEK, Defendant.


        Appeal by defendant from order entered 27 February 2018 by Judge Joseph M.

Buckner in District Court, Orange County. Heard in the Court of Appeals 30 January

2019.


        No brief filed for plaintiff-appellee.

        M. Noah Oswald, for defendant-appellant.


        STROUD, Judge.


        In April of 2016, plaintiff filed a complaint for absolute divorce and equitable

distribution. On 31 May 2016, defendant filed an answer to the complaint which

admitted the allegations relevant to absolute divorce but also included a motion to

dismiss the claim for equitable distribution, alleging the parties had entered into a

“Separation Agreement” (“Agreement”) which “addressed the matters of equitable

distribution” and thus “waived their right to equitable distribution by the express

terms thereof.” On 28 June 2016, the trial court entered an order of absolute divorce

acknowledging the Agreement but ultimately reserving the issue of equitable

distribution for further proceedings.
                                 BEZZEK V. BEZZEK

                                  Opinion of the Court



      On 2 December 2016, plaintiff filed a motion to rescind or set aside Agreement

based upon fraud, duress, undue influence, Wife’s failure to disclose assets,

unconscionability, and in the alternative, impossibility of performance.    Husband

also filed a motion for establishment of child support, alleging that he was unable to

pay the child support established by the Agreement and requesting the trial court to

set child support according to the North Carolina Child Support Guidelines. The trial

court held a hearing on Husband’s motion to set aside the Agreement on 23 August,

5 September, and 28 September 2017, and on 27 February of 2018, the trial court

entered an order with extensive findings of fact regarding Wife’s fraud; failure to

disclose many assets to Husband, in breach of paragraph 14 of the Agreement; duress;

undue influence; unconscionability; and impossibility. The trial court concluded that

Husband was entitled to relief and that the Agreement was void. The trial court

decreed that:

             1.     The June 25, 2015 Contract of Separation and
             Martial Settlement Agreement is rescinded, set aside, and
             void and of no legal effect;
             2.     Plaintiff may proceed on his claim of Equitable
             Distribution.

      Defendant filed a notice of appeal from the 27 February 2018 order. In the

“STATEMENT OF GROUNDS FOR APPELLATE REVIEW” in her brief, Wife claims

simply that “Judge Buckner’s February 27, 2018 Order is a final judgment from a

district court in a civil action, and appeal therefore lies to the Court of Appeals



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                                          BEZZEK V. BEZZEK

                                          Opinion of the Court



pursuant to N.C. Gen. Stat. § 7A-27(b).” But the order is not a final order, since the

equitable distribution claim is still pending before the trial court.1

                 A final judgment is one which disposes of the cause as to
                 all the parties, leaving nothing to be determined between
                 them in the trial court. An interlocutory order, on the other
                 hand, 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.

Cagle v. Teachy, 111 N.C. App. 244, 246–47, 431 S.E.2d 801, 803 (1993) (citation

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. Otherwise, the appeal is subject to
                 dismissal.

Peters v. Peters, 232 N.C. App. 444, 447, 754 S.E.2d 437, 440 (2014) (citation,

quotation marks, and brackets omitted).

         Wife has the burden of establishing a right to appeal this interlocutory order:

                 Rule 28(b) of the North Carolina Rules of Appellate
                 Procedure provides, in relevant part:
                       An appellant’s brief shall contain a statement
                       of the grounds for appellate review. Such
                       statement shall include citation of the statute
                       or statutes permitting appellate review.
                       When an appeal is interlocutory, the
                       statement must contain sufficient facts and


1   The motion for establishment of child support was also still pending according to our record.

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                                 BEZZEK V. BEZZEK

                                 Opinion of the Court



                   argument to support appellate review on the
                   ground that the challenged order affects a
                   substantial right.
            While our Supreme Court has held that noncompliance
            with nonjurisdictional rules such as Rule 28(b) normally
            should not lead to dismissal of the appeal, when an appeal
            is interlocutory, Rule 28(b)(4) is not a nonjurisdictional
            rule. Rather, the only way an appellant may establish
            appellate jurisdiction in an interlocutory case (absent
            Rule 54(b) certification) is by showing grounds for
            appellate review based on the order affecting a substantial
            right.

Edwards v. Foley, ___ N.C. App. ___, ___, 800 S.E.2d 755, 756 (citations, quotation

marks, ellipses, and brackets omitted), writ of supersedeas and petition for disc.

review denied, 370 N.C. 377, 807 S.E.2d 571 (2017).

      The trial court did not certify the order for review under Rule 54(b), so Wife

must show that she has

            been deprived of a substantial right pursuant to N.C. Gen.
            Stat. §§ 1–277 and 7A–27(d)(1). This Court has stated that
            to be immediately appealable on the foregoing basis, a
            party has the burden of showing that: (1) the judgment
            affects a right that is substantial; and (2) the deprivation
            of that substantial right will potentially work injury to him
            if not corrected before appeal from final judgment.
            Whether a substantial right will be prejudiced by delaying
            appeal must be determined on a case by case basis.

Collins v. Talley, 135 N.C. App. 758, 760, 522 S.E.2d 794, 796 (1999) (citation

omitted). Wife has made no argument of any deprivation of a substantial right that

would be lost without immediate appeal, so she has not carried her burden under

Rule 28. See Edwards, ___ N.C. App. at ___, 800 S.E.2d at 756.


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                                        BEZZEK V. BEZZEK

                                         Opinion of the Court



       In the absence of showing deprivation of a substantial right, although not

mentioned by defendant, this Court has jurisdiction to review some interlocutory

family law orders under North Carolina General Statute § 50-19.1, but an order

ruling upon the validity of a separation agreement is not specifically enumerated as

one such order:

                      Notwithstanding any other pending claims filed in
               the same action, a party may appeal from an order or
               judgment adjudicating a claim for absolute divorce, divorce
               from bed and board, the validity of a premarital agreement
               as defined by G.S. 52B-2(1), 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.

N.C. Gen. Stat. Ann. § 50-19.1 (2018).2 The order on appeal does not fall within the

types of orders set forth in N.C. Gen. Stat. S 50-19.1, and we cannot simply add the

validity of a separation and property settlement agreement to this list.

       We have also considered whether we should suspend the requirements of the

Rules of Appellate Procedure to grant review by certiorari under Rule 2.

                     Rule 2 of the North Carolina Rules of Appellate
               Procedure permits this Court to suspend or vary the
               requirements of the Rules to prevent manifest injustice to


2 North Carolina General Statute § 50-19.1 was first adopted in 2013, and it originally did not include
“the validity of a premarital agreement as defined by G.S. 52B-2(1)” in the list of orders for which an
interlocutory appeal could be taken; this language was added by an amendment in 2018. See N.C.
Gen. Stat. § 50-19.1 Editor’s Note. North Carolina General Statute § 52B-2(1) defines a “Premarital
agreement” as “an agreement between prospective spouses made in contemplation of marriage and to
be effective upon marriage.” N.C. Gen. Stat. § 52B-2(1) (2017).


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                                    BEZZEK V. BEZZEK

                                    Opinion of the Court



              a party, or to expedite decision in the public interest. We
              exercise our authority under Rule 2 to consider the parties’
              appeals as petitions for certiorari, and we grant certiorari
              to review the trial court’s interlocutory order.

       Brown v. City of Winston-Salem, 171 N.C. App. 266, 269–70, 614 S.E.2d 599,

601–02 (2005) (quotation marks and brackets omitted). We have also considered

treating Wife’s brief as a petition for certiorari and allowing review under Rule 2, but

in our discretion, we decline to do so. See State v. Campbell, ___ N.C. App. ___, ___,

810 S.E.2d 803, 814 (“The decision to allow review under Rule 2 is discretionary[.]”),

writ of supersedeas and disc. review allowed, ___ N.C. ___, 813 S.E.2d 849 (2018).

First, Wife did not request a suspension of the Rules under Rule 2. Also, Husband

did not file a brief in this appeal, and he may have decided not to file a brief in reliance

upon Wife’s failure to establish this court’s jurisdiction to consider her appeal.

       “It is the court’s duty to dismiss an appeal sua sponte when no right of appeal

exists.” Collins, 135 N.C. App. at 762, 522 S.E.2d at 798. Since the validity of the

Agreement is the only substantive issue addressed in the order appealed, and Wife

has not made any argument regarding deprivation of a substantial right, we must

dismiss this appeal as interlocutory. See Peters, 232 N.C. App. at 447, 754 S.E.2d at

440.

       DISMISSED.

       Judges DIETZ and BERGER concur.




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