                                   NO. COA13-1472

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 19 August 2014


MICHELLE D. SARNO,
     Plaintiff,

    v.                                        Mecklenburg County
                                              No. 09-CVD-5222
VINCENT J. SARNO,
     Defendant.


    Appeal by Plaintiff and Defendant from Order entered 24

April   2013   by    Judge   Ronald    L.     Chapman   in    District   Court,

Mecklenburg County.       Heard in the Court of Appeals 4 June 2014.


    The Law Office of Richard B. Johnson, P.A., by Richard B.
    Johnson, for plaintiff-appellant, cross-appellee.

    Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant-
    appellee, cross-appellant.


    STROUD, Judge.


    Plaintiff       and   defendant    each    appeal   from    an   order   for

permanent child support and attorney fees.                   Because the order

from which the parties have appealed is interlocutory and they

have failed to argue that they are entitled to an interlocutory

appeal based upon impairment of a substantial right, we dismiss

both parties’ appeals.

                              I.      Background
                                       -2-
    Plaintiff and defendant were married in 2000 and one child

was born to their marriage, in 2003.             They separated in 2006 and

later divorced.        In 2009, plaintiff filed a complaint including

claims for child custody and support, and defendant filed an

answer and counterclaims also seeking custody, child support,

and attorney’s fees.         Trial on the issues of child support and

custody began on 6 June 2011 and 7 June 2011.                 On 23 March 2012,

the trial court entered an order of permanent child custody,

which specifically reserved the issue of child support for later

determination.        In the custody order, the trial court concluded

that “[t]here was insufficient time to hear evidence and rule on

claims for child support and attorney fees and the court retains

jurisdiction to rule on this issue.”             On 24 July 2012, plaintiff

filed   a    motion    to   modify   custody     based   on    several     alleged

changes     of   circumstances,      including    claims      that   the   custody

order was based upon the fact that plaintiff had planned to move

to Vermont at the time of the June 2011 hearing, but she had

since decided to remain in North Carolina.

    The trial court resumed trial on the issue of permanent

child support on 14 September 2012.            On 24 April 2013, the trial

court entered an order for permanent child support and attorney

fees.       In this order, the trial court found that plaintiff’s
                                              -3-
motion    to    modify    custody,      filed        on    24     July       2012,    was    still

pending.         The    trial     court     found         that     at    the       2011     trial,

plaintiff       had     maintained      “with        certainty”          that        she     would

relocate to Vermont on 15 July 2011 and sought primary custody

of the minor child.               The permanent custody order had awarded

primary    custody       of     the    child    to        defendant          and     had    set   a

visitation schedule based upon the fact that plaintiff would be

residing       in    Vermont     and    the    defendant           and       child     in    North

Carolina,       with     “extended      time        in     the     summers           and    school

holidays”       but      “not     enough       overnights”              to     require        that

plaintiff’s child support be established under Schedule B of the

Child Support Guidelines.

    The        trial    court    also     found      that       despite       the     visitation

schedule established in the custody order, since plaintiff had

remained       in      North     Carolina,          she     had     actually           exercised

additional      weekend        visitation      during       the    school          year,    beyond

that dictated by the custody order.                       The trial court found that

“plaintiff’s testimony of her overnights did not convince the

court of an exact amount of parenting time” and that defendant’s

theory for          calculating the parties’ overnights was “confusing.”

The trial court found that plaintiff had 135 overnight visits

per year, sufficient for child support to be set on Worksheet B,
                                             -4-
but based upon the uncertainty of the exact amount of visitation

as well as additional findings of fact regarding the parties’

financial situations and sharing of expenses, established child

support accordingly, based upon Schedule A.                           The trial court

also    found    that    “while      there    is   a    motion   to    modify   custody

outstanding, child support needs to be established based on the

current order and practice of the parties.”

       The trial court also made findings, when addressing the

issue of attorney’s fees, as to the delay in the progress of the

case.     The court found that “procedurally, this case has been

slowed    by    the     heavy    case   load       of   the   court     system,   trial

strategy decisions by the Plaintiff’s counsel, the health issues

of the prior trial counsel, as well as personal decisions by

Plaintiff.”      One of these decisions was that “after receiving an

undesirable result in the custody [matter], Plaintiff changed

course,    and     opted        to   stay     in    North     Carolina,    presumably

believing that this would negate the effects of the Court’s

ruling.”       According to the record before us, plaintiff’s motion

for modification of custody remains outstanding.

                           II.       Interlocutory Order

       Although neither party has raised the issue, it is apparent

from the provisions of the child support order on appeal that we
                                   -5-
must first consider whether this order is a final, appealable

order.

           Generally, there is no right of immediate
           appeal   from   interlocutory   orders   and
           judgments. 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. On the other hand, 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.

Hausle v. Hausle, ___ N.C. App. ___, ___, 739 S.E.2d 203, 205-06

(2013) (citations and quotation marks omitted). “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.” Peters

v. Peters, ___ N.C. App. ___, ___, 754 S.E.2d 437, 439 (2014)

(citation, quotation marks, and brackets omitted). “In the child

support context, an order setting child support is not a final

order    for   purposes   of   appeal    until   no   further   action   is

necessary before the trial court upon the motion or pleading

then being considered.” Banner v. Hatcher, 124 N.C. App. 439,

441, 477 S.E.2d 249, 250 (1996).

    We have said in the child custody context that
                                          -6-
           [a] trial court’s label of a custody order
           as “temporary” is not dispositive. A custody
           order is, in fact, temporary if either (1)
           it is entered without prejudice to either
           party, (2) it states a clear and specific
           reconvening time in the order and the time
           interval   between  the   two  hearings  was
           reasonably brief; or (3) the order does not
           determine all the issues.

Sood v. Sood, ___ N.C. App. ___, ___, 732 S.E.2d 603, 606 (2012)

(citations and quotation marks omitted), cert. and disc. rev.

denied, and app. dismissed, 366 N.C. 417, 735 S.E.2d 336 (2012).

These rules logically apply to the child support context as

well. Indeed, support and custody are normally addressed in the

same order if the two claims are heard at the same trial, as

they were here.         The unusual procedural feature here was the

bifurcation of the issues by issuing two separate orders based

upon the one trial, with plaintiff’s motion to modify custody

being filed in between the first and second sessions of the

trial.     This    unusual      procedural      posture    was   created   by   a

combination of the plaintiff’s actions and circumstances beyond

the control of the parties or the trial court, but still it

resulted   in     an    order     which     fails   to    provide   a   complete

resolution of all issues.

    Although      the     child     support     order     was    labeled   as   a

“permanent” order and did not set a specific hearing date for a
                                           -7-
hearing upon plaintiff’s pending motion, the provisions of the

order address in detail some of the changes in circumstances

since the custody order, such as plaintiff’s decision to remain

in North Carolina, which may necessitate additional change in

the child support obligation as well.                     In fact, one of the

primary issues was how much custodial time is being exercised by

plaintiff, including consideration of the actual visitation, as

practiced by the parties, compared to the visitation dictated by

the   existing        custody   order,     and    the   establishment        of   child

support depends heavily upon this determination.                     This order did

not resolve all pending issues, due to plaintiff’s outstanding

motion to modify custody, which the trial court acknowledged by

various      findings      in     the     child    support     order        addressing

plaintiff’s outstanding motion, clearly anticipating that the

child support issue would need to be revisited after plaintiff’s

motion to modify is heard.               Addressing the parties’ contentions

at    this     time    would    result    in     “fragmentary,       premature,     and

unnecessary appeals[.]” Peters, ___ N.C. App. at ___, 754 S.E.2d

at 439.

       For an interlocutory order to be immediately appealable,

either    the    trial    court    must    certify      the   case    for   immediate

appeal    or    the    appellant    must    demonstrate       that    a   substantial
                                        -8-
right will be impaired by delay in the appeal. Id.                  The parties

have not acknowledged that the order is interlocutory and have

not made any argument as to any substantial interest which would

be impaired by delay.          See id. at ___, 754 S.E.2d at 441 (noting

that   orders      affecting    only   “the   financial    repercussion   of   a

separation or divorce” generally do not affect a substantial

right). Therefore, both parties’ appeals must be dismissed.1

                                III. Conclusion

       For   the    foregoing    reasons,     we   must   dismiss   plaintiff’s

appeal as interlocutory.

       DISMISSED.

       Judges STEPHENS and MCCULLOUGH concur.




1
  We note that the Legislature recently enacted Session Law 2013-
411, codified at N.C. Gen. Stat. § 50-19.1 (2013), which governs
appeals of certain interlocutory family law orders. However,
this statute only became effective 23 August 2013, after the
order on appeal was entered. 2013 N.C. Sess. Laws ch. 411, § 2.
Therefore, it does not apply here and we express no opinion on
how it would affect our analysis.
