{ "id": 8352703, "name": "STEVE McINTYRE, Plaintiff v. VICKI McINTYRE, Defendant", "name_abbreviation": "McIntyre v. McIntyre", "decision_date": "2006-01-17", "docket_number": "No. COA05-344", "first_page": "558", "last_page": "564", "citations": [ { "type": "official", "cite": "175 N.C. App. 558" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "561 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "513", "parenthetical": "\"moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party\"" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9129209 ], "year": 2002, "pin_cites": [ { "page": "477", "parenthetical": "\"moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0475-01" ] }, { "cite": "299 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520808 ], "year": 1983, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0331-01" ] }, { "cite": "477 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "251", "parenthetical": "quoting Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889739 ], "year": 1996, "pin_cites": [ { "page": "442", "parenthetical": "quoting Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0439-01" ] }, { "cite": "285 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "281-82", "parenthetical": "monetarypendente lite orders not immediately appealable" }, { "page": "282" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527082 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "251", "parenthetical": "monetarypendente lite orders not immediately appealable" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0250-01" ] }, { "cite": "303 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "607", "parenthetical": "order requiring return of property to marital home pending disposition of equitable distribution and divorce actions not immediately appealable" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 744", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524977 ], "year": 1983, "pin_cites": [ { "page": "745", "parenthetical": "order requiring return of property to marital home pending disposition of equitable distribution and divorce actions not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0744-01" ] }, { "cite": "486 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "245-46", "parenthetical": "interim equitable distribution order not immediately appealable" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712954 ], "year": 1997, "pin_cites": [ { "page": "708", "parenthetical": "interim equitable distribution order not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0705-01" ] }, { "cite": "507 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "319", "parenthetical": "order of post-separation support not immediately appealable" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200649 ], "year": 1998, "pin_cites": [ { "page": "411", "parenthetical": "order of post-separation support not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0409-01" ] }, { "cite": "520 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155667 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0094-01" ] }, { "cite": "515 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "44" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11217603 ], "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0163-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "434", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "209", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "231 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629801 ], "year": 1950, "pin_cites": [ { "page": "361-62", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0354-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2001, "pin_cites": [ { "page": "261", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a)" }, { "page": "261" }, { "page": "262", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" }, { "page": "262-63" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "164", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a)" }, { "page": "165" }, { "page": "166" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] } ], "analysis": { "cardinality": 723, "char_count": 14701, "ocr_confidence": 0.734, "pagerank": { "raw": 1.1249871975591238e-07, "percentile": 0.5743888929431793 }, "sha256": "bce2dc7decf9a318791891e294833381855f24213dff4411b67671a9b2f59612", "simhash": "1:63a9d2fe4caf14ea", "word_count": 2308 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEELMAN concur." ], "parties": [ "STEVE McINTYRE, Plaintiff v. VICKI McINTYRE, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nSteve McIntyre (\u201cplaintiff\u2019) appeals the trial court\u2019s 27 June 2000 order denying his motion for partial summary judgment on the equitable distribution claim of Vicki McIntyre (\u201cdefendant\u201d). Plaintiff and defendant appeal the trial court\u2019s 31 July 2001 order (\u201cthe Order\u201d) allowing the equitable distribution trial to proceed, as well as the court\u2019s 3 December 2004 judgment (\u201cthe Judgment\u201d) awarding the parties certain separate and marital property. For the reasons discussed herein, we are compelled to dismiss the appeal.\nPertinent factual and procedural background information includes the following: Plaintiff and defendant married 17 July 1986 in Lexington, North Carolina. Following a 22 December 1999 separation, they were divorced 28 January 2002. Plaintiff initiated the instant action by filing a 24 August 1999 complaint seeking divorce from bed and board and division of the parties\u2019 separate and marital property. Defendant responded with a 25 October 1999 answer and counterclaim, requesting, inter alia, equitable distribution of the parties\u2019 property as well as provision of post-separation support and permanent alimony commensurate with defendant\u2019s needs. In his reply filed 4 November 1999, plaintiff countered that an attached document entitled \u201cPrenuptial. Agreement\u201d (\u201cthe Agreement\u201d) barred defendant\u2019s \u201cmartial rights in the real estate and personal property of [] plaintiff and particularly with regard to claims for alimony and equitable distribution . . . .\u201d\nThe Agreement, signed by both parties and dated 17 July 1986, provides as follows:\nTHAT WHEREAS, said parties have agreed to be married, each to the other; and WHEREAS said parties each own property; and WHEREAS said parties, deeming the same to be just and fair to the other party, have mutually agreed as herein set out:\nNOW, THEREFORE, in consideration of said contemplated marriage and of the covenants hereby entered into, the parties mutually agree as follows:\nFIRST: STEVE A. McINTYRE hereby releases, renounces and forever quitclaims to VICKIE [sic] GAIL TRUELL all right, title, interest, claim and demand whatsoever including all marital rights in the real estate and personal property of VICKIE [sic] GAIL TRUELL and agrees that VICKIE [sic] GAIL TRUELL may at all times hereafter purchase, acquire, own[,] hold, possess, encumber, dispose of and convey any and all kinds and classes of property, both real and personal, as though still unmarried and without the consent, joinder or interference of the party of steve a. mcintyre.\nSECOND: VICKIE [sic] GAIL TRUELL hereby releases, renounces and forever quitclaims to STEVE A. McINTYRE all right, title, interest, claim and demand whatsoever including all marital rights in the real estate and personal property of STEVE A. McINTYRE and agrees that STEVE A. McINTYRE may at all times hereafter purchase, acquire, own, hold, possess, encumber, dispose of and convey any and all kinds of classes of property, both real and personal, as though still unmarried and without the consent, joinder or interference of VICKIE [sic] GAIL TRUELL.\nCiting the Agreement, plaintiff moved for partial summary judgment, contending no genuine issue of material fact remained regarding defendant\u2019s claim for equitable distribution. In an order entered 27 June 2000, Judge Victoria L. Roemer denied plaintiffs motion. On 24 April 2001, Judge Laurie L. Hutchens allowed defendant\u2019s motion to amend her answer and counterclaim to allege duress and undue influence, fraud and misrepresentation, unconscionability and inadequate disclosure, and unenforceability in relation to the Agreement.\nJudge Chester C. Davis conducted a hearing on 6 July 2001, following which he entered the Order. Judge Davis found as fact therein that the Agreement did not prohibit defendant\u2019s claims to marital property, and further that because\nthe terms of the Agreement distinguish the property that the parties owned at the time of their marriage rather than property acquired after their marriage ... the [Agreement] simply provided that [plaintiff] and [defendant] were \u201cfree traders.\u201d\nBased in part upon the foregoing findings, Judge Davis concluded as a matter of law that defendant was not \u201cinfluenced, coerced or under duress\u201d when she signed the Agreement and that the document did not \u201cdetermine the property interest of the parties as to property acquired following their marriage on July 17,1986.\u201d Ultimately, Judge Davis ruled defendant\u2019s equitable distribution claim was not barred by the Agreement and could proceed to a trial on the merits \u201cas to all property acquired following the parties\u2019 marriage . . . without prejudice to either party\u2019s right to argue classification and distribution issues pursuant to N.C.G.S. \u00a7 50-20 . . . .\u201d\nThe case proceeded to trial in April 2004. Following 20 April, 17 May, 18 May, and 21 June 2004 hearings, Judge Davis determined an equal distribution of the parties\u2019 property was \u201cboth just and fair.\u201d On 3 December 2004, Judge Davis entered the Judgment, finding as fact he\nha[d] previously ruled . . . that the real estate and personal property stated in the document referred to as the \u201cPrenuptial Agreement\u201d applied to the property in existence as of the date of the partiesf] marriage, and therefore Equitable Distribution could continue with respect to property acquired after the parties\u2019 marriage.\nAfter classifying and valuing the parties\u2019 assets, Judge Davis awarded certain property to each party and ordered defendant to pay plaintiff $25,478.16 within thirty days.\nPlaintiff appeals Judge Roemer\u2019s 27 June 2000 order, and both parties appeal the Order and the Judgment of Judge Davis.\nPlaintiff contends the trial court erred by: (i) determining the Agreement was a \u201cfree trader\u201d agreement which did not bar defendant\u2019s claim for equitable distribution; and (ii) considering a Douglas Form book in its determination. Defendant contends the trial court erred by: (i) declining to set aside the Agreement entirely due to duress and undue influence on the part of plaintiff; (ii) failing to consider the effects of appreciation and improvements to the parties\u2019 property during marriage; and (iii) distributing the parties\u2019 property equally. However, we are unable to reach the merits of the parties\u2019 contentions because the appeal is interlocutory.\nIn the case sub judice, the parties appeal various trial court rulings which resolve the issue of equitable distribution but leave open the related issue of alimony. Judicial orders are \u201ceither \u2018interlocutory or the final determination of all rights of the parties.\u2019 \u201d Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261 (2001) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a)).\nA 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.\nVeazey v. Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted).\nWhile a final judgment is always appealable, an interlocutory order may be appealed immediately only if (i) the trial court certifies the case for immediate appeal pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b), or (ii) the order \u201caffects a substantial right of the appellant that would be lost without immediate review.\u201d Embler, 143 N.C. App. at 165, 545 S.E.2d at 261. \u201cThis rule is grounded in sound policy considerations^]\u201d id., including the prevention of \u201cfragmentary and premature appeals that unnecessarily delay the administration of justice\u201d and the assurance that \u201cthe trial divisions fully and finally dispose of the case before an appeal can be heard,\u201d Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980) (citations omitted).\nBoth plaintiff and defendant concede the \u201coutstanding alimony claim ... remains to be heard in this case[,]\u201d and thus do not contest the interlocutory nature of their appeal. Without question, moreover, neither the Order nor the Judgment contains certification by the trial court for immediate appeal pursuant to N.C.G.S. \u00a7 1A-1, Rule 54. Nonetheless, the parties in effect lay claim to the \u201csubstantial right\u201d exception by maintaining appeal has been taken herein \u201cin the interest of judicial economy.\u201d They request\nthat this Court determine whether or not the equitable distribution orders are proper prior to the alimony hearing in order for the trial court in the alimony hearing to accurately consider the parties\u2019 financial standing in the event that alimony is awarded.\nThe parties further assert that\n[b]y completing the equitable distribution portion of the case, the parties avoid the time and expense of trying an alimony case, only to retry the issue of alimony in the event that this Court reverses and/or vacates the equitable distribution orders. the matter could have been heard on its merits and a final order entered by the District Court . . . months before the appeal reached this court for disposition. . . . The avoidance of deprivation due to delay is one of the purposes for the rule that interlocutory orders are not immediately appealable.\nUnfortunately for the parties, these arguments, while perhaps persuasive at first blush, have previously been resolved against them by this Court.\n\u201cWhether an interlocutory appeal affects a substantial right is determined on a case by case basis.\u201d Embler, 143 N.C. App. at 166, 545 S.E.2d at 262 (citation omitted). \u201cOur courts generally have taken a restrictive view of the substantial right exception!,]\u201d id. (citation omitted), requiring the appellant to \u201cestablish that a substantial right will be affected unless he is allowed immediate appeal\u201d and rejecting for review those \u201c[ijnterlocutory appeals that challenge only the financial repercussions of a separation or divorce . . . .\u201d Id.; see also Stafford v. Stafford, 133 N.C. App. 163, 164, 515 S.E.2d 43, 44 (appeal seeking immediate review of date of separation used by trial court in absolute divorce judgment held not to affect a substantial right where date relevant only to equitable distribution claim), aff\u2019d per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999); Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319 (1998) (order of post-separation support not immediately appealable); Hunter v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d 244, 245-46 (1997) (interim equitable distribution order not immediately appealable); Dixon v. Dixon, 62 N.C. App. 744, 745, 303 S.E.2d 606, 607 (1983) (order requiring return of property to marital home pending disposition of equitable distribution and divorce actions not immediately appealable); Stephenson v. Stephenson, 55 N.C. App. 250, 251, 285 S.E.2d 281, 281-82 (1981) (monetarypendente lite orders not immediately appealable).\nIn Embler, this Court held the trial court\u2019s equitable distribution order \u201cthat explicitly left open the related issue of alimony\u201d was interlocutory and neither affected a substantial right nor presented the potential for inconsistent verdicts. 143 N.C. App. at 167, 545 S.E.2d at 262-63. Although the Order and the Judgment herein do not \u201cexplicitly\u201d leave open the issue of alimony, we perceive no distinction between the circumstances of the case sub judice and those in Embler.\nIn seeking immediate appeal, the parties maintain they will avoid retrial of \u201cthe issue of alimony in the event that this Court reverses and/or vacates the equitable distribution orders\u201d following a timely-filed appeal. As in Embler, however, there appears to be no danger of inconsistent verdicts were we to remand this case to the trial court. Further, this Court has consistently stated that \u201c \u2018avoidance of a rehearing or trial is not a \u201csubstantial right\u201d entitling a party to an immediate appeal.\u2019 \u201d Banner v. Hatcher, 124 N.C. App. 439, 442, 477 S.E.2d 249, 251 (1996) (quoting Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)). Regarding the parties\u2019 contention that \u201cthe interest of judicial economy\u201d compels immediate review so as to avoid any delay caused by the potential for retrial of the alimony action, we note the admonition of this Court approximately twenty-six years ago that\nStephenson, 55 N.C. App. at 251, 285 S.E.2d at 282.\nIn short, because the parties have failed to distinguish Embler or to meet their burden of identifying a substantial right which would be affected were we to decline review of the instant appeal, see Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (\u201cmoving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party\u201d), the appeal must be dismissed as interlocutory. Whatever might be the personal inclination of one or more members of this panel, we are bound by Embler and the other authorities cited herein. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d). The recourse of the parties and others similarly situated is to our Supreme Court or to the General Assembly.\nAppeal Dismissed.\nJudges WYNN and STEELMAN concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Michelle D. Reingold for plaintiff'.", "Bell, Davis & Pitt, P.A., by Robin J. Stinson, and Gatto Law Offices, by Joseph J. Gatto, for defendant." ], "corrections": "", "head_matter": "STEVE McINTYRE, Plaintiff v. VICKI McINTYRE, Defendant\nNo. COA05-344\n(Filed 17 January 2006)\nAppeal and Error\u2014 appealability \u2014 interlocutory order \u2014 failure to show substantial right\nAlthough both parties appeal various trial court rulings which resolve the issue of equitable distribution, the merits of the parties\u2019 contentions cannot be reached because the parties appealed an interlocutory order when the related issue of alimony remained. Although the parties maintain they will avoid retrial of the issue of alimony in the event the Court of Appeals reverses and/or vacates the equitable distribution orders, avoidance of a rehearing or trial is not a substantial right entitling a party to an immediate appeal.\nAppeal by plaintiff from order entered 27 June 2000 by Judge Victoria L. Roemer in Forsyth County District Court. Appeal by plaintiff and defendant from order entered 31 July 2001 and judgment entered 3 December 2004 by Judge Chester C. Davis in Forsyth County District Court. Heard in the Court of Appeals 15 November 2005.\nMichelle D. Reingold for plaintiff'.\nBell, Davis & Pitt, P.A., by Robin J. Stinson, and Gatto Law Offices, by Joseph J. Gatto, for defendant." }, "file_name": "0558-01", "first_page_order": 592, "last_page_order": 598 }