{ "id": 4166550, "name": "MARY B. WEBB, Plaintiff v. GEORGE TRAVERS WEBB, III, Defendant", "name_abbreviation": "Webb v. Webb", "decision_date": "2009-05-05", "docket_number": "No. COA08-1150", "first_page": "770", "last_page": "774", "citations": [ { "type": "official", "cite": "196 N.C. App. 770" } ], "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": "664 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641609 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "414", "parenthetical": "requiring an. appellant as the \"only course of action\" to preserve appeal from an underlying order immediately divesting trial court of jurisdiction, even if the trial court reserves the issue of the amount of attorney's fees for a later hearing" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0411-01" ] }, { "cite": "624 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634918 ], "year": 2006, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0620-01" ] }, { "cite": "625 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634955 ], "year": 2006, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0145-01" ] }, { "cite": "651 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639561 ], "year": 2007, "pin_cites": [ { "page": "263", "parenthetical": "quoting Akers v. City of Mt. Airy, 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006)" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0261-01" ] }, { "cite": "67 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "671" } ], "opinion_index": 0 }, { "cite": "234 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624256 ], "year": 1951, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0528-01" ] }, { "cite": "486 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "245-46", "parenthetical": "quoting Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)" } ], "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": "quoting Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0705-01" ] }, { "cite": "191 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159437 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/191/0807-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "254", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "380", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "399 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "138-39", "parenthetical": "quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527777 ], "year": 1991, "pin_cites": [ { "page": "395", "parenthetical": "quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0394-01" ] }, { "cite": "360 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790975 ], "year": 2006, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0280-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "261", "parenthetical": "quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "year": 2001, "pin_cites": [ { "page": "164-65", "parenthetical": "quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "578", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "161", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "436 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "155" }, { "page": "155", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521985 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0446-01" ] }, { "cite": "581 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "465", "parenthetical": "where \"court's order did not resolve the parties' respective claims for equitable distribution and for attorney's fees\" or rule on claim for alimony, this Court concludes \"the order from which defendant appeals was interlocutory.\"" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188416 ], "year": 2003, "pin_cites": [ { "page": "534", "parenthetical": "where \"court's order did not resolve the parties' respective claims for equitable distribution and for attorney's fees\" or rule on claim for alimony, this Court concludes \"the order from which defendant appeals was interlocutory.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0533-01" ] }, { "cite": "592 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "where Plaintiff sought summary judgment and attorney's fees, trial court's order granting partial summary judgment and reserving ruling on Plaintiff's pending claim for attorney's fees was interlocutory" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915177 ], "year": 2004, "pin_cites": [ { "parenthetical": "where Plaintiff sought summary judgment and attorney's fees, trial court's order granting partial summary judgment and reserving ruling on Plaintiff's pending claim for attorney's fees was interlocutory" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0069-01" ] }, { "cite": "175 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353442 ], "year": 2006, "pin_cites": [ { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0777-01" ] }, { "cite": "186 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157009 ], "year": 2007, "pin_cites": [ { "page": "392", "parenthetical": "quoting Akers v. City of Mt. Airy, 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0390-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "381", "parenthetical": "citations omitted" }, { "page": "381", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "362", "parenthetical": "citations omitted" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 613, "char_count": 11621, "ocr_confidence": 0.737, "pagerank": { "raw": 1.1319768591579924e-07, "percentile": 0.57606370101114 }, "sha256": "2dcf5da1026ae3833ad2307d5cb0460730a809ea0ae558238283ae30feb08ff7", "simhash": "1:ab6b4666365f0676", "word_count": 1873 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "MARY B. WEBB, Plaintiff v. GEORGE TRAVERS WEBB, III, Defendant" ], "opinions": [ { "text": "BEASLEY, Judge.\nDefendant (George Travers Webb, III) appeals from an order awarding Plaintiff (Mary B. Webb) permanent alimony. We dismiss this appeal as interlocutory.\nThe parties are residents of Alamance County, North Carolina. They were married in 1982 and separated on 19 October 2002. Three children were born of the marriage; two daughters born in 1985 and 1991, and a son bom in 1987. On 24 October 2002 Plaintiff filed a complaint against Defendant seeking child custody and support, post-separation support, permanent alimony, equitable distribution, interim distribution, a temporary injunction, and attorney\u2019s fees. Defendant answered in December 2002, seeking equitable distribution and dismissal of Plaintiff\u2019s claims for post-separation support and alimony. In March 2003 the trial court awarded Plaintiff $4000 a month in post-separation support and $2174 a month in child support, and in May 2003 the trial court entered an order approving the parties\u2019 parenting agreement. In October 2006 a consent order was entered on equitable distribution. .\nIn May 2006 Defendant filed a motion for reduction of child support. In July 2006 Plaintiff filed a motion seeking to have Defendant held in contempt of court for failing to pay child support or maintain health insurance, and asking for attorney\u2019s fees. Defendant filed a motion alleging overpayment of post-separation support and child support. A trial was conducted over sixteen days between 6 November 2006 and 7 February 2007 on alimony, Plaintiff\u2019s motion for contempt, and Defendant\u2019s motion for modification of child support.\nOn 22 January 2008 the trial court entered an order concluding that Plaintiff was a dependent spouse and Defendant a supporting spouse, and that Plaintiff was entitled to alimony and to an award of counsel fees. The trial court awarded Plaintiff permanent alimony of $5000 a month and ordered that, if Defendant received bonuses or other compensation from his employer, his alimony payments would be increased. The trial court also found that Plaintiff was \u201can interested party without sufficient resources to fully defray the cost of this action, including attorney\u2019s fees, and is entitled to an award of counsel fees.\u201d Regarding the amount of counsel fees, the trial court ordered that:\n[c]ounsel for each party shall submit affidavits regarding the time spent in connection with the prosecution or defense of this matter on or before February 15, 2008. The Court will determine a partial allowance of attorney\u2019s fees to be paid by the Defendant to the Plaintiff.\nFrom this order Defendant has appealed.\nInterlocutory Appeal\nAn order \u201cis either interlocutory or the final determination of the rights of the parties.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a) (2007). \u201cAn 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.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citations omitted). \u201cAlthough the parties have not raised this issue, \u2018whether an appeal is interlocutory presents a jurisdictional issue, [and] this Court has an obligation to address the issue sua sponte.\u2019 \u201d Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (quoting Akers v. City of Mt. Airy, 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006)).\nIn the instant case, Plaintiffs claim for attorney\u2019s fees was pending at the time the trial court entered its order for alimony. The trial court concluded that Plaintiff was entitled to an award of partial attorney\u2019s fees and directed the parties to submit affidavits to assist the court in determining the amount of attorney\u2019s fees. Thus, the order for alimony did \u201cnot dispose of the case, but le[ft] it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey, 231 N.C. at 362, 57 S.E.2d at 381 (citations omitted). As such it was interlocutory. See, e.g., Watts v. Slough, 163 N.C. App. 69, 592 S.E.2d 274 (2004) (where Plaintiff sought summary judgment and attorney\u2019s fees, trial court\u2019s order granting partial summary judgment and reserving ruling on Plaintiff\u2019s pending claim for attorney\u2019s fees was interlocutory); Evans v. Evans, 158 N.C. App. 533, 534, 581 S.E.2d 464, 465 (2003) (where \u201ccourt\u2019s order did not resolve the parties\u2019 respective claims for equitable distribution and for attorney\u2019s fees\u201d or rule on claim for alimony, this Court concludes \u201cthe order from which defendant appeals was interlocutory.\u201d); Beau Rivage Plantation v. Melex USA, 112 N.C. App. 446, 436 S.E.2d 152 (1993). In Beau Rivage, the defendant filed a counterclaim and claim for attorney\u2019s fees. The trial court entered summary judgment for the defendant and awarded defendant attorney\u2019s fees. The order stated that the trial court \u201creserves ruling on the amount of such fees until supporting affidavits are filed and a further hearing is conducted].]\u201d Id. at 452, 436 S.E.2d at 155. On appeal, this Court held that:\nthe threshold and dispositive question is whether the trial court\u2019s order of 27 July had the requisite finality to make it subject to immediate appeal. We are of the opinion that it did not. ... It follows, therefore, that plaintiff could not oust the trial court\u2019s jurisdiction to settle and determine the entire controversy by filing its notice of appeal[.]\nId. at 452-53, 436 S.E.2d at 155 (internal quotations omitted). We conclude that, inasmuch as it did not resolve Plaintiff\u2019s pending claim for attorney\u2019s fees, the trial court\u2019s order in this case was interlocutory.\n\u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (citations omitted).\n[A]n interlocutory order is immediately appealable only under two circumstances. First, \u2018if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b), an immediate appeal will lie.\u2019 . . . The other situation in which an immediate appeal may be taken from an interlocutory order is when the challenged order affects a substantial right of the appellant that would be lost without immediate review.\nEmbler v. Embler, 143 N.C. App. 162, 164-65, 545 S.E.2d 259, 261 (2001) (quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)) (citations omitted). In the instant case, \u201c[s]ince the trial court did not certify its decision, we must decide whether [Defendant] has a substantial right that would be lost absent immediate review.\u201d McCutchen v. McCutchen, 360 N.C. 280, 282, 624 S.E.2d 620, 623 (2006).\n\u201cThe appealability of interlocutory orders pursuant to the substantial right exception is determined by a two-step test. \u2018[T]he right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment.\u2019 \u201d Miller v. Swann Plantation Development Co., 101 N.C. App. 394, 395, 399 S.E.2d 137, 138-39 (1991) (quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)). Moreover, \u201cthe appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.\u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) (citation omitted). This requirement is codified in N.C. R. App. P 28(b)(4), which states in pertinent part that an appellant\u2019s brief must include:\n[a] statement of 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 argument to support appellate review on the ground that the challenged order affects a substantial right.\nDefendant does not identify any substantial right that might be lost without immediate appeal, but simply asserts that:\n[t]his appeal lies from a final decision . . . pursuant to N.C. Gen. Stat. \u00a7 7A-27(c). See also, In re Harts,-N.C. App.-, -, 664 S.E.2d 411, 414 (2008) (requiring an. appellant as the \u201conly course of action\u201d to preserve appeal from an underlying order immediately divesting trial court of jurisdiction, even if the trial court reserves the issue of the amount of attorney\u2019s fees for a later hearing).\nDefendant apparently contends that he appeals from a \u201cfinal decision\u201d notwithstanding the pending claim for attorney\u2019s fees. His reliance on In re Will of Harts, 191 N.C. App. 807, 664 S.E.2d 411 (2008), in support of this position, is misplaced. In Harts, the trial court entered judgment for the propounders in a caveat case, in an order that \u201cdid not address the issues of costs and attorney\u2019s fees at that time.\u201d Id. at 808, 664 S.E.2d at 413. The opinion does not suggest that an attorney\u2019s fees motion was then pending. The caveator delayed giving notice of appeal until after the trial court ruled on a motion for attorney\u2019s fees, which presumably was made post-trial. By then the time had expired for caveator to appeal from the judgment in favor of the propounders. Harts held that, following entry of a final judgment, an appellant must file notice of appeal within the time limits of N.C.R. App. R 3. However, Harts did not hold that an interlocutory order, entered before the trial court rules on a pending motion for attorney\u2019s fees, is immediately appealable. Nor does Harts suggest that a pending motion for attorney\u2019s fees does not count in determining whether an order is interlocutory.\n\u201c \u2018Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.\u2019 In keeping with the policy discouraging fragmentary appeals, we conclude that the present interim order does not affect a substantial right and that [Defendant\u2019s] rights will be adequately protected by an appeal timely taken from the final... judgment.\u201d Hunter v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d 244, 245-46 (1997) (quoting Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)).\nAppeal dismissed.\nJudges McGEE and GEER concur.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Walker & Bullard, P.A., by James F. Walker and Daniel S. Bullard, for Plaintiff-Appellee.", "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Defendant-Appellant." ], "corrections": "", "head_matter": "MARY B. WEBB, Plaintiff v. GEORGE TRAVERS WEBB, III, Defendant\nNo. COA08-1150\n(Filed 5 May 2009)\nAppeal and Error\u2014 appealability \u2014 permanent alimony \u2014 interlocutory order \u2014 claim for attorney fees pending\nDefendant\u2019s appeal from an order awarding plaintiff permanent alimony is dismissed as an appeal from an interlocutory order because: (1) plaintiff\u2019s claim for attorney fees was pending at the time the trial court entered its order for alimony; (2) the order for alimony did not dispose of the case, but left it for further action by the trial court in order to settle and determine the entire controversy; and (3) defendant failed to identify a substantial right that might be lost without immediate appeal, and defendant\u2019s rights will be adequately protected by an appeal timely taken from the final judgment.\nAppeal by Defendant from judgment entered 22 January 2008 by Judge James K. Roberson in Alamance County District Court. Heard in the Court of Appeals 10 March 2009.\nWalker & Bullard, P.A., by James F. Walker and Daniel S. Bullard, for Plaintiff-Appellee.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Defendant-Appellant." }, "file_name": "0770-01", "first_page_order": 798, "last_page_order": 802 }