{
  "id": 12170303,
  "name": "JACQUELINE RANDALL DORN v. ROGER WAYNE DORN",
  "name_abbreviation": "Dorn v. Dorn",
  "decision_date": "1981-06-02",
  "docket_number": "No. 8026DC1115",
  "first_page": "370",
  "last_page": "372",
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      "cite": "40 N.C. App. 227",
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      "reporter": "N.C. App.",
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      "year": 1980,
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    {
      "cite": "66 L.Ed. 2d 11",
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      "reporter": "L. Ed. 2d",
      "year": 1980,
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    {
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      "year": 1980,
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    {
      "cite": "299 N.C. 351",
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  "last_updated": "2023-07-14T23:00:28.379499+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Martin (Harry C.) and WELLS concur."
    ],
    "parties": [
      "JACQUELINE RANDALL DORN v. ROGER WAYNE DORN"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThat portion of Judge Black\u2019s order dated 28 August 1980 denying defendant\u2019s Rule 12(b)(6) and Rule 56(b) motions is clearly unappealable. State v. Fayetteville Street Christian School, 299 N.C. 351, 261 S.E. 2d 908, appeal dismissed, --- U.S. ---, 66 L.Ed. 2d 11, 101 S.Ct. 55 (1980); O\u2019Neill v. Southern National Bank, 40 N.C. App. 227, 252 S.E. 2d 231 (1979); Hill v. Smith, 38 N.C. App. 625, 248 S.E. 2d 455 (1978); Parker Oil Co., Inc. v. Smith, 34 N.C. App. 324, 237 S.E. 2d 882 (1977). While an appeal from the denial of a Rule 60(b) motion and the allowance of a motion to strike certain defenses and counterclaims might be appealable under some circumstances, that portion of Judge Black\u2019s 28 August 1980 order denying defendant\u2019s Rule 60(b) motion and allowing plaintiff\u2019s motions to strike is clearly not appealable under the circumstances of the present case.\nDefendant\u2019s \u201cmotion to dismiss,\u201d which was filed after the matter had been scheduled for hearing on plaintiffs application for alimony pendente lite, alleged that plaintiff and defendant had entered into a \u201cseparation agreement\u201d and that such agreement was a bar to plaintiff\u2019s claim for alimony. Although not denominated as such, the motion was clearly one for summary judgment pursuant to Rule 56. When the matter came on for hearing on plaintiff\u2019s application for alimony pendente lite, Judge Brown inexplicably considered and ruled on defendant\u2019s \u201cmotion to dismiss.\u201d He not only denied defendant\u2019s motion, but he gratuitously declared the \u201cseparation agreement\u201d not to be \u201cvalid, legal, or binding.\u201d This untimely and gratuitous ruling on defendant\u2019s \u201cmotion to dismiss\u201d precipitated the fatuous proceedings which followed, this premature appeal, and the resulting unreasonable delay in the disposition of a relatively simple matter. Therefore, since Judge Black\u2019s 28 August 1980 order was predicated on Judge Brown\u2019s denial of defendant\u2019s motion for summary judgment and his gratuitous declaration that the separation agreement was invalid, the appeal is premature and will be dismissed.\nDismissed.\nJudges Martin (Harry C.) and WELLS concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "James, McElroy and Diehl, by Allen J. Peterson, for the plaintiff appellee.",
      "Kermit D. McGinnis, for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "JACQUELINE RANDALL DORN v. ROGER WAYNE DORN\nNo. 8026DC1115\n(Filed 2 June 1981)\nAppeal and Error \u00a7 6.2\u2014 premature appeal\nThat portion of the trial court\u2019s order denying defendant\u2019s Rule 12(b)(6) motion to dismiss plaintiffs complaint and Rule 56(b) motion for summary judgment was clearly unappealable; moreover, the trial court\u2019s denial of defendant\u2019s motion for summary j'udgment and declaration that a separation agreement between the parties was invalid was gratuitous, and defendant\u2019s appeal therefrom was premature.\nAppeal by defendant from Black, Judge. Order entered 28 August 1980 in District Court, Mecklenburg County. Heard in the Court of Appeals 7 May 1981.\nThis is a civil action wherein plaintiff, wife, seeks to recover from defendant, husband, permanent alimony, alimony pendente lite, and counsel fees. The record contains the following: (1) plaintiff\u2019s complaint filed 1 May 1980; (2) a notice dated 1 May 1980 stating that plaintiff would seek an \u201caward of alimony, pendente lite and permanent, counsel fees and related relief\u201d at a hearing in the district court on 27 May 1980; (3) a \u201cmotion to dismiss and supporting affidavit\u201d offered by defendant and dated 29 May 1980; (4) an order by Judge Brown dated 6 June 1980 denying defendant\u2019s \u201cmotion to dismiss\u201d and declaring that a \u201cseparation agreement\u201d submitted by defendant in support of his motion was \u201cnot a valid, legal, or binding Separation Agreement;\u201d (5) an \u201canswer to complaint and defenses\u201d dated 10 June 1980; (6) a motion by plaintiff dated 19 June 1980 seeking an order striking the \u201cSecond, Third and Fourth Defenses of the Defendant\u2019s Answer and Paragraph 29 thereof\u201d and, in the alternative, for judgment on the pleadings or summary judgment on the issue of \u201cthe validity of the Separation Agreement;\u201d (7) an order by Judge Brown dated 30 June 1980 continuing the case and rescheduling the hearing on plaintiff\u2019s claim for alimony pendente lite to 16 July 1980; (8) an \u201camendment to answer adding counterclaim\u201d dated 3 July 1980; (9) a motion and reply by plaintiff dated 11 July 1980 seeking to strike the counterclaims alleged in defendant\u2019s \u201camendment to answer\u201d and, in the alternative, to dismiss the counterclaims for failure to state a claim, and, in the alternative, that defendant \u201chave and recover nothing of the Plaintiff pursuant to his Counterclaims;\u201d (10) a motion filed by defendant on 16 July 1980 seeking relief from Judge Brown\u2019s 6 June 1980 order pursuant to \u201cRule 60(d) [sic] of the Rules of Civil Procedure,\u201d and also seeking dismissal of plaintiff\u2019s complaint pursuant to G.S. \u00a7 1A-1, Rule 12(b)(6) and summary judgment in favor of defendant pursuant to G.S. \u00a7 1A-1, Rule 56(b); (11) an order by Judge Black filed 28 August 1980 denying defendant\u2019s 16 July 1980 motion and allowing plaintiff\u2019s 19 June 1980 and 11 July 1980 motions; and (12) notice of defendant\u2019s appeal from Judge Black\u2019s 28 August 1980 order.\nJames, McElroy and Diehl, by Allen J. Peterson, for the plaintiff appellee.\nKermit D. McGinnis, for the defendant appellant."
  },
  "file_name": "0370-01",
  "first_page_order": 398,
  "last_page_order": 400
}