Can You File an Appeal Before a Final Order in North Carolina?

North Carolina family law cases often decide on some of the most important elements of a person’s life. From property and assets in a divorce to child custody arrangements, the outcome of these cases can significantly impact everyone involved. If you feel that the court’s decision is incorrect or unjust, you may be able to file an appeal.

The appeals process is generally reserved for after a case is closed, when a final order has been entered. For example, in juvenile matters, such as custody and visitation cases, final orders can be appealed within ten days. However, if the court has entered an interlocutory order, you can also appeal in limited circumstances.

What is an Interlocutory Order?

An interlocutory order is an order that addresses only some of the issues and claims of the case. After the entry of an interlocutory order, the case is still ongoing. These orders are common in family law matters as certain parts of divorce, custody, and support are often addressed pendente lite, meaning pending the litigation. In divorce cases, issues like child custody, visitation, spousal support, and who will stay in the marital home often need to be decided quickly. Interlocutory orders can provide a temporary ruling on the most important or time-sensitive issues while the case remains ongoing.

These orders are not final; in most cases, parties in a legal matter must wait for a final judgment before they can appeal. However, in the following circumstances, an interlocutory order can be immediately appealed:

• If the order is considered final regarding parts of the issues of the case
• If the parties agree or the court certifies that no just reason exists to postpone the appeal
• If waiting to appeal would cause the person appealing to lose a substantial right

There is a two-part test to determine if an interlocutory order can be appealed based on its effect on a substantial right. The court will first decide if the order impacts a substantial right, and then it will determine whether that right may be prejudiced, inadequately preserved, or lost if an immediate appeal is not made.

Podrebarac v. Podrebarac

In the case of Podrebarac v. Podrebarac, Husband appealed the trial court’s orders that denied his various motions, including the following:

Husband filed a complaint for child custody and equitable distribution on December 18, 2008, and Wife filed a counterclaim for various relief, including custody, child support, equitable distribution, and alimony. They attended mediation, and on April 29, 2009, they signed a separation agreement. On September 26, 2011, Husband filed a motion to enforce the agreement. Shortly after, Wife filed a motion to dismiss Husband’s motion. The trial court decided that the separation agreement was invalid and granted Wife’s motion to dismiss.

Then, Husband filed a motion for a new trial; the trial court granted Wife’s counterclaim for post-separation support and denied Husband’s motion for a new trial. Husband appealed.

The Court of Appeals determined that Husband’s appeal was interlocutory, but because he claimed that dismissing the appeal would deprive him of a substantial right, the appeal was granted discretionary review. Ultimately, the appeals court determined that Husband’s argument lacked merit and that no substantial rights were in jeopardy; the appeal was dismissed as interlocutory.

The Podrebarac case is just one example of how challenging it is to file a successful interlocutory appeal. For help considering if an appeal is appropriate in your case, contact an experienced Greensboro family law attorney.