Opinion
No. COA12–146.
2012-07-17
Christine ZANKEY, Plaintiff, v. Eric J. RISELVATO, Defendant.
Eric J. Riselvato, pro se, defendant appellant. No brief for plaintiff.
Appeal by defendant from order entered 11 August 2011 by Judge Anna E. Worley in Wake County District Court. Heard in the Court of Appeals 7 June 2012. Eric J. Riselvato, pro se, defendant appellant. No brief for plaintiff.
McCULLOUGH, Judge.
Eric J. Riselvato (“defendant”) appeals from the trial court's entry of a preliminary injunction prohibiting defendant's movement of his and Christine Zankey's (“plaintiff” and collectively the “parties”) minor child, A.R., from her current school district in Wake County, North Carolina, to a different district in Orange County, North Carolina. Due to the interlocutory nature of defendant's appeal, we dismiss defendant's appeal.
I. Background
The parties were married in 1991 and are the biological parents of A.R., who was born on 28 January 1998. The parties had two other children together. Defendant left the marital home in March of 2005, at which point he obtained primary physical custody of the children. However, both parties retained joint legal custody of the children. The parties subsequently divorced in May of 2006. Plaintiff remarried in 2008 and defendant remarried in 2009. Plaintiff has an additional biological child, while defendant has three stepchildren.
On 6 January 2010, the trial court entered an Order for Child Custody granting joint legal custody to the parties, with defendant receiving primary physical custody and plaintiff receiving secondary physical custody of the three minor children. The trial court entered an Order Modifying Child Custody on 3 December 2010, when minor child, R.R., chose to reside with plaintiff. This order did not change custody for A.R. or the parties' other child, J.R., who was no longer a minor at that point.
Both parties are currently residents of Wake County. On 6 June 2011, defendant notified plaintiff of his intention to move from Wake Forest, North Carolina, to Chapel Hill, North Carolina, which would require the transfer of A.R. from Heritage Middle School in Wake County to Smith Middle School in Orange County. Heritage Middle School is on a year-round school schedule, which requires a different visitation schedule than that of the other children. The following day, plaintiff informed defendant that she did not consent to the transfer of A.R. to a new school. Consequently, plaintiff filed a Motion for Temporary Restraining Order (“TRO”) and Preliminary Injunction on 10 June 2011, seeking to prevent defendant from removing A.R. from Wake County and her current school. That same day, the trial court entered a TRO prohibiting defendant from relocating A.R. and withdrawing her from Heritage Middle School.
The trial court held a hearing on 15 June 2011 regarding the preliminary injunction and ultimately entered an order on 11 August 2011, nunc pro tunc 15 June 2011, prohibiting the changing of A.R.'s school until a custody hearing could be held. The preliminary injunction order did not specify a specific date for the forthcoming custody hearing. Additionally, defendant filed a Motion to Modify Child Custody or Visitation on 22 June 2011, expressing his desire to move to Chapel Hill with A.R. to live with his wife and three stepsons. Less than a month later, on 11 August 2011, the trial court held the custody hearing to address defendant's Motion to Modify Custody or Visitation.
Nonetheless, defendant filed a 6 September 2011 notice of appeal from the preliminary injunction order. Defendant also filed a Motion to Stay the preliminary injunction, pending his appeal. Ultimately, the trial court entered an Order Modifying Child Custody on 23 January 2012 based on the 11 August 2011 hearing. The trial court found that there had “been a substantial change in circumstances since the entry of the previous order affecting the welfare of the minor children and it [was] in the children's best interests that the order be modified.” Furthermore, the trial court ordered that “[i]n the event the Defendant moves from [Wake County], the Plaintiff shall be designated the primary physical custodian of [A.R .] for the purpose of school enrollment.”
II. Analysis
Defendant attempts to raise two issues on appeal; however, we must first address the issue of the appealability of the trial court's preliminary injunction order. Based on the following, defendant's appeal is interlocutory and thus dismissed.
“ ‘An interlocutory order is one that does not determine the issues, but directs some further proceeding preliminary to a final decree.’ “ Brewer v. Brewer, 139 N.C.App. 222, 227, 533 S.E.2d 541, 546 (2000) (quoting Dunlap v. Dunlap, 81 N.C.App. 675, 676, 344 S.E.2d 806, 807 (1986)).
The purpose of a preliminary injunction is ordinarily to preserve the status quo pending trial on the merits. Its issuance is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities. Its impact is temporary and lasts no longer than the pendency of the action. Its decree bears no precedent to guide the final determination of the rights of the parties. In form, purpose, and effect, it is purely interlocutory. Thus, the threshold question presented by a purported appeal from an order granting a preliminary injunction is whether the appellant has been deprived of any substantial right which might be lost should the order escape appellate review before final judgment. If no such right is endangered, the appeal cannot be maintained.
State v. School, 299 N.C. 351, 357–58, 261 S.E.2d 908, 913,appeal dismissed,449 U.S. 807, 66 L.Ed.2d 11 (1980); see alsoN.C. Gen.Stat. § 1–277 (2011).
In deciding what constitutes a substantial right, “[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.” Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E .2d 338, 343 (1978). Examples of when a substantial right is affected include cases where there is a possibility of a second trial on the same issues, Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E .2d 593, 595 (1982), and where there is a possibility of inconsistent verdicts.
Patterson v. DAC Corp., 66 N.C.App. 110, 112–13, 310 S.E.2d 783, 785 (1984).
In the case at bar, defendant appealed from the trial court's 11 August 2011 preliminary injunction order. On its face, this order is interlocutory. See School, 299 N.C. at 357–58, 261 S.E.2d at 913. Accordingly, we must determine whether defendant is deprived of a substantial right by the allowance of the preliminary injunction order.
An allowance of the order would not lead to the possibility of a second trial on the same issues or inconsistent verdicts. See Patterson, 66 N.C.App. at 112–13, 310 S.E.2d at 785. Moreover, the injunction only prohibited defendant from relocating A.R. pending the entry of a modified custody order addressing whether a relocation of A.R. would amount to a substantial change in circumstances and if it would be in her best interests. Hence, defendant has not been deprived of the commonly considered substantial rights.
Rather, the only potential issue in this situation is if the preliminary injunction is considered akin to a temporary custody order due to its dealing with the relocation of A.R. “Normally, ‘a temporary child custody order is interlocutory and does not affect any substantial right ... which cannot be protected by timely appeal from the trial court's ultimate disposition ... on the merits.’ “ Brewer, 139 N.C.App. at 227, 533 S.E.2d at 546 (quoting Berkman v. Berkman, 106 N.C.App. 701, 702, 417 S.E.2d 831, 832 (1992)). This Court has held that “an appeal from a temporary custody order is premature only if the trial court: (1) stated a clear and specific reconvening time in the order; and (2) the time interval between the two hearings was reasonably brief.” Id. at 228,533 S.E.2d at 546.
Here, the trial court did not specify a clear reconvening time in the preliminary injunction order, but it is implicit from the order and accompanying testimony at the hearing that a custody hearing would be imminent. The trial court made it clear that the hearing was for an injunction and that a custody hearing would be necessary. It held such hearing on 11 August 2011, the same day it entered the preliminary injunction order nunc pro tunc, and the court subsequently filed an accompanying Order Modifying Child Custody on 23 January 2012 after having several other hearings in the meantime. In Brewer, the time between hearings had the potential to be over a year, while, in the instant case, the custody hearing was held the same day as the filing of the preliminary injunction. See id. “Because the order issuing the injunction was interlocutory and no substantial right of [defendant] was affected by the denial of immediate appellate review, the trial court was not divested of jurisdiction and could therefore properly” enter the 23 January 2012 Order Modifying Child Custody. Onslow County v. Moore, 129 N.C.App. 376, 387–88, 499 S.E.2d 780, 788 (1998); see alsoN.C. Gen.Stat. § 1–294 (2011). As a result, defendant's appeal is interlocutory and must be dismissed as such.
Dismissed. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).