Set Aside Separation Agreement Appeal Dismissed as Interlocutory

The North Carolina Court of Appeals dismissed an appeal as interlocutory. In this case, the Wife filed an action to set aside a Separation Agreement and establish the parties’ date of separation. The Wife also raised claims for equitable distribution, post separation support and alimony. At hearing the trial Court set aside the Separation Agreement and Property Settlement.

The Husband moved pursuant to North Carolina Rules of Civil Procedure Rule 54(b) that the trial Court certify the Order as immediately appealable. The trial Court also noted in its Order that the Order affected a substantial right of Husband. It seems that the trial Court tried to set the matter up for immediate appeal by all means available to it.

The North Carolina Court of Appeals dismissed the appeal as interlocutory by finding that the matter did not satisfy the second prong of North Carolina Rules of Civil Procedure Rule 54(b), which requires that the ruling be final with respect to one, but not all, of the matters pending in the case. The Court found it compelling that none of the other pending claims in the case could be determined without first determining the request to set aside the Separation Agreement.

The Court also noted that the decision did not affect a substantial right of Husband (despite the fact that the trial Court explicitly found that it did). Apparently the Husband took it for granted that the trial Court found that the matter affected his substantial right and did not argue this point to the Court of Appeals. The trial Court’s finding to this effect was not binding on the Court of Appeals.

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