Plaintiff-wife and defendant-husband separated in April 2003. In December 2003 the trial court entered a consent order regarding custody of their two daughters. The order awarded joint, legal custody to the parties with primary legal custody with defendant-husband receiving primary physical custody and the defendant-wife, secondary custody. A second custody order was entered in February 2005 modifying the wife’s visitation schedule. Subsequently, the husband filed two motions to hold the wife in contempt for violation of the custody and visitation orders. In 2009, prior to entry of an order holding the wife in contempt pursuant to one of the husband’s contempt motions, the wife filed a motion to modify child support. In August 2010, following suspension of wife’s visitation and, while wife’s motion to modify child support was still pending, the wife moved to modify custody alleging a substantial change of circumstances. The trial court denied the wife’s motion to modify custody and, in its ruling, reserved the issues of modification of child support, contempt and counsel fees for future hearing. On appeal, the wife argued that the trial court erred by denying her motion to modify custody. The Court of Appeals, while noting North Carolina law regarding the finality of an order is not “a model of clarity,” held that where the child custody order was not certified under Rule 54(b) and does not affect a substantial right the appeal is interlocutory citing Duncan v. Duncan, ___ N. C. App___, 732 S. E. 2d, 390 (2012).The Court of Appeals said that reservation of the issue of attorney fees by the trial court precludes the finality of a child custody order. Thus, the wife’s appeal was dismissed.
Carole Gailor is the founding and managing member of Gailor, Hunt, Jenkins, Davis & Taylor, PLLC in Raleigh, North Carolina. She is a Board Certified Family Law Specialist, Fellow in the American Academy of Matrimonial Lawyers and President of the North Carolina Chapter. Carole has been selected for Best Lawyers in America for multiple years, and one of the Top Fifty Women Lawyers in North Carolina by Super Lawyers. Her website: http://www.gailorwallis.com/cgailor.htm