In 2013, a new statute took effect allowing for immediate appeal from certain interlocutory orders entered in family law cases. N.C. Gen. Stat. § 50-19.1. In that context, it is not uncommon for a lawsuit to contain claims for divorce, child custody, child support, alimony, and equitable distribution. Sometimes, those claims can, and are, decided separately and at different times. The statute allows for a permissive immediate appeal whenever one of those “cases within a case” is finally decided. (In essence, it allows for a Rule 54(b) appeal without the hassle of obtaining a Rule 54(b) certification.)
Of course, our appellate courts generally discourage piecemeal appeals because of the potential for a waste of judicial and party resources. See, e.g., Veazey v. City of Durham, 231 N.C. 357 (1950). I wondered at the time of its passing whether this new statute would “open the floodgates” to a swath of fragmentary family law appeals. Friend of the blog Jonathan McGirt assured me it would not, as clients would not choose to spend the money for an extra appeal unless the issue was of paramount importance; they would just wait and appeal all the issues at once after entry of a final judgment.
Turns out Jonathan was right. Performing a survey of Westlaw citations to N.C. Gen. Stat. § 50-19.1, Jonathan found only six appeals that made it to the briefing stage for which the new statute was cited as the principal basis for appellate jurisdiction since August 23, 2013 (effective date of the statute):
- Morgan v. Morgan 14-471
- Comstock v. Comstock 14-731
- Jay v. Jay 15-156
- Faircloth v. Faircloth 15-179
- Miller v. Miller 15-309
- Lueallen v. Lueallen 15-890
To be sure, there may be others that were not picked up by the search, never made it to the briefing stage, or where the new statute provided a secondary or overlapping basis for appellate jurisdiction. The important thing is not the exact number, but the order of magnitude.
Let me put it in perspective. Nearly 1,500 new appeals are filed in the Court of Appeals every year. If about 3 of those are due to the new statute, the expansion created only a 0.2% uptick in the Court of Appeals’ docket.
The floodgates might be open, but we appear to be staying dry.