KAPLAN v. KAPLAN (2019)

Defendant-father appeals from an order entitled “Order on Emergency Motion for Expedited Hearing and Contempt[,]” (original in all caps), requiring him to pay $50,000.00 “into escrow with the Union County Superior Court Clerk” no later than 30 June 2018. Despite its title, the order on appeal does not address contempt. The order on appeal has no findings of fact, no conclusions of law, and no apparent legal authority to support any decree, but it is also interlocutory and Father has failed to demonstrate that he has a substantial right which will be impaired without immediate review. We therefore dismiss Father's appeal.

I. Background

The order on appeal is one of many entered in this bitterly contentious litigation between the parties, which began in 2015 when plaintiff-mother filed a complaint for child custody and support, post-separation support, alimony, equitable distribution, and attorney fees. In a prior appeal of a contempt order, this Court summarized the factual and procedural background:

The parties were married on 20 April 1996 and separated on 23 November 2014. One child was born of the marriage. On 5 February 2015, Ms. Kaplan filed a complaint for child custody, child support, post-separation support, alimony, equitable distribution, and attorneys’ fees.

On 12 August 2015, the trial court entered an order for child support (the “Child Support Order”), which required Mr. Kaplan to pay Ms. Kaplan the sum of $4,500 per month as a monthly child support obligation and an additional sum of $18,000 as a retroactive payment of child support. That same day, the court entered a second order (the “Post-Separation Support Order”) that required Mr. Kaplan to pay Ms. Kaplan $20,000 monthly for the following thirty six (36) months as post-separation support as well as to make an arrears payment of $40,000.

In both the Child Support Order and the Post-Separation Support Order, the trial court found that Mr. Kaplan had gross monthly earnings of at least $48,779.00 and net monthly earnings of $28,662.56. The court also found that Mr. Kaplan had an additional earning capacity as a result of his consulting work and concluded that he had sufficient income to pay the total support obligation ordered by the court.

Kaplan v. Kaplan, ––– N.C. App. ––––, 814 S.E.2d 486, slip op. *2 (2018) (unpublished) (“Kaplan I”).

In addition to the $20,000 monthly post-support payment, the 2015 Post-Separation Support Order also noted which party was responsible for paying various payments and expenses. Father was required to maintain Mother “under his current major medical, dental and hospitalization insurance” and to pay various other expenses:

6. But for the house, as incident and consequence of this Order, [Father] is ordered to continue to pay all of those things for which he claims credit in his affidavit, for the benefit of [Mother], including security, Sirius, HVAC, appliance repair, pool maintenance, garbage, post office box, HOA fees, and credit card payments.

(Emphasis added.) The “affidavit” noted in the order is not attached to the order and is not part of our record on appeal. However, the findings of fact list the “reasonable monthly needs and expenses” of each party. As relevant to this opinion, based upon the findings as to Mother's monthly expenses, the order allocated the expense for “Housing” in the amount of $5,489.00 per month to Mother. In short, the house payment was one of the few obligations Father was not ordered to pay.¹

In November 2017, the trial court entered an order for wage garnishment to secure payment of Father's child support obligation of $4,500.00 per month and an order for Interim Distribution. Mother filed motions for contempt based upon Father's failure to pay all of the various obligations and support he was ordered to pay. Contempt orders have been entered, including the contempt order of March 2017 addressed by the prior appeal, finding Father in civil contempt

for his failure to pay the support obligation required by the Child Support Order and the Post-Separation Support Order as well as his failure to pay Ms. Kaplan's attorneys’ fees. The court found that Mr. Kaplan's noncompliance with its prior orders was “willful, deliberate and without just cause” and that he “has the means and ability to comply with this Court's Orders or is able to take steps which would enable him to comply with the Court's Orders.” The court ordered that Mr. Kaplan “shall be placed in the custody of the Union County Jail until such time as he purges himself of civil contempt by making a payment in the amount of $132,420.45 to be made payable to Stephanie Kaplan.”

Id. at *4-5.

On 16 March 2018, Mother filed a pro se motion entitled “Emergency Motion for Expedited Hearing and Contempt Due to Foreclosure Hearing on Tuesday, March 27, 2018, and Sale Date of Tuesday, April 24, 2018, Including Additional Time-Sensitive Issues[.]” (“Emergency Motion”) (Original in all caps.) Mother's motion was based upon “N.C.G.S. 5A and 50-13.12[.]” Chapter 5A of the North Carolina General Statutes (2017) deals with contempt and has three articles, addressing criminal contempt, civil contempt, and contempt by juveniles. North Carolina General Statute § 50-13.12 (2017) addresses “Forfeiture of licensing privileges for failure to pay child support or for failure to comply with subpoena issued pursuant to child support or paternity establishment proceedings[,]” although in the motion, Mother did not request any sort of relief related to licensing privileges. The Emergency Motion included many allegations regarding the requirements of the various prior orders, as noted above, and alleged that Father had failed to pay various obligations as ordered. As relevant to the issue on appeal, Mother alleged that Father “has willfully and knowingly allowed the house to go into foreclosure and refuses to cure.” Mother also alleged she had received notice of a foreclosure hearing set for 27 March 2018 and a sale date of 24 April 2018. Mother alleged the foreclosure letter demanded payment of “$826,374.49 (as of the date of the letter), to cure the foreclosure.” Mother requested that Father be held “in willful civil and/or criminal contempt[;]” that an emergency hearing be held; and that she receive “immediate relief on all issues[,]” including “ordering [Father] to immediately deposit in escrow with the Clerk of the Court, precisely the amount of funds demanded by the mortgage company to reinstate the mortgage and cancel the foreclosure in advance of the hearing date[.]” Mother did not request issuance of an order to show cause, and no order to show cause was issued.

The trial court heard the Emergency Motion on 22 April 2018. Mother was present and represented by counsel; Father was not present but was represented by counsel. On 17 July 2018, the trial court entered an order as a result of the hearing entitled “Order on Emergency Motion for Expedited Hearing and Contempt[.]” (Original in all caps.) Father appealed.

II. Interlocutory Order

The order on appeal does not resolve all claims and is therefore interlocutory:

An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. A party cannot immediately appeal an interlocutory order unless (1) a trial court enters a final judgment to fewer than all of the claims or parties in an action and certifies that there is no reason to delay the appeal or (2) the failure to grant immediate review would affect a substantial right. A right is substantial if it will be lost or irremediably and adversely affected if the trial court's order is not reviewed before a final judgment. Whether a substantial right is affected is determined on a case-by-case basis and should be strictly construed.

Nello L. Teer Co. v. Jones Bros., Inc., 182 N.C. App. 300, 303, 641 S.E.2d 832, 835 (2007) (citations and quotation marks omitted).

Father contends that although the order “contains no legal basis” for the $50,000 payment ordered or “findings of fact[,]” it “does state this is a ‘final order as to the single issue stated herein[,]’ ” and thus is immediately appealable. The order does include the statement that it “is a final order as to the single issue stated herein[,]” but the order is obviously not a “final order” for purposes of appeal since a final order “is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Regions Bank v. Baxley Commercial Props., LLC, 206 N.C. App. 293, 295, 697 S.E.2d 417, 419 (2010) (citation and quotation marks omitted).

The entire body of the order on appeal is:

This matter came before the undersigned Judge Presiding over the District Court Division of the General Court of Justice, Union County, North Carolina. Plaintiff filed a motion on March 16, 2018 entitled Emergency Motion for Expedited Hearing and Contempt Due to Foreclosure hearing on Tuesday, March 27, 2018, and Sale Date of Tuesday, April 24, 2018, Including Additional Time-Sensitive Issues. A hearing was conducted on April 22, 2018. Plaintiff, Mother was present and represented by her attorney Phillip A. Greenblatt, Esq, and her general appearance counsel, Taylor B. Simmons, Esq. Defendant/Father was not present but was represented by Leonard G. Kornberg, Esq. After hearing testimony in these matters, arguments of counsel and after consideration of the Plaintiff's prayer for mortgage foreclosure relief set forth in Paragraph No. 4 on Page 4 of the Plaintiff's Motion the Court entered the following Order with respect to the issue of the home foreclosure:

IT IS HEREBY ORDERED that Defendant, Keith Kaplan, shall pay no later than June 30, 2018 the amount of $50,000.00 into escrow with the Union County Superior Court Clerk.

IT IS FURTHER ORDERED that this is a final order as to the single issue stated herein.

IT IS FURTHER ORDERED that there is no just cause to delay enforcement or appeal this order.

Since the order has no findings or conclusions but states it is based upon “Paragraph No. 4 on Page 4 of the Plaintiff's Motion” and “the issue of the home foreclosure[,]” we turn to the Emergency Motion in hope of determining a legal basis for the order.

Plaintiff's motion has six pages with numbered paragraphs 1-26 and over 50 pages of attached exhibits. Inexplicably, the trial court did not simply refer to a simple paragraph number, so we must try to discern the correct paragraph from the context of the fourth page of the motion; the pages of the motion are not numbered. There is no paragraph numbered as “4” on Page 4. Page 4 of the motion begins with subsection (d) through (l) of paragraph 10, which lists ways Father “failed to comply within the requirements” of the orders discussed in the first three pages of the motion. There are three more full paragraphs on page 4, numbered 11 through 13. Therefore, paragraph 13 seems to be the fourth paragraph on page 4. It alleges: “The defendant has intentionally taken steps and actions to destroy Plaintiff's financial well[-]being, her credit, and the ability of Plaintiff and Minor Child to live a normal, peaceful and healthy life, according to their accustomed standard of living.” Paragraph 13 does not address foreclosure and none of the other paragraphs on page 4 address foreclosure.

There is a section on page 5 of the motion entitled “Foreclosure of Home” and it has 4 paragraphs. The fourth paragraph on page 5 states: “17. Plaintiff and minor child will be evicted to the street without a home.” Further, on page 6 ² the prayer for relief has five paragraphs and paragraph 4 requests,

4. That immediate relief on all issues be granted to Plaintiff, including ordering Defendant to immediately deposit in escrow with the Clerk of the Court, precisely the amount of funds demanded by the mortgage company to reinstate the mortgage and cancel the foreclosure in advance of the hearing date of Tuesday, March 27, 2018.

We simply cannot determine what paragraph the trial court was referencing as the 4th paragraph on page 4, although it appears it was most likely paragraph 4 on page 6. Furthermore, we again note the basis of the motion was “N.C.G.S. 5A and 50-13.12[,]” and neither of these statutes address foreclosure. See N.C. Gen. Stat. Chap. 5A § 50-13.12. We therefore must consider the order simply as an order directing Father to pay $50,000, apparently based upon the impending foreclosure but without any legal basis for any monetary award. Although the prior orders required Father to pay post-separation support, child support, and various other expenses such as insurance, medical expenses, and other obligations, no order required him to pay the mortgage payment. Mother's motion acknowledged that she had sole responsibility to pay the mortgage payment and had sole possession of the home, although Father was also supposed to be paying post-separation support and child support which would enable her to pay the mortgage.

Father contends that the order on appeal could be considered an order for civil contempt, and civil contempt orders are immediately appealable. “A person found in civil contempt may appeal in the manner provided for appeals in civil actions.” N.C. Gen. Stat. § 5A-24 (2017); see Guerrier v. Guerrier, 155 N.C. App. 154, 158, 574 S.E.2d 69, 71 (2002) (“The appeal of any contempt order, however, affects a substantial right and is therefore immediately appealable.”). Mother's motion did ask that Father “be adjudged in willful civil and/or, criminal contempt[,]” but the order on appeal has no findings or conclusions relevant to either criminal or civil contempt and did not hold Father in contempt.³ We cannot consider the order as a contempt order since it states it addresses only “the issue of the home foreclosure.”

We also note that the trial court included in the decree the following enigmatic statement: “IT IS FURTHER ORDERED that there is no just cause to delay enforcement or appeal this order.” This sentence sounds a bit like a poorly-worded attempt at a Rule 54 certification for immediate appeal. See N.C. Gen. Stat. § 1A-1, Rule 54 (2017) (“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes.” (emphasis added)). But what the sentence actually says is “there is no just cause to delay enforcement” and “there is no just cause to ․ appeal the order.” We doubt the trial court was attempting to order the parties not to appeal the order, but if so, we certainly could not construe that as a Rule 54 certification for immediate appeal.

Father also argues that the order affects a substantial right “because of the amount ordered, the lack of stated basis for the award, as well as the effect of the order indicating it that it is final.” But “an amount ordered” does not demonstrate a substantial right; “the lack of stated basis” goes to a substantive review of the order, not a basis for appeal; and the order by its own terms is not final. Father was ordered to pay the $50,000.00 “into escrow with the Union County Superior Court Clerk” with no direction as to how the Clerk should disburse the funds. (Emphasis added.). The order did not direct the Clerk to apply the funds to arrearages owned on the mortgage or for any other purpose. Presumably, some future order would address the disposition of the $50,000.00 held in escrow by the Clerk of Court, perhaps to apply the funds to Father's child support or post-separation support arrearages. In any event, $50,000 would not have been sufficient to delay the foreclosure for very long, if at all. Mother's counsel indicated the “total debt” to the bank “is probably $860,000.” When the trial court enters a final, appealable order addressing disposition of the $50,000, Father may have the option of appealing this order along with the final order. See generally State ex rel. Comr of Insurance v. N.C. Rate Bureau, 102 N.C. App. 809, 811–12, 403 S.E.2d 597, 599 (1991) (“Here, the effect of the order denying the release of the funds is temporary and not permanent. The Commissioner's order only determines that the funds are not to be released now. It does not purport to determine who is entitled to the money. For these reasons, we hold that the appeal is interlocutory. The order of the Commissioner is not immediately appealable under either G.S. 1A-1 Rule 54(b) or G.S. 1-277 and 7A-27(d). The Rate Bureau has not shown that it will lose any right here that the law regards as substantial. We fail to see how appellants will be prejudiced if the order remains in effect until the Commissioner concludes the proceedings in this rate filing. Accordingly, this appeal is dismissed.”). Until then, we dismiss this appeal as interlocutory.

DISMISSED.

Report per Rule 30(e).

FOOTNOTES

1.   Mother's exhibit 5 is a table showing child support and post-separation support payments Father actually made and those he missed, with notes as to some months. For May, June, July, and August, 2017, she noted: “Keith paid the mortgage instead of paying me PSS that is short – I was ordered to pay mortgage – letters have been written that Keith is to pay me PSS and I pay mortgage[.]” For the time period covered by the table, Mother contended Father should have paid $948,875.71, but he had actually paid only $626,203.93.

2.   The sixth page of the motion does have a number “4” at the bottom as does the verification page following it. The preceding pages do not have any numbers.

3.   Father made a motion to dismiss the Emergency Motion as to contempt based upon Rule 12(b)(6), and after hearing argument on this issue, the trial court stated: “In granting the motion to dismiss for failure to state a claim upon which relief can be granted. In particular, Mr. Kornberg, you are to draw the order and to cite as a basis for the dismissal that nowhere in the pleadings does it allege that the responding party to the show cause motion -- nowhere in it does it allege that he has had the means and ability to comply.” (Emphasis added.) But the order on appeal does not include dismissal of the contempt motion, and Father's counsel who was directed to draft the order dismissing the contempt motion is the same counsel arguing to this Court that we should consider the order on appeal as a contempt order. The trial court later specifically directed Mother's counsel, Mr. Greenblatt, to draft the order requiring Father to pay $50,000 into escrow, and reiterated that Mr. Kornberg was to draft the order granting the motion to dismiss. Thus, there is a possibility that the trial court entered a separate order dismissing the contempt motion and that order was not included in our record on appeal; this may explain the statement in the decree that “this is a final order as to the single issue stated herein” as this could imply there is another order on the other issue, contempt. (Emphasis added). But we can base our opinion only on the record before us, and in any event, Father was not held in contempt.

STROUD, Judge.

Chief Judge McGEE and Judge MURPHY concur.