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Date of Separation Appeal Dismissed as Interlocutory

Thumbnail image for Judge.jpgThe North Carolina Court of Appeals recently dismissed an appeal as interlocutory. The issue on appeal was the parties’ date of separation. When suit was filed, the husband alleged that the parties’ date of separation was in 1995. The wife, of course, answered and counterclaimed. The interesting part is that the wife alleged that the date of separation was in 2007 – some 12 years later.
The trial court conducted an evidentiary hearing for the sole purpose of determining the parties’ date of separation. After taking evidence and considering the arguments of counsel, the trial court determined that the parties’ actual date of separation was in May of 2006. This happened to be a date that neither husband nor wife alleged to have been the parties’ date of separation.

The husband appealed the trial court’s determination of the parties’ date of separation. On appeal, Husband acknowledged that the appeal was interlocutory (obviously the parties’ respective claims for post separation support, alimony and equitable distribution had not yet been decided). Husband, however, argued that the determination of the parties’ date of separation affects a substantial right because it plays a vital role in the determination of the parties’ Chapter 50 claims.


The North Carolina Court of Appeals held that it was bound by the North Carolina Supreme Court’s determination in Stafford vs. Stafford that a trial Court’s order which determines the parties’ date of separation does NOT affect a substantial right. However, it is worth noting that the posture of the Stafford vs. Stafford case was quite different than the case at bar and, in fact, in Stafford whether the trial Court adopted the Husband’s date of separation or the Wife’s date of separation as inconsequential because both were outside of the one year required for the entry of a Judgment of Absolute Divorce.

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