On April 16th of 2013, I had the privilege of arguing before the North Carolina Supreme Court in the case of Duncan v. Duncan. The case has a long procedural history and I have previously blogged on the concept of interlocutory appeals. The Supreme Court took up this procedural issue on April 16th, 2013. No appellate court has yet reached the merits of the Duncan case, looking only at the question of whether the case is ripe for appeal. It is hard to believe that a case that was filed in 2005, and which I have been engaged in since 2007, is still winding through the appellate courts. Here is an article I wrote for the Family Forum newsletter, a publication of the Family Law Section of the North Carolina State Bar Association, addressing the Supreme Court’s ruling in Duncan v. Duncan, and new legislation permitting the appeal of individual claims as a family law case progresses through the trial court.
2013 is a year of change in the rules of appellate jurisdiction for Family Law Lawyers. On June 13th of 2013, the Supreme Court, in Duncan v. Duncan, ruled that an unresolved attorney fee claim is not a substantive claim rendering an appeal of substantive issues interlocutory. Duncan v. Duncan, 732 S.E.2d 390; 2012 N.C. App. LEXIS 1132 (N.C. Ct. App., 2012); hereinafter, Duncan 4. And, on August 23rd, 2013, NCGS 50-19.1 became law, authorizing the maintenance of appeals of individual family law claims, notwithstanding pending claims in the trial court.
Beginning with the Supreme Court ruling in Duncan 4, Justice Newby characterized an unresolved attorney fee claim related to alimony as “collateral” to a final judgment and “not part of the substantive claims”. Justice Newby’s opinion effectively reverses the Webb case, wherein the Court of Appeals characterized attorney fees in the context of alimony to be a “claim”, the disposition of which is necessary before an entire controversy is determined and an appeal ripe. Webb v. Webb, 196 N.C.App. 770; 677 S.E.2d 462; 2009 N.C.App. Lexis 518, 2009.