Moore v. Moore, 14 N.C. App. 165 (1972)

March 29, 1972 · North Carolina Court of Appeals · No. 7215DC274

14 N.C. App. 165

FRANCIA H. MOORE v. SAUNDERS W. MOORE

No. 7215DC274

(Filed 29 March 1972)

Appeal and Error § 6— appeal from interlocutory order — dismissal

Appeal from an order relieving defendant from making alimony and child support payments pending determination of defendant’s motion for modification of a previous order is an appeal from an interlocutory order which is dismissed as being premature. Court of Appeals Rule 4.

Appeal by plaintiff from order of McLelland, District Judge, entered at the 5 November 1971 Civil Session of Ala-mance District Court.

The record on appeal discloses: On or about 1 October 1971, pursuant to G.S. 50-13.7, defendant filed a motion in this cause asking for modification of a previous order for alimony and child support because of changed circumstances. Defendant alleged that in July or August of 1970, following the entry of the previous order, plaintiff remarried and removed the child from Alamance County to Venezuela, South America, and although defendant had fully and promptly paid substantial alimony and support payments, plaintiff had continuously refused to make arrangements with defendant for him to see his child. He asked the court to enter an order fixing and determining reasonable rights of visitation between the child and defendant and conditioning the support payments upon plaintiff’s complying with such order.

Notice was given to plaintiff’s attorneys in Alamance County and to plaintiff in Venezuela that defendant would ask the court to hear his motion on 5 November 1971. On 5 November 1971, plaintiff through her counsel moved that the hearing be continued for a period of 120 days for the reason that plaintiff resides in South America and was unable to travel due to giving birth to a child during the month of October 1971. The court entered an order denying plaintiff’s motion for a continuance of 120 days but continued the hearing until 4 January 1972 with the proviso that defendant be relieved of any and all alimony and child support payments “until the hearing and determination of the matters set forth in the motion in this cause.”

Plaintiff excepted to the order, particularly that part relieving defendant from payment of alimony and child support payments pending a hearing on the motion, and appealed.

Latham, Pickard & Ennis by James F. Latham for plaintiff appellant.

H. Clay Hemric for defendant appellee.

BRITT, Judge.

Defendant has moved in this court for a dismissal of plaintiff’s appeal on the ground that plaintiff is attempting to appeal from the ruling on an interlocutory motion which is not permissible under Rule 4 of the Rules of Practice in the Court of Appeals of North Carolina. The motion is well taken and is allowed.

We think the substantial legal questions plaintiff attempts to raise can best be considered following a hearing on defendant’s motion if, in fact, there is a desire for their consideration at that time.

Appeal dismissed.

Judges Campbell and Graham concur.