Schmitt v. Schmitt, 61 N.C. App. 750 (1983)

April 19, 1983 · North Carolina Court of Appeals · No. 8221DC198

61 N.C. App. 750

LINNIE ATHALEA SCHMITT v. DONALD MELVIN SCHMITT

No. 8221DC198

(Filed 19 April 1983)

Appeal and Error § 6.2— preliminary injunction ordering support payments —no right of appeal

Defendant had no right to appeal a preliminary injunction ordering defendant to make monthly support payments pursuant to the terms of a separation agreement until plaintiffs action for breach of the separation agreement is determined on its merits.

APPEAL by defendant from Keiger, Judge. Order entered 19 October 1981 in District Court, Forsyth County. Heard in the Court of Appeals 12 January 1983.

This is an appeal from a preliminary injunction ordering defendant to make monthly support payments, pursuant to the terms of a separation agreement executed by the parties several years earlier, until plaintiffs action for breach of the separation agreement is “heard and determined on its merits.”

Gary J. Walker for the plaintiff appellee.

Pettyjohn & Molitoris, by Theodore M. Molitoris, for the defendant appellant

PHILLIPS, Judge.

This preliminary injunction is inherently and expressly interlocutory in nature. Consequently, it is not immediately ap-pealable unless it affects a substantial right. G.S. § 1-277, § 7A-27(d). A showing to that effect has neither been made nor attempted by the appellant, and our study of the record failed to discover any substantial right of the defendant that might be jeopardized or compromised if the preliminary injunction remains in force until the case is tried. Defendant has merely been ordered to continue making the monthly payments that he voluntarily contracted to make several years earlier. This being so, even though the question of appealability was not raised by the parties, under Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980), we are obliged to dismiss the appeal on our own motion.

Appeal dismissed.

Judges Webb and Becton concur.