Jurisdiction after appeal in family law cases Cheryl Howell June 2004 Institute of Government

General Rule An appropriate appeal divests a trial court of jurisdiction “with regard to all matters embraced within or affected by the judgment which is the subject of the appeal.” Trial court is Functus Officio

General Rule However, trial court keeps jurisdiction over matters not affected by the appeal, as long as they do not concern the subject matter of the appeal

G.S (a) “An order pertaining to custody which has been appealed to the appellate division is enforceable in the trial court by proceeding for civil contempt during the pendency of the appeal. Upon motion, the appellate court may stay contempt order until appeal decided, if justice requires”

Contempt Pending Appeal G.S (f)(9): child support orders G.S (j): orders for the periodic payment of alimony

General Rule An appropriate appeal divests a trial court of jurisdiction “with regard to all matters embraced within or affected by the judgment which is the subject of the appeal.” Trial court is Functus Officio

Inappropriate appeals An appeal that is not appropriate does not divest the trial court of jurisdiction Trial court has the authority to decide whether appeal is appropriate

Appropriate appeals All final judgments can be immediately appealed Judgment is final only when it disposes of all issues as to all parties – leaving nothing to be determined by the trial court All other orders/judgments are interlocutory

Appropriate appeals General rule: Interlocutory orders are not immediately appealable 2 exceptions: –Orders/judgments that affect a substantial right –“Final” orders/judgments certified pursuant to Rule 54(b)

Interlocutory orders That do NOT affect a substantial right: –Temporary custody –“Final” custody (unless physical welfare of child at issue) –Equitable distribution –Postseparation support

Rule of Civil Procedure 54(b) “When more than one claim for relief is presented in an action, … 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.”

Inappropriate appeals An appeal that is not appropriate does not divest the trial court of jurisdiction Trial court has the authority to decide whether appeal is appropriate –But what if court of appeals disagrees?

Attorney fees Special rule?? Trial court loses jurisdiction to award fees after appeal of underlying claims Trial court can address fees following the appeal