Sood v. Sood
222 N.C. App. 807
N.C. Ct. App.2012Background
- Ajit Bobby Sood and Diane Lynn Sood married February 7, 2003 and have one child born September 12, 2003.
- They separated in July 2011; plaintiff filed July 15, 2011 in Gaston County seeking primary custody, a temporary custody order, equitable distribution, child support, and a psychological evaluation of defendant.
- A temporary custody hearing occurred November 29, 2011; defendant was represented at the hearing.
- On January 20, 2012 the district court entered an order awarding joint legal custody and primary physical custody to plaintiff.
- Defendant timely appealed the temporary custody order on February 14, 2012.
- The trial court found the custody order was temporary and unresolved on several issues, with a psychological evaluation ordered and some financial issues left open for later determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the interlocutory custody order is appealable | Plaintiff argues appealability under Rule 54(b) or substantial-right exceptions. | Defendant contends the order affects substantial rights and is appealable. | No jurisdiction to hear; interlocutory order dismissed. |
| Whether the order affected a substantial right via First Amendment grounds | Plaintiff’s custody decision framed by religious considerations breached First Amendment rights. | Defendant asserts bias against him based on religion tainted the order. | Issue not preserved for review; no appellate review of First Amendment claim. |
| Whether the court should treat the appeal as a writ of certiorari | If no appeal exists, certiorari may be appropriate. | If there is no right to appeal, certiorari should be granted in appropriate circumstances. | Writ of certiorari denied; no appropriate circumstances shown. |
Key Cases Cited
- Hamilton v. Mortgage Information Services, Inc., 711 S.E.2d 185 (N.C. App. 2011) (interlocutory vs final determination; Rule 54(a) distinction)
- Goldston v. American Motors Corp., 392 S.E.2d 735 (N.C. 1990) (no right of immediate appeal from interlocutory orders)
- Senner v. Senner, 587 S.E.2d 675 (N.C. App. 2003) (interlocutory order may not dispose all issues)
- Regan v. Smith, 509 S.E.2d 452 (N.C. App. 1998) (per una permanent custody standards; ongoing issues)
- In re Key, 643 S.E.2d 452 (N.C. App. 2007) (preservation of recusal issues; Rule 10(a) requirements)