54 N.C. App. 363 | N.C. Ct. App. | 1981
Because further action is required by the trial court to determine plaintiff’s action in its entirety, the judgment is interlocutory in character. “Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment.” Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.
We note that in a memorandum of additional authorities defendant has argued the applicability here of McCarty v. McCarty, --- U.S. --- , 69 L.Ed. 2d 589, 101 S.Ct. 2728 (1981). In McCarty, the United States Supreme Court held, pursuant to the supremacy clause of the United States Constitution, article VI, clause 2, that federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws. In view of our dismissal of this appeal, the issue of applicability to this case of McCarty should now be presented to the trial court prior to any appellate review.
Appeal dismissed.