An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-864

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

MADELINE C. SIMPSON (Cloud),

Plaintiff,

v. Forsyth County

No. 95 CVD 6117

THURMOND H. SIMPSON, JR.,

Defendant.

Appeal by plaintiff from order entered 28 January 2013 by 

Judge Laurie Hutchins in Forsyth County District Court. Heard 

in the Court of Appeals 8 January 2014.

Vernon E. Cloud Jr. for plaintiff-appellant.

No brief filed on behalf of defendant-appellee.

DAVIS, Judge.

Madeline Simpson, now Madeline Cloud (“Plaintiff”), appeals 

from the trial court’s 28 January 2013 order (1) setting aside a 

prior order acknowledging Thurmond H. Simpson, Jr. (“Defendant”) 

as the father of Plaintiff’s minor child; and (2) requiring the 

parties to undergo genetic testing. After careful review, we 

conclude that Plaintiff has failed to establish that her
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interlocutory appeal implicates a substantial right.

Accordingly, we dismiss the appeal.

Factual Background

Plaintiff and Defendant were married on 10 August 1991 and 

divorced on 5 September 1996. One child, “Thomas,”1 was born 

during the marriage in February 1995. Plaintiff was awarded

primary physical custody of Thomas with Defendant having 

visitation rights. On 26 September 1995, Defendant signed a 

voluntary support agreement (“the Voluntary Support Agreement”)

in which he acknowledged paternity and agreed to make payments 

to Plaintiff for the support of Thomas. The Voluntary Support 

Agreement was approved by the trial court and filed on 26 

September 1995.

On 15 April 2011, Defendant filed a motion to set aside his 

acknowledgement of paternity contained in the Voluntary Support 

Agreement pursuant to Rule 60 of the North Carolina Rules of 

Civil Procedure. The motion alleged that while Defendant had

previously believed he was the natural father of Thomas, he had 

recently “heard a rumor” that another man was, in fact, Thomas’

biological father. On this ground, Defendant asked the trial

court to immediately terminate his child support obligation. 

 

1 “Thomas” is a pseudonym used to protect the identity of the 

child.
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Defendant attached the results of an at-home paternity test —

which purportedly excluded him as the father — to his motion.

On 21 November 2011, Defendant’s Rule 60 motion was heard 

before the Honorable Chester C. Davis in Forsyth County District 

Court. On 10 January 2012, Judge Davis entered an order denying

Defendant’s Rule 60 motion on the basis that it was untimely in 

that it had been brought more than one year after the Voluntary 

Support Agreement was entered.

On 5 June 2012, Defendant filed a second motion to set 

aside his prior acknowledgement of paternity. In this motion, 

Defendant sought relief based not only on Rule 60 but also 

pursuant to N.C. Gen. Stat. §§ 49-14(h), 110-132, and 50-13.3. 

Defendant attached a copy of the results of his at-home 

paternity test to this motion as well.

Defendant’s second motion was heard in Forsyth County 

District Court on 29 October 2012 before the Honorable Laurie 

Hutchins. By order entered 28 January 2013, Judge Hutchins set 

aside the acknowledgement of paternity contained in the 

Voluntary Support Agreement and ordered the parties to submit to 

genetic testing pursuant to N.C. Gen. Stat. §§ 49-14(h) and 8-

50.1 as well as Rule 35 of the North Carolina Rules of Civil 

Procedure. Plaintiff appealed to this Court.
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Analysis

Although Plaintiff did not raise the issue in her brief, 

“whether an appeal is interlocutory presents a jurisdictional 

issue, and this Court has an obligation to address the issue sua 

sponte.” Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 

651 S.E.2d 261, 263 (2007) (citation, quotation marks, and 

brackets omitted). “A final judgment is one which disposes of 

the cause as to all the parties, leaving nothing to be 

judicially determined between them in the trial court.” Id.

(citation omitted). Conversely, an order or judgment is 

interlocutory if it does not settle all of the issues in the 

case but rather “directs some further proceeding preliminary to 

the final decree.” Heavner v. Heavner, 73 N.C. App. 331, 332, 

326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 

610 (1985). Generally, there is no right of immediate appeal 

from an interlocutory order. Paradigm Consultants, Ltd. v. 

Builders Mut. Ins. Co., ___ N.C. App. ___, ___, 745 S.E.2d 69, 

72 (2013). The prohibition against appeals from interlocutory 

orders “prevents fragmentary, premature and unnecessary appeals 

by permitting the trial court to bring the case to final 

judgment before it is presented to the appellate courts.” 
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Russell v. State Farm Ins. Co., 136 N.C. App. 798, 800, 526 

S.E.2d 494, 496 (2000) (citation and brackets omitted).

An interlocutory order may be appealed, however, if the 

order implicates a substantial right of the appellant that would 

be lost if the order was not reviewed prior to the issuance of a 

final judgment. Guilford Cty. ex rel. Gardner v. Davis, 123 

N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996). Our courts have 

described a substantial right as one that “materially affect[s] 

those interests which a man is entitled to have preserved and 

protected by law: a material right.” Oestreicher v. Am. Nat’l 

Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)

(citation and quotation marks omitted). It is the appellant’s 

burden to show this Court that “the order deprives the appellant 

of a substantial right which would be jeopardized absent a 

review prior to a final determination on the merits.” Jeffreys 

v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 

S.E.2d 252, 254 (1994).

Here, the trial court’s order is not a final judgment 

because it does not dispose of the entire controversy between 

the parties. While the trial court set aside Defendant’s prior 

acknowledgement of paternity because it determined that 

Defendant had successfully rebutted the presumption that he was 
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the natural father of Thomas, the trial court has not yet made a 

judicial determination of paternity. Rather, the trial court

ordered the parties to submit to genetic testing, meaning that 

an ultimate determination as to paternity will not be made until 

some unspecified future date. Furthermore, the portion of 

Defendant’s motion seeking relief from his child support 

obligation remains unresolved, presumably to be determined once 

the results of the genetic testing are submitted to the trial 

court. As such, in order for this Court to have jurisdiction

over this interlocutory appeal, Plaintiff bears the burden of 

establishing that a substantial right of hers is implicated. 

See Ratchford v. C.C. Mangum Inc., 150 N.C. App. 197, 200, 564 

S.E.2d 245, 248 (2002) (“The party desiring an immediate appeal 

of an interlocutory order bears the burden of showing that such 

appeal is necessary to prevent loss of a substantial right.” 

(citation and quotation marks omitted)).

This Court has previously held that “an order requiring 

parties and their minor child to submit to blood grouping 

testing does not affect a substantial right and is, therefore, 

interlocutory and not appealable.” Gardner, 123 N.C. App. at 

529, 473 S.E.2d at 641; see Davie Cty. Dep’t of Social Servs. v. 

Jones, 62 N.C. App. 142, 142, 301 S.E.2d 926, 927 (1983) 
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(dismissing defendant’s appeal from order directing him to 

submit to blood grouping and comparison test to determine 

paternity as interlocutory and not affecting substantial right).

Rule 28(b)(4) of the North Carolina Rules of Appellate 

Procedure mandates that where an appeal is interlocutory, the 

statement of the grounds for appellate jurisdiction contained

within an appellant’s brief “must contain sufficient facts and 

argument to support appellate review on the ground that the 

challenged order affects a substantial right.” N.C.R. App. P. 

28(b)(4). “It is not the duty of this Court to construct 

arguments for or find support for [an] appellant’s right to 

appeal from an interlocutory order.” Jeffreys, 115 N.C. App. at 

380, 444 S.E.2d at 254.

Plaintiff’s brief fails to acknowledge the interlocutory 

nature of this appeal and presents no argument whatsoever that 

the order affects a substantial right.

2 Plaintiff has therefore 

failed to meet her burden of establishing that a substantial 

right would be lost or prejudiced unless an immediate appeal is 

allowed. Accordingly, we dismiss Plaintiff’s appeal.

Conclusion

 

2 Indeed, in clear violation of the Appellate Rules, Plaintiff’s 

brief contains no statement of any kind regarding the grounds 

for appellate jurisdiction. See N.C.R. App. P. 28(b)(4).
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For the reasons set forth above, Plaintiff’s interlocutory 

appeal is dismissed.

DISMISSED.

Judges STEELMAN and STEPHENS concur.

Report per Rule 30(e).