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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1075 NORTH CAROLINA COURT OF APPEALS Filed: 7 September 2004

JAMES G. DANAI, Plaintiff, v. ELLEN DANAI, Defendant. Appeal by plaintiff from a summary judgment order entered 23 May 2003 by Judge Marcia Morey in Durham County District Court. Heard in the Court of Appeals 29 April 2004. Dorrestein & Crane, P.C., by Ronald Dorrestein, for plaintiff appellant. Jill E. Burton & Associates, defendant appellee. McCULLOUGH, Judge. The issues raised in this appeal pertain to the following undisputed facts. On 19 March 1999, Mr. James Danai (plaintiff) by Alyscia G. Ellis, for Durham County No. 03 CVD 824

and Ms. Ellen Danai (defendant) were divorced by judgment entered in Wake County District Court. On 3 March 1999, prior to the

divorce judgment, the two parties entered into a marital separation agreement (the "original separation agreement"), which addressed issues between the parties alimony. related Within to the cessation of the

marriage,

including

the

original

separation

-2agreement, a clause allowed it to be modified by written consent

of the parties or by an order of a court of competent jurisdiction. The agreement was never incorporated into a court order. On 4 February 2000, an order was issued in Wake County District Court finding that plaintiff had breached this agreement. Among those things ordered by the district court was for the parties to cooperate in preparing and entering a qualified domestic relations (QDR) order as required by the original separation agreement. Thereafter, defendant's counsel at the time prepared

the QDR order which was accepted and entered in the Wake County District Court. However, the pension plan administrator of

defendant's employer, Nortel Network ("Nortel"), rejected the QDR in the spring of 2000. Subsequent to Nortel's rejection, plaintiff was then called back to the office of defendant's counsel, where on 29 August 2000 he signed a two-page modification to the separation agreement (the "modified separation agreement"). There is forecast evidence that plaintiff signed an amended QDR order months after he signed the modified separation agreement, which was accepted by Nortel. Plaintiff brought the following claims against defendant on 6 February 2003: rescission of the original separation agreement based on unconscionability; equitable distribution; rescission of the modified separation and agreement of based the on mistake or

unconscionability; agreement.

amendment

modified

separation

In her answer, defendant brought a counterclaim for

breach of the modified separation agreement and attorney's fees as

-3provided under the original and modified separation agreement. Plaintiff voluntarily dismissed his claims of rescission of the original separation agreement and equitable distribution. The trial court granted summary judgment in favor of the defendant, denying all of plaintiff's claims as a matter of law. The court concluded that it lacked subject matter jurisdiction over plaintiff's claim for modification of the separation agreement. The court found no issue of fact as to plaintiff's claim for rescission of the modified separation agreement based on unconscionability, and granted summary judgment in favor of defendant on that claim. The court granted summary judgment in favor of defendant's request for attorney's fees, awarding fees for the defense of plaintiff's claims in the amount of $4,475.00. Finally, the court "retain[ed] jurisdiction over the parties and the subject matter as it relates to the defendant's counterclaim for breach of contract." Plaintiff now appeals, raising four issues: Issues (I) & (II) relate to whether the trial court erred in finding that it lacked subject matter jurisdiction to amend the modified separation

agreement; and issues (III) & (IV) relate to whether the court erred in awarding attorney's fees. Initially, we note that this is an appeal from an

interlocutory order because the trial court's order did not dispose of the cause of action as to all claims. See N.C. Gen. Stat.

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