1. Civil Procedure--Rule 59(e)--post-trial error of law--not a proper ground
Defendant-husband's appeal in an equitable distribution case from the trial court's order
denying his Rule 59(e) motion for relief is dismissed because: (1) a Rule 59(e) motion must be
based on one of the grounds listed in Rule 59(a); (2) defendant bases his motion on a purported
post-trial error of law; and (3) post-trial errors of law are not among those grounds listed in Rule
59(a).
2. Civil Procedure--Rule 60(a)--error of law--determined by appellate courts
Defendant-husband's appeal in an equitable distribution case from the trial court's order
denying his Rule 60(a) motion for relief based on a purported error of law is dismissed because
Rule 60(a) only governs the granting of relief based upon clerical mistakes, fraud, and newly
discovered evidence, and errors of law are determined by the appellate courts.
3. Interest--accrual date--amended judgment
Although defendant did not specifically appeal from the underlying amended equitable
distribution judgment for his challenge of the trial court's ability to change the date at which
interest on his equitable distribution award accrued, the Court of Appeals granted certiorari and
determined that the trial court did not err because interest runs from the date of an amended
judgment when a judgment is reversed or vacated on appeal.
4. Civil Procedure--Rule 60(a)--changing accrual date of interest--incidental matter
Rule 60(a) was a proper mechanism for the trial court to change the interest accrual date
of the equitable distribution award since interest is an incidental matter which does not alter the
effect of the original order dealing with the substantive matter of the distributive award.
Jackson & Jackson, by Phillip T. Jackson, for defendant-
appellant.
Ingrid Friesen for plaintiff-appellee.
LEWIS, Judge.
This is the second appeal between these parties stemming froman equitable distribution order. The narrow issue pre
sented in
this appeal involves the date at which interest on the distributive
award accrued. Although narrow in nature, this issue is
complicated by the myriad motions and orders filed in this case.
Consequently, a brief outline of the procedural history is
necessary in order to understand the parties' specific arguments on
appeal.
Plaintiff Shirlee Ice and defendant Edward L. Ice were married
on 22 July 1980 and divorced on 15 December 1994. The trial court
filed an equitable distribution order on 26 November 1996. That
order, among other things, required plaintiff to pay defendant a
distributive award of $50,000. Defendant then appealed to this
Court, arguing that some of the parties' property had been
classified incorrectly. In an unpublished opinion filed 7 April
1998, we agreed that some of the property had been improperly
classified and remanded the case to the trial court for a new
classification and distribution.
On 30 June 1998, the trial court filed its amended equitable
distribution order ("amended order"). In light of thereclassification, this amended order increased defendant's
distributive award to $80,544.93. Neither party disputes the
amount of this amended award. Plaintiff, however, filed a Rule
60(a) motion in an attempt to correct some perceived clerical
errors in the amended order. Specifically, plaintiff sought two
corrections: (1) that the phrase "this order" be replaced with the
more precise phrase "this corrected judgment"; and (2) that
interest on defendant's distributive award not accrue until 30 June
1998, the date of the amended equitable distribution order, as
opposed to 26 November 1996, the date of the original equitable
distribution order. In response to her motion, the trial court
filed an order on 5 October 1998 ("the corrected order") correcting
its earlier amended order. This corrected order decreed: It is therefore ordered that the j
udgment, as
corrected and amended, is additionally
corrected so that the phrase "this order" is
stricken wherever it appears in decretal
paragraph #2 and is replaced with "this
corrected judgment," so that the year's time
for the Plaintiff to pay the distributive
award will run from June 30, 1998.
Unclear as to what this decree meant in terms of the date
interest accrued, defendant thereafter filed a motion for
clarification with the trial court. Contemporaneously, he also
filed his own Rule 59(e) and Rule 60(a) motions for relief,
claiming that, if the corrected order was intended to change the
date of accrual to 30 June 1998, such a change could not be
effectuated through plaintiff's Rule 60(a) motion, but could only
be accomplished through appellate review. In an order filed 8
December 1998, the trial court first clarified that its 5 October
1998 corrected order was intended to change the date of accrual to
30 June 1998. The trial court then concluded that an error with
respect to the date of accrual was the type of error that could be
corrected through plaintiff's Rule 60(a) motion. Accordingly, it
denied defendant's own Rule 59(e) and Rule 60(a) motions for
relief. From this order, defendant now appeals.
[1]At the outset, we must determine whether this appeal is
properly before us. Defendant has only appealed from the 8
December 1998 order denying his Rule 59(e) and Rule 60(a) motions
for relief. However, these motions were not properly before the
trial court. A Rule 59(e) motion for relief from a judgment must
be based on one of the grounds listed in Rule 59(a). Smith v.
Johnson, 125 N.C. App. 603, 606, 481 S.E.2d 415, 417, disc. reviewdenied, 346 N.C. 283, 487 S.E.2d 554 (1997). Defendant bases
his
motion on a purported post-trial "error of law," namely the trial
court's changing of the date interest accrued. Post-trial errors
of law are not among those grounds listed in Rule 59(a).
Accordingly, defendant's Rule 59(e) motion was improper. As such,
his appeal from the denial of that motion must be dismissed. See
Dusenberry v. Dusenberry, 87 N.C. App. 490, 492, 361 S.E.2d 605,
606 (1987).
[2]Defendant's Rule 60(a) motion for relief from judgment was
also improper. Rule 60(a) only governs the granting of relief
based upon clerical mistakes, fraud, newly discovered evidence, and
the like. Purported errors of law are not the appropriate basis
for a Rule 60(a) motion -- such errors are for our appellate
courts. See Chicopee, Inc. v. Sims Metal Works, 98 N.C. App. 423,
431, 391 S.E.2d 211, 216, disc. review denied, 327 N.C. 426, 395
S.E.2d 675 (1990) ("Erroneous judgments may be corrected only by
appeal, and a motion under [Rule 60(a)] cannot be used as a
substitute for appellate review."). Because defendant's Rule 60(a)
motion was improper to begin with, his appeal from a denial of that
motion must necessarily be dismissed.
[3]Although his notice of appeal only references the 8
December 1998 order denying his motions for relief, defendant is
really contesting the propriety of the underlying 5 October 1998
corrected order. Specifically, he is challenging the trial court's
ability to change the date at which interest on his distributive
award accrued. However, "[n]otice of appeal from denial of amotion to set aside a judgment which does not also specifically
appeal the underlying judgment does not properly present the
underlying judgment for our review." Von Ramm v. Von Ramm, 99 N.C.
App. 153, 156, 392 S.E.2d 422, 424 (1990). The defendant has not
properly preserved for review the 5 October 1998 corrected
judgment, and his appeal challenging that corrected judgment is
dismissed.
Nonetheless, in our discretion, and due to the procedural
complexities of this case, we choose to grant defendant's petition
for certiorari and reach the merits of his appeal. Essentially,
defendant's appeal boils down to two inquiries: (1) was it proper
for the trial court to change the date of accrual from 26 November
1996 to 30 June 1998; and (2) if so, could the trial court make
this change pursuant to plaintiff's Rule 60(a) motion? We answer
both questions in the affirmative.
In equitable distribution actions, interest on any
distributive award accrues from the date of entry of judgment, not
from the date of separation. Appelbe v. Appelbe, 76 N.C. App. 391,
394, 333 S.E.2d 312, 313 (1985). Here, we have two equitable
distribution judgments, the 26 November 1996 original judgment and
the 30 June 1998 judgment modifying the original one following
defendant's first appeal. Our task is thus to analyze which
judgment sets the date of accrual.
Where a judgment is undisturbed on appeal, interest runs from
the date of the original judgment. See Anderson v. City of
Bessemer City, 619 F. Supp. 153, 154 (W.D.N.C. 1985); see alsoTeich & Co., Inc. v. LeCompte, 222 N.C. 602, 603, 24 S.
E.2d 253,
253 (1943) (stating that the reversal of defendant's recovery on
its counterclaim did not disturb plaintiff's recovery on its own
claim and thus interest on plaintiff's recovery ran from the
original judgment). Logic dictates the opposite result where a
judgment is reversed or vacated on appeal. In that situation,
interest runs from the date of the amended judgment. See, e.g.,
Ashland Oil, Inc. v. Phillips Petroleum Co., 607 F.2d 335, 336
(10th Cir. 1979); Hysell v. Iowa Pub. Serv. Co., 559 F.2d 468, 476
(8th Cir. 1977); Riha v. Int'l Tel. & Tel. Corp., 533 F.2d 1053,
1054 (8th Cir. 1976).
Here, defendant appealed the initial equitable distribution
judgment and won, resulting in the 30 June 1998 amended judgment.
Accordingly, interest on his distributive award did not accrue
until the date of that amended judgment. The trial court thus
properly changed the date of accrual to 30 June 1998.
[4]Having concluded that the trial court was correct in
changing the date of accrual, we now must determine whether this
change could be made by the trial court through plaintiff's Rule
60(a) motion or whether such a change could only be effectuated
through appellate review.
Rule 60(a) provides a limited mechanism for trial courts to
amend erroneous judgments. Specifically, that rule provides:
Clerical mistakes in judgments, orders or
other parts of the record and errors therein
arising from oversight or omission may be
corrected by the judge at any time on his own
initiative or on the motion of any party and
after such notice, if any, as the judgeorders.
N.C.R. Civ. P. 60(a). In construing this rule, our courts have
drawn a distinction between changes that remedy clerical errors or
omissions and changes that affect the substantive rights of the
parties. The former is permissible under Rule 60(a), whereas the
latter is not. Vandooren v. Vandooren, 27 N.C. App. 279, 281, 218
S.E.2d 715, 717 (1975). "A change in an order is considered
substantive and outside the boundaries of Rule 60(a) when it alters
the effect of the original order." Buncombe County ex rel. Andres
v. Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784, disc.
review denied, 335 N.C. 236, 439 S.E.2d 143 (1993). We conclude
that the 5 October 1998 corrected order that changed the date of
accrual did not alter the effect of the earlier 30 June 1998 order.
We find this Court's prior decision in Ward v. Taylor, 68 N.C.
App. 74, 314 S.E.2d 814, disc. review denied, 311 N.C. 769, 321
S.E.2d 157 (1984), to be most closely analogous to the present
situation. In that case, the trial court, purportedly pursuant to
Rule 60(a), amended a previous order by allowing the surveyor to
recover his costs associated with the surveying work he had done
for trial. Id. at 76-77, 314 S.E.2d at 818. In holding that this
was a proper exercise of Rule 60(a), we stated, "[T]he court's
[initial] failure to allow and tax costs may be considered an
'oversight or omission' in an order." Id. at 80, 314 S.E.2d at
819-20. Furthermore, because costs arise only incidentally to the
subject of the litigation itself, we held that they do not affect
the substantive rights of the parties. Id. at 80, 314 S.E.2d at820.
We conclude that interest on a distributive award is much like
costs associated with surveying. The subject of the litigation
here was the amount of the distributive award; interest was only
incidental and tangential to this matter. Furthermore, changing
the date at which interest accrued did not alter the underlying
distributive award itself. Defendant nonetheless maintains that
his substantive rights were altered by the trial court's change
because he lost approximately $10,000 in interest. However, the
amount of money involved is not what creates a substantive right;
rather, it is the source from which this money is derived. Here,
the $10,000 at stake stemmed from the incidental matter of
interest, not the underlying substantive matter of the distributive
award. Accordingly, we hold that a change in the date at which
interest begins to accrue is something that the trial court could
effectuate through Rule 60(a).
Affirmed.
Judges GREENE and EDMUNDS concur.
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