IN RE: JAMES OLIVER PITTMAN, A Minor Child, DOB: 10-02-00
Nash County Department of Social Services, by Jayne B.
Norwood, and Guardian Ad Litem Program, by Attorney Advocate
Judith L. Kornegay, for petitioner-appellees.
Etheridge, Sykes, Britt & Hamlett, L.L.P., by J. Richard
Hamlett, II, and Massengill & Bricio, P.L.L.C., by Francisco
J. Bricio, for respondent-appellants.
EAGLES, Chief Judge.
James Pittman (“the father”) and Lekeshia Harris (“the
mother”) appeal from the trial court's order adjudicating their
son, James Oliver Pittman, to be a neglected juvenile and ordering
disposition of the custody of the child. The sole issue on appeal
is whether an order signed by a judge after her term had expired is
a valid order. After careful consideration of the record and
briefs, we vacate the order and remand to the trial court for entry
of an order or exercise of its discretion consistent with Rule 63.
The evidence tends to show the following. The father and the
mother had two children together: Jakel Pittman (“Jakel”), born on
3 October 1999, and James Oliver Pittman (“James”), born on 2
October 2000. On 7 January 2000, Jakel was admitted to Pitt County
Memorial Hospital with serious injuries to the head, legs, andspine. Doctors determined that the injuries were non-accidental,
and possibly the result of severe shaking, jamming, pushing,
pulling, and jabbing. Based on the seriousness of Jakel's
injuries, the Nash County Department of Social Services (“DSS”) and
the Sharpsburg Police Department investigated the matter.
During the investigation, the mother provided a statement to
police admitting that she intentionally injured Jakel by “rock[ing]
and bounc[ing] him to[o] hard.” After an adjudicatory hearing in
Nash County District Court on 8 and 16 June 2000, Judge Robert
Evans entered an order on 5 September 2000 adjudicating Jakel an
abused and neglected juvenile as to both parents. This Court
recently held that the mother's statement to the police was
admissible and affirmed the adjudication of Jakel as abused and
neglected. See In re Pittman, ___ N.C. App. ___, 561 S.E.2d 560
(2002).
On 2 October 2000, the mother gave birth to James. Due to the
severity of Jakel's injuries, DSS initiated an investigation of
James. Thereafter, on 16 October 2000, DSS filed a juvenile
petition alleging that James was neglected based upon the
adjudication in Jakel's case. On 2 November 2000, a hearing was
held in Nash County District Court, the Honorable Sarah Bailey
presiding. At the conclusion of the hearing, Judge Bailey orally
adjudicated James to be a neglected juvenile and vested physical
custody of James in DSS. Subsequently, on 16 January 2001, Judge
Bailey signed a written order consistent with her verbal judgment
concluding that James was neglected in that he “reside[d] in a homewhere his sibling was adjudged to have been abused by his mother
and that his father knew or should have known that the abuse was
occurring. Due to the seriousness of the injuries sustained by the
child's sibling, the child reside[d] in an environment injurious to
his welfare.” The father and the mother appeal.
In their first assignment of error, the parents contend that
“[t]he adjudication and disposition order signed by Judge Bailey is
void as she was no longer a de jure nor a de facto District Court
Judge at the time she signed the order.” After carefully
considering the issue, we agree.
“[A] judgment is entered when it is reduced to writing, signed
by the judge, and filed with the clerk of court.” G.S. § 1A-1,
Rule 58. Here, Judge Bailey orally adjudicated James to be a
neglected juvenile and vested physical custody of James in DSS at
the conclusion of the hearing on 2 November 2000. However, Judge
Bailey did not reduce her judgment to writing at that time.
“The announcement of judgment in open court is the mere
rendering of judgment, not the entry of judgment. The entry of
judgment is the event which vests this Court with jurisdiction.”
Worsham v. Richbourg's Sales and Rentals, 124 N.C. App. 782, 784,
478 S.E.2d 649, 650 (1996) (citation omitted); see also In re
Bullabough, 89 N.C. App. 171, 180, 365 S.E.2d 642, 647 (1988) (a
judge may make an oral entry of a juvenile order provided the order
is subsequently reduced to written form).
Here, the parties stipulated that Judge Bailey
was defeated in a judicial election in
November of 2000, by William G. Stewart, andthat as of January [16], 2001, the date the
adjudication and disposition order was signed
by [Judge Bailey], she was no longer an
elected judicial official. As of January
[16], 2001 the Honorable William G. Stewart
had been sworn into office as a District Court
Judge and officially held the position of
District Court Judge formerly held by Sarah P.
Bailey.
Significantly, Judge Bailey signed the written order on 16 January
2001 -- approximately one and a half months after her term had
expired. On appeal, the parents contend that Judge Bailey is an
usurper and that the judicial acts she performed after her term had
expired are void.
Where the validity of an act of a person acting in a judicial
office is challenged “in a collateral proceeding before another
court on the theory that [the person] had no right to the office,
the court may inquire into [the person's] title to the judicial
office far enough to determine whether [the person] was a judge de
jure, or a judge de facto, or a mere usurper at the time [the
person] performed the act in question.” In re Wingler, 231 N.C.
560, 564, 58 S.E.2d 372, 375 (1950). A judge de jure “is one who
is regularly and lawfully elected or appointed and inducted into
office and exercises the duties as his right. All his necessary
official acts are valid, and he cannot be ousted.” Norfleet v.
Staton, 73 N.C. 546, 550 (1875).
A judge de facto “is one who goes in under color of authority
. . . or who exercises the duties of the office so long or under
such circumstances as to raise a presumption of his right; in which
cases his necessary official acts are valid as to the public andthird persons; but he may be ousted by a direct proceeding.” Id.
Finally, “[a] usurper is one who undertakes to act officially
without any actual or apparent authority. Since he is not an
officer at all or for any purpose, his acts are absolutely void,
and can be impeached at any time in any proceeding.” In re
Wingler, 231 N.C. at 564, 58 S.E.2d at 375.
As noted above, Judge Bailey was defeated in the November 2000
general elections by William Stewart. Judge Stewart was sworn in
as a judge to serve in former Judge Bailey's District Court Judge
seat on 4 December 2000. Consequently, when she signed the
adjudication and disposition order on 16 January 2001, Judge Bailey
was no longer an elected judicial official. Judge Bailey, having
suffered defeat in the general election for office of District
Court Judge and having vacated and surrendered office to another
candidate receiving a majority of votes without contesting his
right to office, had no rights under statute or case law to
reassume office. See Duncan v. Beach, 294 N.C. 713, 721, 242
S.E.2d 796, 801 (1978).
We conclude that Judge Bailey is an usurper here. Since Judge
Bailey was no longer a judicial officer after her term expired, the
adjudication and disposition order entered on 16 January 2001 is
absolutely void. “Since entry of judgment is jurisdictional this
Court is without authority to entertain an appeal where there has
been no entry of judgment.” Searles v. Searles, 100 N.C. App. 723,
725, 398 S.E.2d 55, 56 (1990). Having no effective judgment for
purposes of this appeal, we conclude that this action has beenpending since the filing of the juvenile petition on 16 October
2000.
Pursuant to the currently effective version of Rule 63,
applicable to actions pending on or after 18 August 2001,
[i]f by reason of death, sickness or other
disability, resignation, retirement,
expiration of term, removal from office, or
other reason, a judge before whom an action
has been tried or a hearing has been held is
unable to perform the duties to be performed
by the court under these rules after a verdict
is returned or a trial or hearing is otherwise
concluded, then those duties, including entry
of judgment, may be performed:
. . . .
(2) In actions in the district court, by the
chief judge of the district, or if the chief
judge is disabled, by any judge of the
district court designated by the Director of
the Administrative Office of the Courts.
If the substituted judge is satisfied that he
or she cannot perform those duties because the
judge did not preside at the trial or hearing
or for any other reason, the judge may, in the
judge's discretion, grant a new trial or
hearing.
G.S. § 1A-1, Rule 63 (emphasis added); see also 2001 N.C. Sess.
Laws ch. 379, §§ 7, 9. Accordingly, we remand to the trial court
to enter an order or exercise its discretion in this matter
consistent with Rule 63.
In sum, we vacate the adjudication and disposition order of 16
January 2001 and remand to the trial court for either entry of an
order or exercise of its discretion consistent with Rule 63.
Vacated and remanded.
Judges McGEE and TYSON concur.
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