Child Custody, Support, and Visitation; Civil Procedure--Rule 60(b)(6)--motion to amend
effect of order--motion for relief from order
The trial court erred by granting a motion to amend the parties' child custody order pursuant to
N.C. G.S. § 1A-1, Rule 60(b)(6), and the original custody order of 28 November 2001 remains in
effect, because: (1) Rule 60(b)(6) allows a trial court to grant relief from a judgment or order for
any other reason justifying relief from the operation of the judgment; (2) rather than seeking to be
relieved of the effect of the 28 November 2001 custody order, plaintiff sought to amend the effect
of that order to reduce defendant's weeknight visitation privilege; and (3) by the terms of the trial
court's Order Allowing Amendment to Custody Order, the trial court amended the decretal
portion of the 28 November 2001 order, rather than relieving the plaintiff of its provisions.
No brief filed for plaintiff-appellee.
Virginia R. Hager for defendant-appellant.
MARTIN, Chief Judge.
On 28 November 2001 the trial court entered a written custody
order granting plaintiff primary custody, and defendant visitation,
of the couple's then two-year-old child. The order also
established a visitation schedule, including, inter alia, the
provision at issue in this appeal:
Weekday Visitation: Plaintiff shall transport
the minor child to Defendant's house at 6:00
p.m. each Wednesday and Defendant shall
exercise visitation that night and return the
child to day care on Thursday morning.
On 23 August 2004, defendant filed a motion to show cause,
alleging, among other things, that plaintiff violated the existing
custody order by denying defendant her Wednesday night visitation
on 18 August 2004, and notifying her of his intent “to stop the
Wednesday overnight visits because the child had begun
Kindergarten.” In response to defendant's motion, plaintiff filed
a “Motion To Amend Order” seeking to amend the 28 November 2001
order to comply with the trial court's oral decree made at the 5
November hearing. At the conclusion of that hearing, the trial
court stated, “I'm going to follow the same visitation schedule as
is set out in the temporary custody order, with a couple of
exceptions. I'm going to add one overnight during the week until
the child starts kindergarten . . . .” The trial court then
instructed plaintiff's counsel to “draw it and show it to”
defendant's counsel. However, the written custody order, as
prepared by plaintiff's counsel, contained no language concerning
cessation of the weeknight overnights when the child began
kindergarten.
Plaintiff's motion was heard 10 September 2004. The trial
court allowed the motion, citing N.C. Gen. Stat. § 1A-1, Rule
60(b)(6), and amended the order to provide that defendant would be
allowed visitation on Wednesday nights from 5:30 p.m. to 8:00 p.m.,
rather than overnight. Defendant appeals.
Defendant argues the trial court erred by granting the motion
to amend the custody order pursuant to N.C. Gen. Stat. § 1A-1, Rule
60(b)(6) (2003). We agree. Plaintiff's “Motion To Amend [the 28 November 2001] Order” did
not specify the rule of Civil Procedure under which he sought
relief. See Home Health and Hospice Care, Inc. v. Meyer, 88 N.C.
App. 257, 262, 362 S.E.2d 870, 872 (1987) (while failure to give
rule number pursuant to which motion is made is not fatal, to do so
would be of great benefit to both trial and appellate courts).
Thus, we must first determine whether the relief sought by
plaintiff was available under any rule.
N.C. Gen. Stat. § 1A-1, Rule 59(e) (2003) permits the
amendment of final judgments or orders upon motion filed within 10
days after entry of the judgment or order sought to be amended.
Since plaintiff's motion was not filed for nearly three years after
entry of the 28 November 2001 order, relief was not available under
Rule 59.
N.C. Gen. Stat. § 1A-1, Rule 60(a) provides for the correction
of clerical errors by the trial court at any time. However, the
trial court has no authority, under the guise of correction of a
clerical error, to make modifications to an order or judgment which
affect the substantive rights of any party. Spencer v. Spencer,
156 N.C. App. 1, 11, 575 S.E.2d 780, 786 (2003); 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)
(amending written order to add findings announced in open court was
more than correction of a clerical error, because it affected the
parties' substantive rights). Thus, although plaintiff's motion was captioned as one to
“amend” the 28 November 2001 order, the motion to amend was not
timely under Rule 59, and there was no clerical error to be
corrected under Rule 60(a). Therefore, the trial court treated it
as a motion for relief from that order pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 60(b)(6). In so doing, the trial court misconstrued
Rule 60(b)(6), which allows a trial court to grant relief from a
judgment or order for “[a]ny other reason justifying relief from
the operation of the judgment.” N.C. Gen. Stat. § 1A-1, Rule
60(b)(6).
Here, rather than seeking to be relieved of the effect of the
28 November 2001 custody order, plaintiff sought to amend the
effect of that order to reduce defendant's weeknight visitation
privilege. By the terms of the trial court's “Order Allowing
Amendment to Custody Order,” the trial court “amended” the decretal
portion of the 28 November 2001 order, rather than relieving the
plaintiff of its provisions. See White v. White, 152 N.C. App.
588, 592, 568 S.E.2d 283, 285 (2002), aff'd, 357 N.C. 153, 579
S.E.2d 248 (2003) (affirming trial court's denial of a Rule 60(b)
motion which did not seek relief, but expressly requested “a
modification or an amendment” of the prior order). The trial court
erred in considering the motion as one for relief made under Rule
60(b)(6) and in granting it. Coleman v. Arnette, 48 N.C. App. 733,
735, 269 S.E.2d 755, 756 (1980). The “Order Allowing Amendment to
Custody Order” is vacated and the original custody order of 28November 2001 remains in effect. In view of our holding, we need
not address defendant's remaining arguments.
Vacated.
Judges HUNTER and STEELMAN concur.
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