NO. COA04-1409
Appeal by plaintiff from judgment entered 14 July 2004 by
Judge John M. Britt and judgment entered 11 August 2004 by Judge
Joseph John Harper in Nash County District Court. Heard in the
Court of Appeals 19 May 2005.
W. Michael Spivey for plaintiff-appellant.
Roger Eugene Harris, pro se, defendant-appellee.
TIMMONS-GOODSON, Judge.
Frances Hogan Harris (“plaintiff”) appeals the trial court
judgment granting Roger Eugene Harris' (“defendant”) motion for
relief pursuant to Rule 60(a) of the Rules of Civil Procedure.
Plaintiff also appeals the trial court's dismissal of plaintiff's
motion for civil contempt for lack of subject matter jurisdiction.
For the reasons stated herein, we affirm the trial court's order
dismissing the motion for civil contempt and reverse the ordergranting relief pursuant to Rule 60.
The pertinent facts of the case are as follows: Plaintiff and
defendant were married on 14 July 1982 and separated on 30 January
2000. On 25 February 2000, plaintiff filed a complaint against
defendant, seeking, inter alia, postseparation support, alimony and
equitable distribution. On 7 March 2000, defendant filed an answer
and counterclaim for child custody and equitable distribution. On
16 January 2001, the trial court entered an order awarding
plaintiff postseparation support of $2,000.00 per month beginning
10 September 2000. On 21 September 2001, the trial court entered
a judgment and order awarding plaintiff $1,100.00 per month in
permanent alimony and awarding an equal share of the marital
property to each party.
Plaintiff appealed. In an unpublished
opinion, this Court determined that the trial court failed to make
the sufficient and specific findings necessary to support its
judgment and order, vacated the judgment and order, and remanded
the case to the trial court with instructions to make those
“further findings as required by law.” Harris v. Harris, 157 N.C.
App. 364, 578 S.E.2d 710 (2003) (unpublished) (“Harris I”).
On remand, the trial court did not take new evidence or hear
further argument from the parties. On 3 December 2003, the trial
court entered a second judgment and order in the case, again
awarding plaintiff $1,100.00 per month in permanent alimony, againawarding an equal share of the marital property to each party, and
again denying plaintiff's motion for attorney's fees. Plaintiff
appealed the judgment (“Harris II”).
On 15 February 2004, while Harris II was pending before this
Court, plaintiff filed a motion for civil contempt and wage
withholding alleging defendant was in arrears in postseparation
support. Defendant moved to dismiss the motion. On 17 June 2004,
defendant filed a motion for relief from the trial court's alimony
judgment of 3 December 2003 pursuant to Rule 60(a) or, in the
alternative, Rule 60(b) of the North Carolina Rules of Civil
Procedure. The trial court entered an order on 14 July 2004
granting defendant's Rule 60 motion. On 11 August 2004, the trial
court dismissed plaintiff's motion for civil contempt on the ground
the court lacked jurisdiction. It is from these judgments and
orders that plaintiff appeals.
During the pendency of this appeal, on 17 May 2005, this Court
affirmed the trial court's order and judgment for alimony in Harris
II. Harris v. Harris, __ N.C. App. ___, 613 S.E.2d 752 (2005)
(unpublished).
The issues on appeal are: (I) whether the trial court erred in
granting defendant's Rule 60 motion to modify the court's alimony
judgment of 3 December 2003; (II) whether the trial court erred inruling that it lacked jurisdiction to hear plaintiff's motion for
contempt; and (III) whether postseparation support continues in
force pending the appeal of an alimony order.
Plaintiff first argues the trial court erred in granting
defendant's Rule 60 motion. Specifically, plaintiff contends the
trial court lacked jurisdiction to hear defendant's motion. We
agree.
In the instant case, defendant moved the trial court
pursuant to Rule 60(a) or in the alternative
Rule 60(b) to correct the Judgment and Order
entered on December 3, 2003 so as to include
the necessary language to award permanent
alimony to plaintiff in the amount of
$1,100.00 per month per the terms and
conditions contained in said Judgment and
Order retroactive to July 3, 2001, the date of
the original alimony award.
Rule 60(a) of the North Carolina Rules of Civil Procedure provides:
(a) Clerical mistakes. -- 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 judge orders. During the
pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the
appellate division,
and thereafter while the
appeal is pending may be so corrected with
leave of the appellate division.
N.C. Gen. Stat. § 1A-1, Rule 60 (2003) (emphasis added). Rule 60(a)
“permits the trial court to correct clerical mistakes . . . whilethe appeal is pending with leave of the appellate court . . . .”
Sink v. Easter, 288 N.C. 183, 199, 217 S.E.2d 532, 542 (1975).
Rule 60(b) provides in pertinent part: “ On motion and upon
such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding
for . . . (1) Mistake, inadvertence, surprise, or excusable
neglect[.]” N.C. Gen. Stat. § 1A-A, Rule 60. “There is authority
. . . for the proposition that the trial court retains limited
jurisdiction, after an appeal has been taken, to hear and consider
a Rule 60(b) motion . . . .”
Bell v. Martin, 43 N.C. App. 134,
140, 258 S.E.2d 403, 408 (1979)
.
This Court has held the trial
court has jurisdiction during the pendency of an appeal to consider
a Rule 60(b) motion “for the limited purpose of indicating, by a
proper entry in the record, how it would be inclined to rule on the
motion were the appeal not pending.”
Bell, 43 N.C. App. at 142,
258 S.E.2d at 409.
In the instant case, the trial court order granting
defendant's Rule 60 motion contains the following language:
[I]t is hereby ORDERED that the relief
requested in defendant's Motion for Relief
from Judgment filed in this action shall be
and hereby is granted to the extent that is
necessary to correct or clarify the record on
appeal to reflect that it was this Court's
intention that the December 3, 2003 Judgment
and Order entered in this action be
nunc pro
tunc to the original Judgment and Orderentered on July 3, 2001 and to forecast for
the benefit of the Court of Appeals that
action that shall be taken to correct or
clarify said Judgment and Order in the event
that same is upheld on appeal.
The language indicates the trial court granted defendant's motion
pursuant to Rule 60(b); however, that is inconsistent with the
trial court's express finding that its “failure to include the
terminology required to make the alimony award contained in its
December 3, 2003 Judgment and Order retroactive
was merely a
clerical omission[.]” (emphasis added). “Facts found by a judge in
this context are conclusive if there is any evidence on which to
base such findings.”
Carter v. Clowers, 102 N.C. App. 247, 253,
401 S.E.2d 662, 666 (1991).
The same trial judge made the finding
as entered the 3 December 2003 order.
Correction of clerical omissions in judgments and orders is
governed by Rule 60(a) of the Rules of Civil Procedure.
Rule 60(a)
specifically provides that while a judgment is on appeal, the trial
court lacks authority to correct clerical mistakes without first
obtaining leave of the appellate division. Neither defendant nor
the trial court sought leave of this Court to correct a clerical
mistake. Therefore we hold the trial court lacked jurisdiction to
consider defendant's Rule 60 motion.
Plaintiff next argues the trial court erred in ruling it
lacked jurisdiction to hear plaintiff's motion for civil contemptfor failure to pay postseparation support. Specifically, plaintiff
argues postseparation support is not affected by the 3 December
2003 judgment awarding plaintiff alimony. We disagree.
“It is the general rule in North Carolina that when an order
arising from a domestic case is appealed, the cause is taken out of
the jurisdiction of the trial court and put into the jurisdiction
of the appellate court.”
Traywick v. Traywick, 31 N.C. App. 363,
366, 229 S.E.2d 220, 221 (1976). Once an appeal is perfected, the
trial court “is thereafter without power to proceed further 'until
the cause is returned by mandate of the appellate court.'”
Id.
(quoting
Upton v. Upton, 14 N.C. App. 107, 109, 187 S.E.2d 387, 388
(1972)). Accordingly, section 1-294 of the North Carolina General
Statutes provides:
When an appeal is perfected as provided by
this Article it stays all further proceedings
in the court below upon the judgment appealed
from, or upon the matter embraced therein; but
the court below may proceed upon any other
matter included in the action and
not affected
by the judgment appealed from.
N.C. Gen. Stat. § 1-294 (2003) (emphasis added).
Section 50-16.1A(4) of the North Carolina General Statutes
provides that postseparation support terminates upon entry of an
order awarding alimony. “Postseparation support is only intended
to be temporary and ceases when an award of alimony is either
allowed or denied by the trial court.”
Rowe v. Rowe, 131 N.C. App.409, 411, 507 S.E.2d 317, 319 (1998).
In the instant case, an award of alimony was appealed and,
while the appeal was pending with this Court, plaintiff initiated
civil contempt proceedings for defendant's failure to pay
postseparation support. The alimony award affected postseparation
support.
Consequently, the trial court lacked jurisdiction to
consider the motion for civil contempt for failure to pay
postseparation support while the alimony judgment was before this
Court on appeal. We conclude, therefore, the trial court did not
err in ruling it lacked jurisdiction to hear plaintiff's motion for
civil contempt.
Next, we consider whether the order for postseparation support
entered 16 January 2001 continued in force during the pendency of
the appeal of the alimony award.
Plaintiff contends that since
this Court, in
Harris I, vacated the alimony order making it null
and void, the postseparation support order remained in force. We
disagree.
By definition, “vacate” means “to annul; to set aside; to
cancel or rescind. To render an act void . . . .” Black's Law
Dictionary 1548 (6th ed. 1990).
An order awarding alimony has the
effect of terminating postseparation support. N.C. Gen. Stat. §
50-16.1A(4) (2003);
See Wells v. Wells, 132 N.C. App. 401, 512
S.E.2d 468 (1999).
In the instant case, an order for alimony was entered 21
September 2001 which effectively terminated the order for
postseparation support. When this Court vacated the alimony order
nineteen months later it had the effect of rendering the judgment
for alimony entered 21 September 2001 void.
Friend-Novorska v.
Novorska, 143 N.C. App. 387, 393, 545 S.E.2d 788, 793 (2001).
Yet, the postseparation support order terminated on July 15, 2001,
prior to this Court vacating the alimony order. We hold the
postseparation support order does not continue in force during the
pendency of an appeal of an alimony award. To hold otherwise would
subject a supporting spouse to liability for both postseparation
support and alimony during the pendency of the appeal and during
remand. The better course of action would require the dependant
spouse to initiate some action in the trial court such as the
filing of a motion in the cause while the matter is on remand.
Affirmed in part; reversed in part.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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