An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1409

NORTH CAROLINA COURT OF APPEALS

Filed: 6 September 2005

FRANCES HOGAN HARRIS,
    Plaintiff,

v .                         Nash County
                            No. 00 CVD 369
ROGER EUGENE HARRIS,
    Defendant.

    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 In an unpublished opinion, this Court determined that the trial court failed to make the sufficient and specific findings necessary to support its judgment and order, vacated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 Harris v. Harris, 157 N.C. App. 364, 578 S.E.2d 710 (2003) (unpublished) (“Harris I”).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).

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    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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