Rule 60 Case | Interlocutory Case | Contempt Case

Jackson V. Jackson (now Clelland): Rule 60 v. Appeal

Sampson County – 2020

Tldr: Don’t use Rule 60 to correct erroneous orders. Appeal instead; otherwise, you’ll lose.

Mom and Dad had a custody trial. The trial court ordered that:

Plaintiff shall reimburse Defendant for travel to and from preschool and school and shall receive a credit for any trips he has to make to Fayetteville for custody exchanges and return at the same rate of reimbursement. The reimbursement rate shall be the rate given to State Employees for travel and the mileage will be from [an address] Street to the preschool or school or lesser mileage if Defendant moves her residence closer to the schools.”

Dad didn’t appeal. Dad didn’t pay for travel after the Order.

Mom filed a Show Cause for Contempt 8 months later. Dad filed a Motion for Relief from Order, stating that no evidence of either parties’ incomes or the cost of sending the child to school was presented. Dad asked for relief from the child support provisions pursuant to Rule 60(b)(1) as a mistake. In the alternative, Dad asked for relief because there are no findings of income or cost of these items.

Based upon these motions, the trial court set aside their own order and entered a new one without any travel reimbursement. This new Rule 60(b) Order was entered without any evidence. Mom asked for a new trial, which was denied. Mom appealed (timely).

The Court of Appeals said that Dad’s Motion describes a legal error, rather than an irregularity or “mistake.” The “legal error” was the lack of findings of fact or evidence to support the conclusions of law and decree. Therefore, the trial court’s “remedy” of the Rule 60(b) order is improper. Therefore, the original Order stands, and the case was remanded.

Don’t use Rule 60 to correct legal problems with an order. Appeal instead.

Hopkins v. Hopkins: Interlocutory Orders

Mecklenburg County – 2020

In Louisiana in 2000, Mom and Dad enter into a Consent Order for joint custody for their two children. In 2010, Dad files a Petition for Registration of Child Custody Order in Mecklenburg County. Mom files her own petition the next day, but for Union County.

In Mecklenburg County two weeks later, Dad files a Motion to Modify Child Custody and Child Support, and for Attorneys’ Fees, as well as for Emergency and Temporary Custody. Mecklenburg County granted an Ex Parte Order for temporary custody to Dad. The Ex Parte Order also determined that the other pending matters of child support and custody should be consolidated. Two months later, Union County enters an Order transferring their case to Mecklenburg County.

A trial was held in October 2010. A Temporary Order was entered in May 2011 granting Dad temporary custody. Dad filed a Motion for Temporary and Permanent Child Support two weeks later, seeking to modify the Louisiana Order. Dad then took a voluntary dismissal without prejudice of his Motion for Temporary Child Support.

Six years later, Mom filed a new Notice of Registration of Foreign Support Order in Mecklenburg County and a Motion to Confirm Registration for Foreign Child Support Order. The parties entered into an MOJ and stipulated the Louisiana Order would be confirmed as registered in North Carolina.

A trial started in February 2018. The court gave the parties additional days to hear the trial. Dad and his lawyer appeared in June, but nothing was heard. In November 2018, the trial court entered an order for arrears of $154,000 owed by Dad. Dad was served with the order 22 days later, and Dad filed a Motion for New Trial and to Set Aside. Dad claimed the court erroneously found he dismissed his Permanent Child Support motion, and that Mom had submitted a proposed order and never informed Dad.

May 2019: The Order granted Rule 59 and Order setting aside the November 2018 Order is entered. Mom appealed the Order granting new trial.

Ruling:

Mom appealed an interlocutory Order (the May 2019 Order granting new trial). Mom also did not allege N.C.G.S. Section 7A-27(b)(3)(d) as grounds for review. Mom alleges no argument that the trial court erred in setting aside the arrearages. Instead, Mom alleges that the trial court never had authority to enter a Temporary Custody order in 2011! However, both children have reached the age of majority, so that argument is moot.

Finally, Mom argues the trial court couldn’t modify support arrears that had already been ordered in its November 2018 Order. This November 2018 Order, however, is not a “final order” because the trial court set it aside. Therefore, the appeal is dismissed as interlocutory.

Robinson v. Robinson: (Unpublished) Contempt

Durham County – 2020

Wife appeals from an Order holding ex-Husband in Contempt (you read that correctly!) and imposing purge conditions. Wife claims the purge conditions modify the terms of the underlying Order.

The trial court, in three separate documents, ordered Husband to:

Comply with Discovery, participate in mediation and award attorneys fees, (A)
Pay attorneys fees based upon the Order to Compel of $1,774.64 at $443.66/month (B)
Pay attorneys fees in a child custody claim of $12,000 at $334/month (C).

The court also entered a Consent Judgment for ED, which required Dad to pay a distributive award of $3,730.23 at $932.58 per quarter beginning in April 2019 (D). After three months, Mom filed a Motion for Contempt for Dad’s failure to pay towards two of the attorneys’ fees orders. Two months later, Mom filed a Motion for Contempt for Dad’s failure to pay on the ED Order.

The trial court found Dad in contempt of one attorney’s fee order and the ED Order, but that Dad didn’t have the ability to comply with the third order. The purge was a payment to be made within 30 days to these two orders, as follows:

(B) installments were changed to $200/month
(C) installments were changed to $200/month
(D) purge was $932.58 applied to the 6/15 payment (skipping the April payment due)

The Court of Appeals said:

Normally, it’s only the person held in contempt who can appeal.
However, if the purge conditions resulted in modification of an Order, Mom is an “aggrieved party” under 1-277 and entitled to appeal.
Generally, A Consent Judgment cannot be modified or set aside except by Agreement.
The Judge’s order on contempt regarding ED impermissibly modified the Consent Order, or the Order was impermissibly vague.
Regarding (B), this Contempt order did not modify the payment schedule, because at that point, 100% of the payments were already due. Therefore, this is just a regular purge condition. The only error is the trial court did not put in an “end date” and “final amount of last payment” owed.
Regarding (C), since the trial court did not find Husband in contempt, this is an impermissible modification of the Order to change the payments to $200/month. This doesn’t become a purge condition because no contempt was ordered.

VACATED and REMANDED.

September 30, 2020/by FamilyLaw