Appeal by plaintiff from order entered 30 November 1999 by
Chief Judge James W. Morgan in Cleveland County District Court.
Heard in the Court of Appeals 20 February 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General Gerald K. Robbins and Associate Attorney General
Brenda Eaddy, for plaintiff appellant.
Horn, Pack & Brown, P.A., by Becky J. Brown, for defendant
appellee.
McCULLOUGH, Judge.
Two minor children were born to the marriage of plaintiff
Linda Rutledge (now, Ratteree) and defendant Gerald Hamlett.
Following their separation, plaintiff and defendant reached an
agreement whereby plaintiff received custody of the two children.
Defendant had reasonable visitation rights with the children and
agreed to pay $450.00 each month for their support beginning 15
October 1984. The Family Court for York County, South Carolina
(Family Court), granted a divorce to the parties by decree filed 9
October 1984, which incorporated the parties' agreement. By Order
filed 20 July 1989, the Family Court granted the motion of theSouth Carolina Department of Social Services to restore the case to
active status and to require defendant to resume making child
support payments as previously ordered; the matter of defendant's
arrearage was held in abeyance.
Following the entry of the 20 July 1989 order, defendant moved
to Cleveland County, North Carolina. The following year, the South
Carolina Department of Social Services made a request on behalf of
plaintiff that the 20 July 1989 order be registered in North
Carolina pursuant to the provisions of the Uniform Reciprocal
Enforcement of Support Act (URESA). Defendant was notified of the
request for registration and was represented by counsel at a
hearing on the request. By order filed on 4 December 1990, a
District Court Judge in Cleveland County ordered that the South
Carolina order of 20 July 1989 be registered and that defendant pay
the ordered amount of $450.00 per month beginning 15 December 1990.
Defendant moved the Cleveland County District Court for a reduction
in his child support obligation based on a change in his financial
condition. That motion was granted by order entered on 30 January
1991 by District Court Judge James W. Morgan, whose order reduced
defendant's child support obligation to $70.00 per week, and
reduced his arrearage since the order was registered in North
Carolina to $285.00. By Order filed 22 May 1991, Judge Morgan
reduced defendant's support obligation to $40.00 per week, plus
$5.00 per week on his arrearages. There were no appeals or requests
to reconsider either of Judge Morgan's orders.
By letter dated 30 September 1996, an agent of the Paternity
and Support Unit of the Cleveland County Department of SocialServices notified Child Support Enforcement in South Carolina and
plaintiff that it was closing the child support case because the
parties' younger child had become eighteen years old, and defendant
had paid all arrearages. Plaintiff notified defendant that he
still owed a child support arrearage, and the South Carolina Family
Court ordered defendant's wages withheld to satisfy his child
support obligation and arrearage. Defendant responded that both
children had reached the age of majority, and that he owed no
arrearage in his support obligation.
The South Carolina Family Court concluded that North Carolina
had "effectively modified" the 20 July 1989 South Carolina order,
and that defendant had satisfied his obligation under the North
Carolina order. On appeal, the South Carolina Court of Appeals held
that the South Carolina Code
clearly provides that a support order made by
a court of this State is not nullified by a
support order made by a court of another state
unless specifically provided by the court. In
this case, neither of the North Carolina
orders specifically nullified the original
South Carolina order. Section 20-7-1110
permits the existence of multiple support
orders while requiring an obligor's payments
be credited against amounts accruing under
other orders.
Ratteree v. Hamlett, 330 S.C. 321, 325, 498 S.E.2d 888, 890 (1998).
Accordingly, the South Carolina Court of Appeals reversed the order
of the Family Court and remanded the case for a determination of
defendant's accrued arrearage under the South Carolina order. Id.
at 326, 498 S.E.2d at 891.
Defendant then filed a motion in the Cleveland County District
Court pursuant to Rule 60(a) of the North Carolina Rules of CivilProcedure, asking that the Court correct its order of 30 January
1991 by adding a paragraph specifically nullifying the South
Carolina judgment to the decretal portion of the order. By order
entered 30 November 1999, Chief District Court Judge Morgan found
that he intended to modify and nullify the South Carolina order in
his order entered in 1991, and that his failure to use specific
language accomplishing that purpose was a "clerical error." Judge
Morgan concluded that his January 1991 order should be corrected,
and amended it by completely rewriting the first paragraph of the
decretal portion of his order to provide that "the South Carolina
Order is specifically nullified . . . ." Plaintiff appealed,
assigning errors.
Plaintiff contends that the trial court's purported
modification of its order entered nine years earlier did not
correct a "clerical error," but substantially changed the earlier
order, thereby prejudicially affecting her rights under the South
Carolina child support order. We agree and vacate the order of the
trial court.
Rule 60 of the North Carolina Rules of Civil Procedure is
entitled "Relief from judgment or order." N.C. Gen. Stat. § 1A-1,
Rule 60 (1999). Rule 60(a) allows a court to correct clerical
errors in a judgment or order at any time, stating in pertinent
part that:
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.
Id. This Court has consistently held that Rule 60(a) applies to
clerical omissions or errors only, and may not be used to change
the substantive rights of the parties. Hinson v. Hinson, 78 N.C.
App. 613, 615, 337 S.E.2d 663, 664 (1985), disc. review denied, 316
N.C. 377, 342 S.E.2d 895 (1986); Insurance Co. v. Johnson, 41 N.C.
App. 299, 301, 254 S.E.2d 643, 644 (1979); Snell v. Board of
Education, 29 N.C. App. 31, 33, 222 S.E.2d 756, 757 (1976).
In Hinson, plaintiff-wife sought a divorce from bed and board,
custody, alimony and child support. She and defendant-husband
entered into a consent judgment whereby plaintiff received
exclusive possession of the marital residence, assuming all
liability under the judgment for the mortgage, tax, insurance, and
other payments arising on the property. The judgment further
provided that "[u]pon a sale of said residence, the proceeds shall
be divided equally by the parties." Hinson, 78 N.C. App. at 614,
337 S.E.2d at 663. Two years later, plaintiff filed a motion
pursuant to Rule 60(a), seeking a correction to the judgment. She
alleged that "the judgment should have provided that she be
responsible for payments on the mortgage only while she resided in
the house and that the sale proceeds should be divided equally
after payment of the existing mortgage indebtedness." Id. at 614-
15, 337 S.E.2d at 663. Otherwise, argued plaintiff, she could be
forced to pay the entire mortgage indebtedness out of her share of
the sale price. The trial court agreed that the oversight had been
a clerical error and entered an order under Rule 60(a), adding thelanguage "for so long as plaintiff continues to reside in the
marital residence" following the name of the mortgage lender in the
section where plaintiff's debts were listed, and inserting the word
"net" before the word "proceeds" in the quoted sentence.
On appeal, this Court stated that "[w]e have repeatedly
rejected attempts to change the substantive provisions of judgments
under the guise of clerical error" and determined that "[t]he
relief granted . . . here clearly was substantive in nature and
therefore not available under Rule 60(a)." Id. at 616, 337 S.E.2d
at 664. Accordingly, the Court held that the trial court was
without authority under Rule 60(a) to enter the order.
Here, the trial court substantially altered its earlier 30
January 1991 order, which provided in pertinent part:
That the defendant's support obligation be and
is hereby reduced and the defendant is ordered
to pay into the Office of the Clerk of
Superior Court of Cleveland County the sum of
$70.00 per week for the use and benefit of his
minor children, with the first payment to be
made on or before Friday, February 1, 1991,
and a like payment each and every week
thereafter until further Order of the Court.
The trial court's amended order entered 30 November 1999 reads:
That the Defendant's support obligation be and
is hereby reduced, that the South Carolina
Order is specifically nullified, and Defendant
is ordered to pay into the Office of the Clerk
of Superior Court of Cleveland County the sum
of $70.00 per week for the use and benefit of
his minor children, with the first payment to
be made on or before Friday, February 1, 1991,
and a like payment each and every week
thereafter until further order of the Court.
(Emphasis added.)
The trial court's amendment, rather than merely correcting aclerical error, clearly and substantially altered its e
arlier
order. Further, the change by the trial court prejudiced the
rights of plaintiff to receive the amount of child support ordered
by the South Carolina Court by effectively reducing the amount of
that arrearage to zero. See Buncombe County, ex rel. Andres v.
Newburn, 111 N.C. App. 822, 827, 433 S.E.2d 782, 785, disc. review
denied, 335 N.C. 236, 439 S.E.2d 143 (1993) (vacating an order
amended under Rule 60(a) because the revisions impermissibly
affected plaintiff's substantive rights to receive child support
arrearages under a foreign consent judgment). We hold that the
trial court was without authority under Rule 60(a) to enter such an
order. Since the order was beyond the authority of the trial
court, it is hereby
Vacated.
Judges GREENE and HUDSON concur.
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