Jackson v. Jackson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-259

Filed: 1 September 2020

Sampson County, No. 16 CVD 97

BRENTLEY ALLEN JACKSON, Plaintiff,

v.

KELLIE LYNN JACKSON (Now CLELLAND), Defendant.

Appeal by Defendant from orders entered 31 August 2018 and 10 October 2018

by Judge William B. Sutton, Jr. in Sampson County District Court. Heard in the

Court of Appeals 4 September 2019.

Benjamin Lee Wright for plaintiff-appellee.

Gregory T. Griffin for defendant-appellant.

MURPHY, Judge.

Rule 60 is an improper method to remedy erroneous orders, which are properly

addressed only by timely appeal. As a result, the trial court erred when it entered a

Rule 60(b) order to relieve Plaintiff from the provisions of its prior custody order that,

as theorized by the Rule 60(b) findings of fact, erroneously contained child support

obligations. We vacate and remand.

BACKGROUND

On 29 January 2016, Plaintiff-Appellee Brentley Allen Jackson (“Plaintiff”)

filed his Complaint for Divorce from Bed and Board, Child Custody, and Child

JACKSON V. JACKSON

Opinion of the Court

Support. Defendant-Appellant Kellie Lynn Jackson (now Clelland; “Defendant”)

timely answered and counterclaimed, and a hearing was held on the issue of custody

on 3-4 August 2017. As a result of the hearing, a custody order (“the Custody Order”)

was entered by the trial court on 5 September 2017. The Custody Order decreed, in

relevant part:

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 118 Hay

Street to the preschool or school or lesser mileage if

Defendant moves her residence closer to the schools.

Plaintiff pursued no appeal from the Custody Order. Nor did Plaintiff pay

Defendant for her travel in accordance with the Custody Order.

Eight months later, in June 2018, Defendant filed a Motion to Show Cause

requesting that Plaintiff be held in civil contempt for violating the payment provision

of the Custody Order. Plaintiff responded with a Motion for Relief from Order and/or

Modification of Order, which asked the trial court to void the provision of the Custody

Order requiring him to pay travel expenses. In relevant part, Plaintiff’s motion

argued:

5. That at the hearing on [3-4 August 2017] neither the

Plaintiff nor the Defendant offered evidence as to their

respective incomes nor the cost of sending the minor child

to Grace Preschool.

...

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Opinion of the Court

WHEREFORE, the Plaintiff prays the Court as follows:

1. That the Plaintiff be relieved of the child support

provisions of the [Custody Order] pursuant to Rule 60(b)(1)

in that the provisions concerning reimbursement and

payment of daycare amount to a child support order and

were entered by mistake in that the Court did not have

facts in evidence to support a child support award because

neither party offered evidence on the issue.

...

3. That in the alternative, the Plaintiff be relieved of the

provisions of the [Custody Order] pursuant to Rule 60(b)(6)

in that there are no findings of fact regarding the incomes

of the parties in said order, the cost of pre-school and health

insurance and the provisions concerning reimbursement

and payment of daycare are not supported by evidence and

Plaintiff has a meritorious defense to the entry of such

provisions and his rights have been injuriously affected by

the [Custody] Order.

The following week, Defendant moved to dismiss Plaintiff’s motion.

On 13 August 2018, the trial court heard Plaintiff’s motion and entered an

order (“the Rule 60(b) Order”) stating in relevant part:

FINDINGS OF FACT

1. This action was tried before the Court on [3 and 4 August

2017] and [the Custody] Order was entered on [5

September 2017].

2. That the Court required the Plaintiff to pay the cost of

preschool and school and reimburse the Defendant for

travel to and from preschool and school, receive a credit for

any trips he made to Fayetteville, North Carolina for

custody exchanges and gave reimbursement to Defendant

at the rate given to state employees for travel and the

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Opinion of the Court

mileage for 118 Hay Street, Fayetteville, North Carolina to

the school the child attended.

3. That the Court did made no [sic] findings as to the

income of the Plaintiff or the Defendant in [the Custody]

Order, nor did it make findings as to the cost of preschool

and school, or health insurance for the minor child and no

evidence was presented on those issues by either parties

[sic].

4. That the [Custody] Order requiring the Plaintiff to

reimburse the Defendant for travel cost is not supported by

findings of fact.

5. That the Court therefore, is setting aside [the Custody

Order] and substituting therefore the order set forth herein

in lieu thereof.

CONCLUSIONS OF LAW

1. That the [Custody] Order of [5 September 2017] should

be set aside and an appropriate Order substituted

therefore based upon the Court’s findings, pursuant to:

a. Rule 60(b)(5) in that it is no longer equitable that the

[Custody] Order should have prospective application; and

b. Rule 60(b)(6) in that the [Custody O]rder is irregular

because it did not make findings as to the parties incomes

[sic], cost of insurance and daycare and ordered the

Plaintiff to make reimbursements to Defendant without

determining the parties[‘] ability to pay.

2. That the rights of the Movant have been injuriously

affected and the movant [sic] has shown a meritorious

defense.

3. That the Defendant’s Motion for Contempt against the

Defendant [sic] has been rendered moot and therefore her

motion for contempt should be dismissed.

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Opinion of the Court

IT IS THEREFORE ORDERED, ADJUDGED, AND

DECREED:

1. That the [Custody] Order entered in this cause on [5

September 2017] is set aside and the Court is substituting

therefore the following Order: . . .

The Rule 60(b) Order is almost identical to the Custody Order, but omits the

section about travel reimbursement, and was entered without an additional

evidentiary hearing.

In response to the Rule 60(b) Order, Defendant moved for a new trial, arguing

the trial court lacked authority to issue a new custody order without making new

findings or conducting a new evidentiary hearing. On 10 October 2018, the trial court

denied Defendant’s Motion for New Trial, and Defendant filed timely notice of appeal.

ANALYSIS

Rule 60(b) states in relevant part:

(b) . . . 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 the following reasons:

(5) . . . it is no longer equitable that the judgment should

have prospective application; or

(6) Any other reason justifying relief from the operation of

the judgment.

The motion shall be made within a reasonable time . . . . A

motion under this section does not affect the finality of a

judgment or suspend its operation. This rule does not limit

the power of a court to entertain an independent action to

relieve a party from a judgment, order, or proceeding, or to

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Opinion of the Court

set aside a judgment for fraud upon the court. The

procedure for obtaining any relief from a judgment, order,

or proceeding shall be by motion as prescribed in these

rules or by an independent action.

N.C.G.S. § 1A-1, Rule 60(b)(5)-(6) (2019).

“[A] motion under [N.C.]G.S. [§] 1A-1, Rule 60(b) of the Rules of Civil Procedure

cannot be used as a substitute for appellate review.” Town of Sylva v. Gibson, 51 N.C.

App. 545, 548, 277 S.E.2d 115, 117 (1981) (citing O'Neill v. Bank, 40 N.C. App. 227,

231, 252 S.E.2d 231, 234 (1979); In re Snipes, 45 N.C. App. 79, 81, 262 S.E.2d 292,

294 (1980); 2 McIntosh, N.C. Practice and Procedure § 1720 (Supp. 1970)).1

“An erroneous judgment is one rendered contrary to law. . . . [It] must remain

and have effect until by appeal to a court of [appeals] it shall be reversed or modified.”

Young v. State Farm Mut. Auto. Ins. Co., 267 N.C. 339, 343, 148 S.E.2d 226, 229

(1966) (citing Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460) (emphasis omitted).

“An erroneous order is one ‘rendered according to the course and practice of the court,

but contrary to law, or upon a mistaken view of the law, or upon an erroneous

application of legal principles.’ . . . An erroneous order may be remedied by appeal;

1 Town of Sylva was specifically concerned with Rule 60(b)(6), which would render its more

general holding on Rule 60(b) dicta. However, we have adopted the broader rule applying to all of Rule

60(b) in later cases. See, e.g., McKyer v. McKyer, 182 N.C. App. 456, 642 S.E.2d 527, (2007); Smith v.

Johnson, 125 N.C. App. 603, 481 S.E.2d 415, (1997); Jenkins v. Middleton, 114 N.C. App. 799, 443

S.E.2d 110. (1994); Lang v. Lang, 108 N.C. App. 440, 424 S.E.2d 190, (1993); Chicopee, Inc. v. Sims

Metal Works, Inc., 98 N.C. App. 423, 391 S.E.2d 211, (1990); J. D. Dawson Co. v. Robertson Mktg., Inc.,

93 N.C. App. 62, 376 S.E.2d 254, (1989); Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557, (1986);

Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871, (1985). Therefore, we apply Town of Sylva’s

holding to both Rule 60(b)(5) and 60(b)(6) in this case.

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Opinion of the Court

it may not be attacked collaterally.” Daniels v. Montgomery Mut. Ins. Co., 320 N.C.

669, 676, 360 S.E.2d 772, 777, (1987) (quoting Wynne v. Conrad, 220 N.C. 355, 360,

17 S.E.2d 514, 518 (1941)).

Here, Plaintiff’s motion argued the trial court should relieve him of the child

support provisions because “there are no findings of fact regarding the income of the

parties in [the Custody Order], the cost of pre-school and health insurance and the

provisions concerning reimbursement and payment of daycare are not supported by

evidence” as “neither the Plaintiff nor the Defendant offered evidence as to their

respective incomes nor the cost of sending the minor child to Grace Preschool.” The

trial court’s Rule 60(b) Order cited Rule 60(b)(5) and Rule 60(b)(6) to relieve Plaintiff

from the child support provisions based on Finding of Fact 3, which states the trial

court “made no findings as to the income of the Plaintiff or the Defendant in [the

Custody Order], nor did it make findings as to the cost of preschool and school, or

health insurance for the minor child and no evidence was presented on those issues

by either parties [sic],” and Finding of Fact 4, which states “the [Custody] Order

requiring the Plaintiff to reimburse the Defendant for travel cost . . . [was] not

supported by findings of fact.”

Plaintiff’s 60(b) motion and the Rule 60(b) Order describe a legal error in the

Custody Order, rather than an irregularity. In Plaintiff’s 60(b) motion, he argues

there were no findings of fact, nor any facts in evidence, to support the child support

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Opinion of the Court

provisions of the Custody Order, and as a result he should be relieved of the

provisions related to child support. Similarly, the Rule 60(b) Order concludes the

child support provisions in the Custody Order are unsupported by findings of fact in

that order. The motion and order reflect that both Plaintiff and the trial court

believed the Custody Order was “rendered contrary to law.” Young, 267 N.C. at 343,

148 S.E.2d at 229. Thus, it was an erroneous order that could only be remedied by

appeal, not by Rule 60(b). Town of Sylva, 51 N.C. App. at 548, 277 S.E.2d at 117.

Although not explicit in Plaintiff’s Rule 60(b) motion or the Rule 60(b) Order,

we interpret the comments about the child support provisions being unsupported by

the evidence to be referring to N.C.G.S. § 50-13.4(c), which requires:

Payments ordered for the support of a minor child shall be

in such amount as to meet the reasonable needs of the child

for health, education, and maintenance, having due regard

to the estates, earnings, conditions, accustomed standard

of living of the child and the parties, the child care and

homemaker contributions of each party, and other facts of

the particular case.

N.C.G.S. § 50-13.4(c) (2019); see also Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d

185, 189 (1980) (“Under [N.C.]G.S. [§] 50-13.4(c), . . . an order for child support must

be based upon the interplay of the trial court’s conclusions of law as to (1) the amount

of support necessary to ‘meet the reasonable needs of the child’ and (2) the relative

ability of the parties to provide that amount. These conclusions must themselves be

based upon factual findings specific enough to indicate . . . that the judge below took

‘due regard’ of the particular ‘estates, earnings, conditions, [and] accustomed

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Opinion of the Court

standard of living’ of both the child and the parents.”). Based upon the findings of

fact provided in the Rule 60(b) Order, the trial court relieved Plaintiff of the child

support provisions ordered nearly a year earlier due to the failure of the earlier order

to address “the reasonable needs of the child for health, education, and maintenance,

having due regard to the estates, earnings, conditions, accustomed standard of living

of the child and the parties.” N.C.G.S. § 50-13.4(c) (2019). Absent the required

findings, the earlier order was “rendered contrary to [N.C.G.S. § 50-13.4(c)].” Young,

267 N.C. at 343, 148 S.E.2d at 229. Such an erroneous order could only have been

addressed by appeal, not by Rule 60(b). Town of Sylva, 51 N.C. App. at 548, 277

S.E.2d at 117.

Additionally, we interpret the aspects of Plaintiff’s motion and the Rule 60(b)

Order addressing findings of fact as referring to the requirement that:

[w]here, as here, the trial court sits without a jury, the

judge is required to find the facts specially and state

separately its conclusions of law thereon and direct the

entry of the appropriate judgment. . . . The purpose of the

requirement that the court make findings of those specific

facts which support its ultimate disposition of the case is to

allow a reviewing court to determine from the record

whether the judgment—and the legal conclusions which

underlie it—represent a correct application of the law. The

requirement for appropriately detailed findings is thus not

a mere formality or a rule of empty ritual; it is designed

instead to dispose of the issues raised by the pleadings and

to allow the appellate courts to perform their proper

function in the judicial system.

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Coble, 300 N.C. at 712, 268 S.E.2d at 188-189 (internal citations and quotation

omitted). Again, the findings of fact in the Rule 60(b) Order show that the action

being complained of was the entry of child support provisions that were “rendered

contrary to law” as the Custody Order failed to include the required findings of fact

to support its child support determination. Therefore, the trial court erred in using

Rule 60(b) here to relieve Plaintiff of the child support obligations as the findings of

fact in the Rule 60(b) Order described the Custody Order as an erroneous order. We

vacate the Rule 60(b) Order as an impermissible remedy for an alleged erroneous

order that could only be addressed by appeal. Town of Sylva, 51 N.C. App. at 548,

277 S.E.2d at 117.

CONCLUSION

The trial court impermissibly used Rule 60(b) to rectify what it described as an

erroneous order that only could have been addressed by appeal and not by Rule 60(b).

We vacate the Rule 60(b) Order. Defendant’s remaining arguments on appeal are

rendered moot and we do not address them. We remand this matter to the trial court

for further proceedings, including a hearing on Defendant’s Motion for Contempt.

VACATED IN PART; REMANDED IN PART.

Judge INMAN concurs.

Judge BERGER concurs in result only.

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