{ "id": 8352111, "name": "DARYL J. BLACK, Plaintiff v. SHELLY L. BLACK (now Hewett), Defendant", "name_abbreviation": "Black v. Black", "decision_date": "2005-11-01", "docket_number": "No. COA05-44", "first_page": "361", "last_page": "364", "citations": [ { "type": "official", "cite": "174 N.C. App. 361" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "269 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553216 ], "year": 1980, "pin_cites": [ { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0733-01" ] }, { "cite": "579 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "affirming trial court's denial of a Rule 60(b) motion which did not seek relief, but expressly requested \"a modification or an amendment\" of the prior order" } ], "opinion_index": 0 }, { "cite": "357 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491587 ], "year": 2003, "pin_cites": [ { "parenthetical": "affirming trial court's denial of a Rule 60(b) motion which did not seek relief, but expressly requested \"a modification or an amendment\" of the prior order" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0153-01" ] }, { "cite": "568 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "285" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250921 ], "year": 2002, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0588-01" ] }, { "cite": "439 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "amending written order to add findings announced in open court was more than correction of a clerical error, because it affected the parties' substantive rights" } ], "opinion_index": 0 }, { "cite": "335 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532226, 2529540, 2530381, 2532046, 2532029 ], "year": 1993, "pin_cites": [ { "parenthetical": "amending written order to add findings announced in open court was more than correction of a clerical error, because it affected the parties' substantive rights" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0236-03", "/nc/335/0236-05", "/nc/335/0236-02", "/nc/335/0236-01", "/nc/335/0236-04" ] }, { "cite": "433 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "784", "parenthetical": "amending written order to add findings announced in open court was more than correction of a clerical error, because it affected the parties' substantive rights" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 822", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524228 ], "year": 1993, "pin_cites": [ { "page": "825", "parenthetical": "amending written order to add findings announced in open court was more than correction of a clerical error, because it affected the parties' substantive rights" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0822-01" ] }, { "cite": "575 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189508 ], "year": 2003, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0001-01" ] }, { "cite": "362 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "872", "parenthetical": "while failure to give rule number pursuant to which motion is made is not fatal, to do so would be of great benefit to both trial and appellate courts" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 257", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358076 ], "year": 1987, "pin_cites": [ { "page": "262", "parenthetical": "while failure to give rule number pursuant to which motion is made is not fatal, to do so would be of great benefit to both trial and appellate courts" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0257-01" ] } ], "analysis": { "cardinality": 378, "char_count": 6516, "ocr_confidence": 0.757, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20283093724769283 }, "sha256": "21bcbf590faf10f76f57baae92634f11de504b1f4e226400fdf401f78af3d8c1", "simhash": "1:e5ae366f262d14d8", "word_count": 1101 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STEELMAN concur." ], "parties": [ "DARYL J. BLACK, Plaintiff v. SHELLY L. BLACK (now Hewett), Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nOn 28 November 2001 the trial court entered a written custody order granting plaintiff primary custody, and defendant visitation, of the couple\u2019s then two-year-old child. The order also established a visitation schedule, including, inter alia, the provision at issue in this appeal:\nWeekday Visitation: Plaintiff shall transport the minor child to Defendant\u2019s house at 6:00 p.m. each Wednesday and Defendant shall exercise visitation that night and return the child to day care on Thursday morning.\nOn 23 August 2004, defendant filed a motion to show cause, alleging, among other things, that plaintiff violated the existing custody order by denying defendant her Wednesday night visitation on 18 August 2004, and notifying her of his intent \u201cto stop the Wednesday overnight visits because the child had begun Kindergarten.\u201d In response to defendant\u2019s motion, plaintiff filed a \u201cMotion To Amend Order\u201d seeking to amend the 28 November 2001 order to comply with the trial court\u2019s oral decree made at the 5 November hearing. At the conclusion of that hearing, the trial court stated, \u201cI\u2019m going to follow the same visitation schedule as is set out in the temporary custody order, with a couple of exceptions. I\u2019m going to add one overnight during the week until the child starts kindergarten....\u201d The trial court then instructed plaintiff\u2019s counsel to \u201cdraw it and show it to\u201d defendant\u2019s counsel. However, the written custody order, as prepared by plaintiff\u2019s counsel, contained no language concerning cessation of the weeknight overnights when the child began kindergarten.\nPlaintiff\u2019s motion was heard 10 September 2004. The trial court allowed the motion, citing N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6), and amended the order to provide that defendant would be allowed visitation on Wednesday nights from 5:30 p.m. to 8:00 p.m., rather than overnight. Defendant appeals.\nDefendant argues the trial court erred by granting the motion to amend the custody order pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6) (2003). We agree.\nPlaintiff\u2019s \u201cMotion To Amend [the 28 November 2001] Order\u201d did not specify the rule of Civil Procedure under which he sought relief. See Home Health and Hospice Care, Inc. v. Meyer, 88 N.C. App. 257, 262, 362 S.E.2d 870, 872 (1987) (while failure to give rule number pursuant to which motion is made is not fatal, to do so would be of great benefit to both trial and appellate courts). Thus, we must first determine whether the relief sought by plaintiff was available under any rule.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 59(e) (2003) permits the amendment of final judgments or orders upon motion filed within 10 days after entry of the judgment or order sought to be amended. Since plaintiffs motion was not filed for nearly three years after entry of the 28 November 2001 order, relief was not available under Rule 59.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 60(a) provides for the correction of clerical errors by the trial court at any time. However, the trial court has no authority, under the guise of correction of a clerical error, to make modifications to an order or judgment which affect the substantive rights of any party. Spencer v. Spencer, 156 N.C. App. 1, 11, 575 S.E.2d 780, 786 (2003); Buncombe County ex rel. Andres v. Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784, disc. review denied, 335 N.C. 236, 439 S.E.2d 143 (1993) (amending written order to add findings announced in open court was more than correction of a clerical error, because it affected the parties\u2019 substantive rights).\nThus, although plaintiffs motion was captioned as one to \u201camend\u201d the 28 November 2001 order, the motion to amend was not timely under Rule 59, and there was no clerical error to be corrected under Rule 60(a). Therefore, the trial court treated it as a motion for relief from that order pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6). In so doing, the trial court misconstrued Rule 60(b)(6), which allows a trial court to grant relief from a judgment or order for \u201c[a]ny other reason justifying relief from the operation of the judgment.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6).\nHere, rather than seeking to be relieved of the effect of the 28 November 2001 custody order, plaintiff sought to amend the effect of that order to reduce defendant\u2019s weeknight visitation privilege. By the terms of the trial court\u2019s \u201cOrder Allowing Amendment to Custody Order,\u201d the trial court \u201camended\u201d the decretal portion of the 28 November 2001 order, rather than relieving the plaintiff of its provisions. See White v. White, 152 N.C. App. 588, 592, 568 S.E.2d 283, 285 (2002), aff\u2019d, 357 N.C. 153, 579 S.E.2d 248 (2003) (affirming trial court\u2019s denial of a Rule 60(b) motion which did not seek relief, but expressly requested \u201ca modification or an amendment\u201d of the prior order). The trial court erred in considering the motion as one for relief made under Rule 60(b)(6) and in granting it. Coleman v. Arnette, 48 N.C. App. 733, 735, 269 S.E.2d 755, 756 (1980). The \u201cOrder Allowing Amendment to Custody Order\u201d is vacated and the original custody order of 28 November 2001 remains in effect. In view of our holding, we need not address defendant\u2019s remaining arguments.\nVacated.\nJudges HUNTER and STEELMAN concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "No brief filed for 'plaintiff-appellee.", "Virginia R. Hager for defendant-appellant." ], "corrections": "", "head_matter": "DARYL J. BLACK, Plaintiff v. SHELLY L. BLACK (now Hewett), Defendant\nNo. COA05-44\n(Filed 1 November 2005)\nChild Custody, Support, and Visitation; Civil Procedure\u2014 Rule 60(b)(6) \u2014 motion to amend effect of order \u2014 motion for relief from order\nThe trial court erred by granting a motion to amend the parties\u2019 child custody order pursuant to N.C.G.S. \u00a7 1A-1, Rule 60(b)(6), and the original custody order of 28 November 2001 remains in effect, because: (1) Rule 60(b)(6) allows a trial court to grant relief from a judgment or order for any other reason justifying relief from the operation of the judgment; (2) rather than seeking to be relieved of the effect of the 28 November 2001 custody order, plaintiff sought to amend the effect of that order to reduce defendant\u2019s weeknight visitation privilege; and (3) by the terms of the trial court\u2019s Order Allowing Amendment to Custody Order, the trial court amended the decretal portion of the 28 November 2001 order, rather than relieving the plaintiff of its provisions.\nAppeal by defendant from order entered 15 September 2004 by Judge J. H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 17 October 2005.\nNo brief filed for 'plaintiff-appellee.\nVirginia R. Hager for defendant-appellant." }, "file_name": "0361-01", "first_page_order": 391, "last_page_order": 394 }