{
  "id": 8553216,
  "name": "JUDENE S. (ARNETTE) COLEMAN v. FRANCIS D. ARNETTE",
  "name_abbreviation": "Coleman v. Arnette",
  "decision_date": "1980-09-16",
  "docket_number": "No. 8029DC79",
  "first_page": "733",
  "last_page": "735",
  "citations": [
    {
      "type": "official",
      "cite": "48 N.C. App. 733"
    }
  ],
  "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": [],
  "analysis": {
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  "last_updated": "2023-07-14T21:18:20.579461+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Morris and Judge Clark concur."
    ],
    "parties": [
      "JUDENE S. (ARNETTE) COLEMAN v. FRANCIS D. ARNETTE"
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nThis appeal was filed 153 days after notice of appeal was entered, violating Rule 12(a), North Carolina Rules of Appellate Procedure, and subjecting it to dismissal. In order to prevent manifest injustice, the Court in its discretion treats the appeal as a petition for review by certiorari and allows the petition.\nCounsel for defendant and the trial court have misconceived the purposes of Rule 60(b)(6), N.C.R. Civ. Proc. Defendant seeks to amend the divorce judgment, not to be relieved of the judgment. N.C.G.S. 1A-1, Rule 59(e), governs amendments to judgments and requires that motions to alter or amend judgments be made within ten days after entry of the judgment. Defendant\u2019s motion to amend was not timely made.\nRule 60(a), N.C.R. Civ. Proc., permits correction of clerical mistakes in judgments. Rule 60(b) permits motions for relief from judgments for five specific reasons and for \u201c[a]ny other reason justifying relief from the operation of the judgment.\u201d The judgment defendant seeks to amend does not control which party is entitled to claim the children as dependents for tax purposes. Defendant cannot achieve the result he desires by a motion under Rule 60(b)(6) to be relieved of the effect of the judgment.\nWe note that the order entered by the district court does not prohibit plaintiff from claiming the children as dependents for tax purposes; it merely allows defendant to do so. In any event, the determination of which parent is entitled to a dependency deduction in a given year is controlled by special rules of the Internal Revenue Code, I.R.C. \u00a7 152(e), and the North Carolina income tax law, N.C.G.S. 105-149(a)(5).\nDefendant\u2019s motion is to amend the judgment. By the very words of the court\u2019s order, \u201cbe and the same are hereby amended,\u201d the district court attempted to amend the divorce judgment. The motion was not properly made pursuant to Rule 60(b)(6) and the court erred in so considering it. As a motion to amend, it comes too late. Plaintiff\u2019s motion to dismiss should have been allowed.\nThe order of 21 August 1979 is reversed, and this cause is remanded to the district court for the entry of an order dismissing defendant\u2019s motion of 6 April 1978.\nReversed and remanded.\nChief Judge Morris and Judge Clark concur.",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Riddle, Shackelford & Hyler, by John E. Shackelford, for plaintiff appellant.",
      "Ramsey, White & Cilley, by William R. White, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JUDENE S. (ARNETTE) COLEMAN v. FRANCIS D. ARNETTE\nNo. 8029DC79\n(Filed 16 September 1980)\nRules of Civil Procedure \u00a7 60- motion to amend not motion for relief from judgment - motion to amend improperly allowed\nDefendant\u2019s motion to amend the parties\u2019 divorce judgment to permit him to claim the two children of the parties as dependents on his state and federal tax returns was not properly made pursuant to G.S. 1A-1, Rule 60(b)(6) since that rule permits motions for relief from judgments, and defendant sought to amend the judgment rather than to be relieved of the judgment.\nAppeal by plaintiff from Guice, Judge. Order entered 21 August 1979 in District Court, Transylvania County. Heard in the Court of Appeals 26 August 1980, at Waynesville, North Carolina.\nOn 13 June 1974 a judgment was entered granting the parties an absolute divorce. No issues of support payments, custody of children, or visitation were raised on the pleadings as the parties had already entered into a separation agreement concerning these matters. The divorce judgment contained the following:\nIt is further ordered that support payments to be made by the defendant, the defendant\u2019s visitation privileges and plaintiffs custody of the said minor children be in accordance with the Separation Agreement entered into by the parties hereto.\nA separation agreement dated 22 January 1973 and executed by the plaintiff and defendant is included in the record as an exhibit. This agreement does not contain any provision deciding who shall be entitled to claim the two minor children of plaintiff and defendant as dependents on state and federal income tax returns.\nOn 6 April 1978, defendant filed a motion in the divorce proceeding requesting that he be permitted to claim the two children of the marriage as dependents on his state and federal income tax returns. Defendant alleges it was agreed by plaintiff and defendant that so long as he paid $190 per month as support for the children he would be entitled to claim the children as dependents, although this was not included in the written agreement.\nPlaintiff filed answer to defendant\u2019s motion and denied any agreement with respect to who can claim the children as dependents for tax purposes. Plaintiff also moved to dismiss defendant\u2019s motion as failing to state a claim upon which relief can be granted.\nAfter hearing, the trial court denied plaintiff\u2019s motion to dismiss, and entered an order finding facts and concluding that defendant\u2019s motion was made pursuant to N.C.G.S. 1A-1, Rule 60(b)(6), and should be allowed. He ordered the divorce judgment dated 13 June 1974 and the separation agreement dated 22 January 1973 amended to include that defendant be allowed to claim the two children of the parties as dependents upon his state and federal tax returns for 1975 and thereafter. Plaintiff appeals.\nRiddle, Shackelford & Hyler, by John E. Shackelford, for plaintiff appellant.\nRamsey, White & Cilley, by William R. White, for defendant appellee."
  },
  "file_name": "0733-01",
  "first_page_order": 761,
  "last_page_order": 763
}