Requesting that trial judges modify their judgments or orders is not for the faint of heart. Informing a trial judge that he or she has likely goofed is not fun, but it is often necessary. Indeed, the Appellate Rules usually force litigants to alert trial judges to potential errors in the hopes that they will fix their errors—saving valuable judicial and party resources by obviating the need for an appeal. See Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure § 4.01 [Rationale for Requiring Error Preservation].
Yet, we have also warned about the snares and uncertainties that can derail future appeals when seeking post-judgment relief. Those dangers have precipitated several specific warnings about resisting the urge to give trial judges one last chance—particularly in the context of Civil Rule 59 motions.
But what about a Rule 60 motion? Do the same warnings apply to those motions? To be sure, even proper Rule 60 motions will not toll a notice of appeal deadline. But can a party count on a Rule 60 motion to save the day when a trial judge is willing to concede error in an earlier order?
Earlier this month, the Court of Appeals reminded us that the answer to that question is “No.” Jackson v. Jackson involves a family law case with multiple claims between a divorcing mom and dad. In September 2017, the trial judge entered a custody order. That custody order arguably included child support obligations—requiring dad to pay mom’s travel expenses. While dad did not appeal that custody order, he also failed to pony up the travel expenses required by the order.
Eight months later, mom moved for a show cause order for civil contempt. Dad responded by filing a “Motion for Relief from Order and/or Modification of the Order.” Dad sought modification of the custody order to eliminate mom’s travel expenses because neither party had presented evidence during the custody proceeding as to their income or child-related expenses. The trial judge agreed and invoked Civil Rules 60(b)(5) and (6) to set aside dad’s travel expense payments—in the process mooting mom’s request for a show cause order.
In response, mom took her own opportunity to give the trial judge once last chance. She moved for a new trial, contending that the modified custody order could not be entered without making new findings or conducting a new evidentiary hearing. After the trial judge denied the request for a new trial, mom appealed.
The Jackson court reversed, holding that dad’s “Rule 60 motion [was] an improper method to remedy erroneous orders, which are properly addressed only by timely appeal.”
Civil Rules 60(b)(5) and (6) permit a trial judge to modify a final judgment, order, or proceeding when
(5) [I]t is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment.
And while motions under other provisions of Rule 60(b) must be filed within one year, motions under subsections (5) and (6) have to be brought only within a “reasonable” time.
Rule 60(b)(6) has long been described as “a grand reservoir of equitable power to do justice in a particular case.” Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 712, 222 S.E.2d 706, 708, (1976). Given the broad language of Rule 60 and associated case law, one might assume that the trial judge’s first custody order was subject to modification under Civil Rule 60. But as Ann Anderson warns in her handy-dandy book, Relief from Judgments in North Carolina Civil Cases (2016), Rule 60(b)(6) should not be viewed as a “catch-all.” Only the appellate courts can correct “errors of law.”
What, then, is an untouchable “error of law”? Jackson explained that an “erroneous order” that can be fixed only by the appellate court “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.” According to Jackson, dad’s beef with the custody order was a “legal error . . . rather than an irregularity” and, thus, could not be corrected using Civil Rule 60(b).
But does this case have an unaddressed wrinkle (or two)? Child support claims (and perhaps other family law claims) appear to be still pending in the Jackson litigation—which takes us into a quirky area of family law. Family law cases that involve interrelated claims such as divorce, alimony, and child support are of course appealable when a final judgment is entered under N.C. Gen. Stat. § 7A-27—i.e., when all of the claims between all of the parties are resolved by the trial court. But some interlocutory family law orders (including some custody orders) may be (but are not required to be) appealed immediately under N.C. Gen. Stat. § 50-19.1. My reading is that dad missed this permissive appeal deadline for the custody order under § 50-19.1. And while normally only final judgments are subject to Rule 60(b) relief, the Court of Appeals treats child support and child custody orders as final orders for purposes of Rule 60(b). Anderson, supra at 148. Yet in her book, Professor* Anderson also assumed that these pseudo-final-but-not-really-“final, final” custody and child support orders would remain “subject to modification under the [trial] court’s continuing jurisdiction.”
This assumption is not surprising. Civil Rule 54 states that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
The unique jurisdictional procedures surrounding family law cases raises several interesting questions:
- If the trial judge had modified the custody order under Civil Rule 54 (e., using his authority to modify interlocutory orders before a “final, final” judgement is entered) might the outcome have been different?
- Once a “final, final” judgment as to all claims and all parties is entered in the Jackson litigation, could dad seek appellate review of the custody order as part of a § 7A-27 final judgment appeal?
I am eager to know your thoughts. How do these family law cases work in the trenches? Is this a case in which you would have resisted the urge to give the trial judge one last chance?
*Ann Anderson recently left the School of Government to tackle a new position: Chapel Hill’s Town Attorney. We will miss Ann’s regular sprinkling of School of Government wisdom, but wish her the best in her new role!