Duplin County DSS ex rel. Pulley v. Frazier
751 S.E.2d 621
N.C. Ct. App.2013Background
- Duplin County DSS appeals the trial court’s order setting aside a provision for periodic child support payments from a 2010 judgment."
- The 1991 order found Defendant to be the natural father and awarded $400/month and $20/month arrearages for past aid.
- In 2001, arrearages were reduced and remaining arrearages were set as a judgment.
- In 2010, Judge Hardison ordered $275/month toward $23,600 arrearages under N.C. Gen. Stat. § 50-13.4(f)(8).
- In 2013, Judge Moore set aside the periodic payment provision; Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b) allows setting aside the periodic payments provision | Pulley argues the 2013 order voids the 2010 judgment’s payment provision | Frazier argues the 60(b) motion shows the 2010 judgment is void due to § 50-13.4 vagueness | No; 60(b) relief not valid to modify the 2010 judgment. |
| Whether the 30 August Judgment was void and subject to Rule 60(b)(4) | Pulley contends the judgment is voidable as a money judgment | Frazier contends the judgment was proper and did not lack jurisdiction | The 30 August Judgment was not void; Rule 60(b)(4) does not apply. |
| Whether Judge Hardison had jurisdiction/authority to enter the 30 August Judgment under §50-13.4 | Plaintiff argues new action on prior debt could not create enforceable periodic payments | Defendant asserts proper authority under §50-13.4 to enter periodic payments | Judge Hardison had jurisdiction and authority; 30 August Judgment proper. |
Key Cases Cited
- Town of Sylva v. Gibson, 51 N.C. App. 545 (1981) (judge cannot modify another judge’s judgment absent listed grounds)
- In re Royster, 361 N.C. 560 (2007) (one superior court judge may not modify another’s judgment)
- Griffin v. Griffin, 103 N.C. App. 65 (1991) (remedies to collect arrears may include more than execution; broad discretion under §50-13.4)
- NCNB v. Robinson, 80 N.C. App. 154 (1986) (new judgment on prior debt; separate action permitted)
- Draughon v. Draughon, 94 N.C. App. 597 (1989) (equitable distribution order; no authorized basis to set aside)
- Burton v. Blanton, 107 N.C. App. 615 (1992) (void judgment requires true lack of jurisdiction)