Plаintiff and Defendant entered into a Contract of Separation, Property Settlement, Child Support, Child Custody and Alimony Agreement (the Agreement) on 17 December 2007. One of the provisions of the Agreement concerned confidentiality. Plaintiff and Defendant agreed that “neither party [would] disclose any financial information relating to the other party or any provision of th[e] Agreement to anyone except” certain professionals, such as their attorneys and financial advisors, unless compellеd by law. Plaintiff and Defendant further agreed to keep private certain personal information regarding each other “unless either party is legally compelled to disclose any such information^]” The Agreement stated that breach of the confidentiality provision would constitute a material breach. In the final paragraph of the confidentiality clause, Plaintiff and Defendant agreed
that if either of them institutes or responds to litigation that relates to and requires disclosure of any of the tеrms of th[e] Agreement, [Plaintiff and Defendant] agree to use their best efforts so that any reference to the terms of th[e] Agreement and the Agreement itself will be filed under seal, with prior notice to the other party.
Plaintiff filed a complaint against Defendant on 11 September 2008, 08 CVD 20661, seeking an order directing the Mecklenburg County Clerk of Superior Court to seal Plaintiffs complaint and any future pleadings and documents filed in that action. Plaintiff amended his complaint on 17 September 2008. Judge N. Todd Owens issued an order (Judge Owens’ order) on 18 December 2008 in which he ruled:
The Clerk of Superior Court shall seal the pleadings and other documents [and] [t]he Clerk ... is directed to file under seal any pleadings and documents filed in any subsequent actions between the parties related to the Agreement [and all such pleadings, documents, and orders] may be unsealed only by further order of the [c]ourt, after reasonable notice to the parties.
Judge Owens based his ruling on conclusions of law 1 that:
2. There is a compelling countervailing public interest in protecting the privacy of the parties as relates to the provisions of the Agreement concerning their young children and their financial affairs, and in avoiding damage or harm to the parties, their business interests, and their children which could result from public access to such provisions of the Agreement.
3. There is a compelling countervailing public interest in protecting the sanctity of contracts such as the Agreement, where people bargain for and agree upon a mechanism to resolve future disputes in a confidential mannеr and other contract terms which are not contrary to law, and where each party relies on the other party to perform his or her obligations under the contract.
4. The aforesaid countervailing public interests in paragraphs 2 and 3 above outweigh the public’s interest in access to the documents filed in this court proceeding and in future proceedings between the parties concerning the Agreement.
5. The Court has considered whether there are alternatives to sealing the сourt files in order to protect the public interests referred to in paragraphs 2 and 3 above, and finds there are no such alternatives.
Plaintiff then filed a new complaint, under seal, on 31 December 2008 (the complaint), 08 CVS 28389, in which Plaintiff alleged Defendant had violated certain terms of the Agreement, including the confidentiality clause. Plaintiff specifically referenced Judge Owens’ order and incorporated it in the complaint. Plaintiff’s first claim for relief was for rescission of the Agreement, which, we note, would render void the confidentiality clause. Plaintiff’s alternate claims for relief were for specific performance and breach of contract. Defendant filed an answer, affirmative defenses, and counterclaim on 5 March 2009.
Plaintiff filed motions to seal the proceedings and for a preliminary injunction on 29 September 2009. These motions were heard before Judge Jena P. Culler on 15 October 2009. Defendant joined Plaintiff in seeking to have the proceedings in the action closed. By order filed 13 November 2009 (Judge Culler’s first order), Judge Culler denied both Plaintiffs motion to close the proceedings and Plaintiff’s motion for a preliminary injunction. Judge Culler further ordered: “Proceedings in this case shall be conducted in open court.” Judge Culler based her ruling on her conclusion of law that: “Although both parties affirmatively sought the relief of closing the court proceedings in this litigation, there are no compelling countervailing public interests as related to these parties which outweigh the public’s right and access to оpen court proceedings.” Plaintiff appealed Judge Culler’s first order on 13 November 2009.
The Charlotte Observer Publishing Company and WCNC-TV, Inc. (Media Movants) filed a motion to determine access to judicial proceedings and documents in these matters on 17 November 2009, whereby they requested that Judge Culler “[o]rder [that] the courtroom remain open to the public and press in both 08 CVD 20661 and 08 CVD 28389” and that she also order that “the records and court files in both [actions] be unsealedf.]” Judge Culler heard Media Movant’s motion on 11 Dеcember 2009. In an order filed 18 December 2009 (Judge Culler’s second order), Judge Culler acknowledged Judge Owens’ order. In Judge Culler’s second order, she stated that she had previously ordered the proceedings to be open. Judge Culler then ordered that all “proceedings in connection with 08 CVD 20661
4. There [are] no compelling countervailing public or governmental interests] to be protected as it relates to the parties that outweighs the public’s longstanding presumptive right to opеn courts as espoused in the North Carolina Constitution, North Carolina statutory law, . . . and the related case law[.]
Judge Culler’s second order was to be “effective at 12:00 p.m. on December 31, 2009.” Plaintiff filed notice of appeal from Judge Culler’s second order on 21 December 2009 and also filed a motion to stay Judge Culler’s second order. In an order entered that same day, Judge Culler denied Plaintiff’s motion to stay. By motion filed 22 December 2009, Plaintiff moved our Court to stay Judge Culler’s first and second orders. By order entered 23 Dеcember 2009, our Court granted Plaintiff’s motion to stay “pending determination of [Plaintiff’s] petition for writ of supersedeas.” On 4 January 2010, our Court granted Plaintiff’s petition for writ of supersedeas, and stayed implementation of Judge Culler’s first and second orders “pending further orders of this Court.”
Plaintiffs Second Appeal (COA10-425)
Plaintiff appealed Judge Culler’s first order on 13 November 2009. As our Court held in
RPR & Assocs. v. University of N.C.-Chapel Hill,
[a]s a general rule, once a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio. See Bowen v. Motor Co.,292 N.C. 633 , 635,234 S.E.2d 748 , 749 (1977); Sink v. Easter,288 N.C. 183 , 197,217 S.E.2d 532 , 541 (1975). Functus officio, which translates from Latin as “having performed his o[r] her office,” is defined as being “without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” Thus, when a court is functus officio, it has completed its duties pending the decision of the appellate court. Theprinciple oí functus officio stems from the general rule that two courts cannot ordinarily have jurisdiction of the same case at the same time. See Wiggins v. Bunch, 280 N.C. 106 , 110,184 S.E.2d 879 , 881 (1971).
It follows from the principle of functus officio that if a party appeals an immediately appealable interlocutory order, the trial court has no authority, pending the appeal, to proceed[.]
Judge Culler’s second order was entered on 18 December 2009, following a hearing that was held 11 December 2009. Plaintiff’s appeal of Judge Culler’s first order on 13 November 2009 divested the trial court of jurisdiction in the matter
2
and jurisdiction transferred to this Court. Thus, Judge Culler’s second order is a nullity because the trial court was without jurisdiction to hear the matter on 11 December 2009.
See Hall v. Cohen,
Plaintiff’s First Appeal (COA10-313)
We first note that Plaintiff attempts to appeal from an interlocutory order because Judge Culler’s first order does not finally dispose of all issues in these actions.
Embler v. Embler,
It is well established that one trial court judge may not overrule another trial court judge’s conclusions of law when the same issue is
Though Judge Owens and Judge Culler were required to conduct the same legal analysis in making their respective rulings, the factual situations before them were different. Judge Owens’ order is limited to a ruling that all pleadings and documents in any action related to the Agreement be sealed. Judge Culler’s first order is limited to a ruling that the actual court proceedings, and the courtroom, remain open to the public. Judge Culler’s first order did not address thе pleadings and other documents related to the actions before us. Because Judge Culler’s first order did not rule that the pleadings and documents in these actions should be unsealed, Judge Culler’s first order does not impermissibly overrule Judge Owens’ order.
3
See State v. Woolridge,
We must now decide whether Judge Culler was correct in ruling that “thеre are no compelling countervailing public interests as
“The paramount duty of the trial judge is to supervise and control the course of the trial so as to prevent injustice.” Thus, even though court records may generally be public records under N.C.G.S. § 132-1, a trial court may, in the proper circumstances, shield portions of court proceedings and records from the public; the power to do so is a necessary power rightfully pertaining to the judiciary as a separate branch of the government, and the General Assembly has “no power” to diminish it in any manner. N.C. Const, art. IV, § 1[.] This necessary and inherent power of the judiciary should only be exercised, however, when its use is required in the interest of the proper and fair administration of justice or where, for reasons of public policy, the openness ordinarily required of our government will be more harmful than beneficial.
Virmani v. Presbyterian Health Services Corp.,
The qualified public right of access to civil court proceedings guarantеed by Article I, Section 18 is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or for other compelling public purposes. Thus, although the public has a qualified right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this аnalysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.
Id.
at 476-77,
Beginning with the “presumption that the civil court proceedings and records at issue in this case must be open to the public, including the news media, under Article I, Section 18[,]”
Virmani,
In his argument concerning his right to contract, Plaintiff states that “unless a contract is contrary to public policy or prohibited by statute, the freedom to contract requires that it be enforced.
See Turner v. Masias,
Plaintiff’s position would also render meaningless provisions of the Public Records Act, N.C. Gen. Stat. § 132-1 (1995).
Virmani,
We hold that, in the present case, the trial court was correct to determine whether proceedings should be closed based upon the nature of the evidence to be admitted and the facts of this specific case. Evidence otherwise appropriate for open court may not be
By contrast, our appellate courts have ruled for the disclosure of traditionally confidential records pursuant to the Public Records Act.
See,
e.g.,
Carter-Hubbard Pub’lg Co. v. WRMC Hosp. Operating Corp.,
Second, we hold that Plaintiff’s claim that his “constitutional right of privacy, pаrticularly with respect to matters surrounding the parenting of minor children,” will be violated is without merit, and Plaintiff fails to show that any such right to privacy outweighs the qualified right of the public to open proceedings. Plaintiff cites no authority in support of his claim that any “compelling interest” exists to close the proceedings in the present case for the protection of his children, especially as Plaintiff argues that the entire proceeding should be closed, not just the portions involving information concerning his minor childrеn. While a trial court may close proceedings to protect minors in certain situations, such as where a child is testifying about alleged abuse that child has suffered, or adoption proceedings, N.C.G.S. § 48-2-203, we can find no case supporting the closing of an entire proceeding merely because some evidence relating to a minor child would be admitted. We hold that it is the province of the trial court to determine when a proceeding will be closed to protect a minor child, absent a specific statutory mandate such as in N.C.G.S. § 48-2-203.
In most instances, a proceeding will only be closed during the testimony of the minor child. Plaintiff has presented nothing on appeal demonstrating that the trial court abused its discretion by denying Plaintiff’s motion to close the proceeding merely because some evidence concerning his minor children could be admitted. If, during the course of a proceeding, the trial court determines that any part of the proceeding should be closed to protect a minor сhild, the trial court remains free to make that determination. We hold that the trial court did not abuse its discretion in denying Plaintiff’s motion to close the proceeding to the public, which included the media.
Affirmed in part, vacated in part and remanded.
Notes
. Though not labeled “conclusions of law” in Judge Owens’ order, we look past the labels and treat conclusions as conclusions.
In re R.A.H.,
. We hold below that Judge Culler’s first order was immediately appealable.
See RPR & Assocs.,
. We do not believe the portion of Judge Owens’ order stating that the documents in the case “may only be unsealed by further order of the [c]ourt” provided Judge Culler authority to overrule Judge Owens’ conclusions of law absent a finding of changed circumstances.
See Morris v. Gray,