I am the defendant in a Child Support case in Carteret County NC. There was a motion to Modify (3 years, 15% change) in August 2017.
I did not attend. Plaintiff did not attend. Order was granted.
There is a material error in the pleading/order in that one of the 4 children’s birthday is incorrectly listed as 1999, when it is actually 1998. His birthday had been previously established correclty in other motions/orders in the case.
This child was 18 at the time of the filing and 5 days from his 19th birthday at the time of the order. He was enrolled in college at the time.
The order states that it continues until each child is 18.
There is also a question in item #16 “Other” it is handwritten “This is a Permanent Order”, however the box next to this handwritten sentence is not checked.
Do I have cause to go back and ask the court to:
- Set aside the order as it contains an error that would directly change the ruling (counting a child as under 18, and included in the support calculation), reverting to the previous order amount until a new hearing is held, or
- Barring that outcome, asking a judge to enter a new order, including only 3 children.
and, if either of the above are granted, am I allowed to ask for credit for the variance of what should have been withheld since the order was entered vs. what was actually withheld?
Thanks!
You can file a Rule 60 motion to fix a clerical mistake since the child’s birthday is correctly stated in other filings of the same file number. However, the court order cannot be amended (Rule 59 motion) since more than 10 days have passed since the entry of the order. You will have to file a new motion to modify child support and show evidence that the oldest child is 19 and has graduated from high school. You will likely not be able to receive a credit for overpayments.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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