Final Order not correct - Motion to Amend or Relief

North Carolina Divorce Law Divorce and Separation Answers
1

We had a hearing on visitation 02/15. Judge’s ruling was fabulous. I was very happy.

Ex’s attorney was to draft the Order. After much proding from me, he finally submitted the draft to me. Many things were wrong about it. Several things the Judge ordered were left out and other things were added.

I submitted changes to the draft to opposing counsel (I’m Pro Se). I emailed him for weeks to determine the status and he never responded to me. When I was to the point of filing a Motion for Judicial Assistance, I finally received a letter from opposing counsel. He submitted the Order as they wanted it to be, made only three of the changes I requested (minor changes) and included a copy of my email to opposing counsel regarding the other changes I requested.

I’ve been waiting to hear from the Judge. On Friday, I received a copy of the Order with the judge’s signature - exactly as it was submitted to her. There was no contact or discussion regarding the changes I requested.

As I stated, there are things missing from the Order that the Judge stated in her ruling and there are items included that were never discussed in our hearing.

In addition, there was a provision on our Temporary Visitation Order that my ex was not allowed to leave the children in the care of his elderly (80+) parents. This was not discussed at the final hearing. I assumed (I guess erroneously) that it would be included in the final Order. Besides the other mistakes in the Order, I believe this is important to make certain is included in the permanent Order.

Do I:

File a Motion to Amend the Order and list the items I believe need be amended and why

or

File a Motion for Relief from Judgment Pursuant to Rule 60?

2

I would suggest you file a motion to amend the Order.
Rule 60 only applies when there has been a clerical error, mistake, newly discovered evidence, fraud, or when the judgement is void or has already been satisfied, released or discharged.

If the judge failed to include provisions contained in the verbal ruling, you will want to have a recorded copy of the same at the hearing.

3

Thank you for your response. One other question about this. There are items in the final Order that were never discussed at the hearing. Can opposing counsel add things that were never put before the Court?

4

No, opposing counsel is not free to add provisions that were not included in the ruling, and you should point those items out as well.

5

Thank you so much for your response. I have one additional question.

If opposing counsel submitted the proposed Order along with my objections to the Order, should the judge have made some kind of ruling on my objections? Is it normal process for the judge to just signed the proposed Order when their are objections to it?

I have filed a Motion to Amend the Order siting all the the things that are wrong with it. Hopefully, all works out in the end.

6

The judge is supposed to review the Order, and the suggested changes from the other side. The judge then makes changes or enters the Order as written depending on his or her ruling and notes from the hearing.

7

Thank you so very much for the information.

I have a hearing scheduled on my Motion to Amend on 06/07. I’ll let you guys know what happens :slight_smile: