Judge ordered in court that things would stay the way they are until mother found 3 bedroom home for the children to have their own rooms. Over a month later mother’s attorney sent proposed order to father for review. He called her attorney and said he disagreed and wanted modifications due to all the changes that were made to “the way things are now”. A week later mothers attorney’s legal assistant called to say she could not find the modifications and she hoped she hadn’t deleted them. Father stated he would put them together again and send them. Before he could, mothers attorney sent the proposed order to the judge (2 1/2 weeks). Father sent Judge a letter asking her not to sign the order that he was working on the modifications. Judge signed the order anyway, though it goes against what she ordered in court. The signed order is incorrect and the Findings Of Fact are just allegation from the mother’s complaint. Is filing a Motion to Modify the best action to take in the matter?
You may file an appeal, not a motion to modify. You have to have a substantial change of circumstances to file for a modification. You may be looking to file under Rule 59 or 60 of the North Carolina Rules of Civil Procedure for a New Trial or Amendment of Judgment (59) or for Relief from Judgment or order (60). I recommend you read these two rules to see if either applies to your situation. Rule 60 is the proper rule under which to obtain relief from judgment. You may consider filing a motion for relief from judgment based on fraud/error. There is no form for a motion for relief from judgment as the underlying facts are different in each case. You could also attempt to get the court to grant a Rule 59 Motion ( amendment of judgment). My advice is to contact a lawyer in your county to help you through this process.