The custody order was signed on October 23, 2008. It established joint physical custody until my son started school. If his father had not moved to this county by August 2010, then primary physical custody would revert to mother. The opposing attorney typed the order up completely different from what the judge ordered for when school started. I filed the motion 60(b)(1) last week; however, I read that it has to be filed before one year. Is that correct? Are there any exceptions? I could not get my attorney to fix the order. I told him that it was incorrect when I first received a copy of it in 2008, but he wouldn’t do anything to change it. Now the incorrect order states that my son is supposed to be driven from 2 hours away to school by 7:30 a.m. on Monday when the judge had ordered that we meet at 6 p.m. on Sunday. Also the holiday schedule is wrong. What can I do at this point? Will they still grant me relief from judgement if it has been over a year since my attorney would not help me and since the opposing attorney has made mistakes on another order in this case? Will they look at any of these other factors or just the timing? Is this a different case due to it being a change in custody when school started this year?
I just found this also (see below) Does this mean the judge can use his/her discretion in making a ruling for motion 60(b)(1) even if it is after the time period of 1 year?
This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.
This is a copy of what I actually put in the motion:
NOW COMES the plaintiff, Pro Se, and moves the Court for relief from judgement pursuant to rule 60 of the North Carolina rules of civil procedure. On motion and upon such terms as are just, the Court may relieve a party from a final judgement, order, or proceeding for Rule 60 (b) (1) mistakes, inadvertence, surprise, or excusable neglect. This motion is based upon electronically recorded court hearing on (date omitted for privacy), and the Order set forth by the Honorable (omit name for privacy) on that date. The order that was typed up by opposing attorney is not correct and can be proven by listening to recorded court session.
My final question is even though I listed information about motion 60 (b)(1), I did not actually specify that as being the reason. Could the judge still base it on Rule 60 (a) clerical mistakes even though that is not typed in the motion or would I need to file another motion specifying that so that the order will be changed. Rule 60 (a) does not specify a time period in which the motion has to be filed, but that the judge may correct order at any time on the motion of a party.
Sorry this is so long and so many questions. I am just trying to figure out how to get this custody order corrected. It is such a mess right now.
The motion is to be filed within one year of entry, you may attempt to pursue the motion based on the exception listed below and allege that his attorney committed a fraud upon the court. If the court denies the motion, your option at that point is to file a motion to modify custody based on the substantial change in circumstances.