Jenkins v. Middleton , 114 N.C. App. 799 ( 1994 )

COZORT, Judge.

Plaintiff appeals from the trial court’s order setting aside a previous order adjudicating defendant to be the father of plaintiff’s three minor children. We find the second trial court judge lacked authority to set aside the order or judgment of another trial court judge, and we reverse the second order. The facts follow.

On 11 July 1990, plaintiff filed in South Carolina a petition under the Uniform Reciprocal Enforcement of Support Act, seeking to establish defendant’s paternity and child support obligations. On 22 August 1991, a summons and order to show cause for child support was filed in Cumberland County and was served on defendant on 30 August 1991. On 24 October 1991, Judge Elizabeth Keever entered an order requiring the parties and the children to submit to blood testing for proof of paternity. On 21 May 1992, Judge Keever granted defendant’s request for a continuance until 25 June 1992. On 18 June 1992, defendant filed an answer denying paternity, requesting blood tests, and requesting a jury trial. On 30 June 1992, defendant filed an amended answer. On 30 July 1992, Judge James F. Ammons, Jr., sitting without a jury, entered an order finding that defendant’s answer and motion for jury trial were not timely filed. Judge Ammons adjudicated defendant to be the father of plaintiff’s three minor children and ordered him to pay monthly child support. Defendant gave oral notice of appeal in open court.

On 2 September 1992, defendant filed a motion to set aside the 30 July 1992 order, alleging that he was denied the opportunity to face his accuser and denied a jury trial. On 24 September 1992, Judge Sol Cherry entered an order setting aside the 30 July 1992 judgment on the grounds that defendant was entitled to a jury trial. Plaintiff timely filed written notice of appeal.

On appeal, plaintiff argues that Judge Cherry erred in setting aside Judge Ammons’ judgment adjudicating defendant’s paternity. We agree.

[E]rroneous judgments may be corrected only by appeal, and ... a motion under G.S. 1A-1, Rule 60(b) of the Rules of Civil Procedure cannot be used as a substitute for appellate review. A judge of the District Court cannot modify a judgment or order of another judge of the District Court, absent mistake, fraud, newly discovered evidence, satisfaction and release, or a showing based on competent evidence that justice requires it.

Town of Sylva v. Gibson, 51 N.C. App. 545, 548, 277 S.E.2d 115, 117, appeal dismissed and cert. denied, 303 N.C. 319, 281 S.E.2d 659 (1981) (citations omitted).

Judge Cherry’s order makes no specific findings to justify setting aside the previous order. We must proceed under the premise that the order was set aside on the basis of N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (1990), which provides that an order may be set aside for “any other reason justifying relief from the operation of the judgment.” Relief from an order is appropriate under Rule 60(b)(6) only if there are (1) extraordinary circumstances and (2) there is a showing that justice demands it. Oxford Plastics v. Goodson, 74 N.C. App. 256, 259, 328 S.E.2d 7, 9 (1985).

Having reviewed the record, we find no extraordinary circumstances and no showing that justice demands setting aside the order. Judge Ammons’ finding of fact that defendant’s answer and motion for jury trial were not timely filed is supported by competent substantial evidence. Defendant did not answer and request a jury trial until ten months after he was served with summons and the show cause order. We also note there was substantial competent evidence to support Judge Ammons’ determination of paternity. Judge Cherry erred in setting aside Judge Ammons’ order of 30 July 1992. The 24 September 1992 order is

Reversed.

Judge WYNN concurs. Judge GREENE concurs with separate opinion.