In Re Brown

208 S.E.2d 282 (1974) 23 N.C. App. 109

In the Matter of Virgil Ray BROWN.

No. 7418DC577.

Court of Appeals of North Carolina.

September 18, 1974.

No counsel for petitioner appellee.

David B. Smith, Greensboro, for respondent appellant.

PARKER, Judge.

No appeal having been taken from the prior orders, the only matter before this court for review is the order of 27 February 1974 which denied respondent's motions in which she sought relief from the 28 December 1973 order or, in the alternative, sought a new trial.

Respondent's motion for relief under Rule 60(b)(4), made on the ground that the prior order from which respondent sought relief was void, was properly denied. Clearly, the 28 December 1973 order was not void, since the court had jurisdiction over the parties and the subject matter and had authority to render the judgment entered.

Respondent's motion under Rule 60(b)(6), made on the ground that the prior order from which respondent sought relief was contrary to law, was also properly denied. Rule 60(b)(6) cannot be used as a substitute for appeal, 2 McIntosh, N.C. Practice and Procedure (Phillips Supp.1970) § 1720, and "an appeal from an order denying relief under 60(b) does not bring up for review the judgment from which relief is sought." 7 Moore's Federal Practice, § 60.30 [1].

Finally, respondent's motion for a new trial, made under Rule 59(a)(7), was addressed to the sound judicial discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). No abuse of discretion has been shown.

Although, as noted above, our appellate review in this case has been limited, a careful reading of the entire record reveals that the trial judge was conscientious in seeking to protect the rights of all parties, that he was concerned primarily with the welfare of the child, and that the orders entered were substantially in accordance with law.

Affirmed.

CAMPBELL and VAUGHN, JJ., concur.