Vandooren v. Vandooren

218 S.E.2d 715 (1975) 27 N.C. App. 279

Sarah P. VANDOOREN
v.
Peter VANDOOREN.

No. 753DC547.

Court of Appeals of North Carolina.

October 15, 1975.

Wheatly & Mason, P. A., by L. Patten Mason, Beaufort, for plaintiff appellant.

Sherman T. Rock, Morehead City, for defendant appellee.

CLARK, Judge.

Plaintiff's only assignment of error is that the court erred by amending on its own motion the original pendente lite order to provide that the guest house rental be credited against alimony, on the grounds of mistake in the original order.

G.S. 50-16.9 provides that "An order... for alimony or alimony pendente lite ... may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested...." The judge entered findings of fact that defendant's income during the eighteen-month period had increased but that he was not entitled to modification of the original order on the grounds of change of circumstance.

In Rabon v. Ledbetter, 9 N.C.App. 376, 176 S.E.2d 372 (1970), the court held that a court is not warranted in modifying or changing a prior valid order absent a showing of a change in conditions.

The basis for the court's change in the original order is that "upon examination of the trial notes and upon the personal recollection, it appears to the trial Judge that he intended for the Defendant to have credit for the rentals on the guest cottage..." The court then found as a fact that said credit was omitted from the original order by mistake.

At the hearing, more than five months before the amending order was entered, defendant did not contend that there was any error or mistake in the original order; nor is there anything in the record relating to said hearing to indicate that the trial judge then considered that there was error in or misunderstanding about the provisions of the original order.

This was an apparent attempt to amend the order pursuant to Rule 60 of the North Carolina Rules of Civil Procedure. However, we find that neither Rule 60(a) nor 60(b) justifies such a decision by the court. While courts have always had the inherent authority to correct clerical errors or errors of expression in a judgment, they have never been deemed to have the authority, outside of a term, to correct an error in decision, or to amend a judgment so as to adversely affect the rights of third parties. H & B Company v. Hammond, 17 N.C.App. 534, 195 S.E.2d 58 (1973).

We find that the court in this case did not correct a mistake but changed a judgment. The amending order appealed from is vacated and this cause is remanded to the District Court.

Vacated and Remanded.

PARKER and VAUGHN, JJ., concur.