Coleman v. Arnette

269 S.E.2d 755 (1980)

Judene S. (Arnette) COLEMAN v. Francis D. ARNETTE.

No. 8029DC79.

Court of Appeals of North Carolina.

September 16, 1980.

*756 Riddle, Shackelford & Hyler by John E. Shackelford, Asheville, for plaintiff-appellant.

Ramsey, White & Cilley by William R. White, Brevard, for defendant-appellee.

HARRY C. MARTIN, Judge.

This appeal was filed 153 days after notice of appeal was entered, violating Rule 12(a), North Carolina Rules of Appellate Procedure, and subjecting it to dismissal. In order to prevent manifest injustice, the Court in its discretion treats the appeal as a petition for review by certiorari and allows the petition.

Counsel for defendant and the trial court have misconceived the purposes of Rule 60(b)(6), N.C.R.Civ.Proc. Defendant seeks to amend the divorce judgment, not to be relieved of the judgment. N.C.G.S. 1A-1, Rule 59(e), governs amendments to judgments and requires that motions to alter or amend judgments be made within ten days after entry of the judgment. Defendant's motion to amend was not timely made.

Rule 60(a), N.C.R.Civ.Proc., permits correction of clerical mistakes in judgments. Rule 60(b) permits motions for relief from judgments for five specific reasons and for "[a]ny other reason justifying relief from the operation of the judgment." The judgment defendant seeks to amend does not control which party is entitled to claim the children as dependents for tax purposes. Defendant cannot achieve the result he desires by a motion under Rule 60(b)(6) to be relieved of the effect of the judgment.

We note that the order entered by the district court does not prohibit plaintiff from claiming the children as dependents for tax purposes; it merely allows defendant to do so. In any event, the determination of which parent is entitled to a dependency deduction in a given year is controlled by special rules of the Internal Revenue Code, I.R.C. § 152(e), and the North Carolina income tax law, N.C.G.S. 105-149(a)(5).

Defendant's motion is to amend the judgment. By the very words of the court's order, "be and the same are hereby amended," the district court attempted to amend the divorce judgment. The motion was not properly made pursuant to Rule 60(b)(6) and the court erred in so considering it. As a motion to amend, it comes too late. Plaintiff's motion to dismiss should have been allowed.

The order of 21 August 1979 is reversed, and this cause is remanded to the district court for the entry of an order dismissing defendant's motion of 6 April 1978.

Reversed and remanded.

MORRIS, C. J., and CLARK, J., concur.