Home Health and Hospice Care v. Meyer

362 S.E.2d 870 (1987)

HOME HEALTH AND HOSPICE CARE, INC., and Charles H. Harrell v. Robert S. MEYER, Carol Dilda, Beverly Withrow, and Home Health and Hospice Care I, Ltd.

No. 878SC503.

Court of Appeals of North Carolina.

December 22, 1987.

*872 Barnes, Braswell, Haithcock & Warren, P.A. by R. Gene Braswell, Goldsboro, for plaintiffs-appellees.

R. Michael Bruce, Goldsboro, for defendants-appellants.

HEDRICK, Chief Judge.

Assuming, as the parties do, that the paper writing signed by the judge and consented to by the parties on 30 June 1986 and called "Memorandum of Judgment Settlement" is a "consent judgment," we hold the trial court had no authority pursuant to the "motion in the cause" to interpret or construe the "consent judgment," and the order entered 16 February 1987 must be vacated.

Defendants did not place the number of the rule pursuant to which the motion of 13 November 1986 ("motion in the cause") was filed in violation of G.S. 1A-1, Rule 7(b)(1) which requires that the grounds for the motion must be stated. While failure to give the number of the rule is not necessarily fatal, it would be of great benefit to the trial court and this appellate court for counsel to name and number the rule pursuant to which the motion is made. Rule 60 is, of course, the *873 rule pursuant to which a party must move to attain relief from a judgment. Defendant's motion is surely not made pursuant to Rule 60. Although defendants made the motion to obtain a construction of the "consent judgment," they are now satisfied to have the order entered pursuant thereto vacated since the court did not construe the "consent judgment" in the manner they desired. Plaintiffs, on the other hand, at oral argument, contended the order entered pursuant to the motion is something in the nature of an action for a declaratory judgment and that the court had authority to enter its order pursuant to G.S. 1-253. We disagree. A declaratory judgment is a separate and independent action to have the court "declare rights, status, and other legal relations, whether or not further relief is or could be claimed." G.S. 1-253. A declaratory judgment action may not be commenced by a motion in the cause, any more than can an action to modify or reform a consent judgment. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956). Whether the "Memorandum of Judgment Settlement" is such an instrument as the court might construe and interpret rights of parties pursuant to declaratory judgment proceedings under G.S. 1-253 is not a question we need now consider or decide. Whether the "Memorandum of Judgment Settlement" is a judgment enforceable in any way need not be decided at this time; however, with respect to whether a civil judgment may be enforced by a contempt proceeding see In re Will of Smith, 249 N.C. 563, 107 S.E.2d 89 (1959). Since the trial court, as we have already said, had no authority to construe or interpret pursuant to defendants' motion in the cause, it is neither necessary nor desirable that we consider whether the judge's interpretation was correct. Because we are vacating the order appealed from, we need not consider any proceedings following the entry of such order.

Further proceedings in this matter, if any, must emanate from the fertile imagination of counsel.

Vacated.

BECTON, J., concurs in the result only.

GREENE, J., concurs.