IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1062
Filed: 17 May 2016
Harnett County, No. 14 CVD 1578
MACK DEVAUGHN POPE, Plaintiff,
v.
DAWN WRENCH POPE, Defendant.
Appeal by plaintiff from order entered 8 April 2015 by Judge R. Dale Stubbs in
Harnett County District Court. Heard in the Court of Appeals 9 February 2016.
Daughtry, Woodard, Lawrence & Starling, by Kelly K. Daughtry, for plaintiff-
appellant.
The Armstrong Law Firm, P.A., by Eason Armstrong Keeney, L. Lamar
Armstrong, III, and Marcia H. Armstrong, for defendant-appellee.
BRYANT, Judge.
Where a trial judge has authority to grant Rule 60(b) relief without offending
the rule that precludes one trial judge from overruling the judgment of another, we
affirm the order of the trial court.
Mack Devaughn Pope, plaintiff-husband, and Dawn Wrench Pope, defendant-
wife, were married on 25 October 2000. Two children born of the marriage currently
reside with defendant-wife.
The parties separated on 12 May 2014. On 12 August 2014, plaintiff-husband
filed a Complaint seeking a Domestic Violence Protective Order (“DVPO”) against
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Opinion of the Court
defendant-wife. On 14 August 2014, defendant-wife filed a DVPO Complaint against
plaintiff-husband. Both parties obtained ex parte DVPOs, and a hearing for both
DVPOs was set for 30 September 2014.
Defendant-wife did not appear for the 30 September 2014 DVPO hearings
scheduled on both DVPO Complaints and the Honorable Jimmy L. Love, Jr., Judge
presiding, dismissed defendant-wife’s DVPO Complaint.1 Judge Love proceeded with
the hearing on plaintiff-husband’s DVPO Complaint. Judge Love found that
defendant-wife had committed acts of domestic violence by harassing, following, and
yelling at plaintiff-husband, and that the DVPO was warranted for a period of one
year in order to alleviate plaintiff-husband’s fear of imminent serious bodily injury
and continued harassment. Defendant-wife was served with the DVPO that same
day, on 30 September 2014.
Plaintiff-husband continued to contact defendant-wife after his DVPO was
entered against her. Plaintiff-husband showed up at defendant-wife’s house, both
when the children were present and when they were not. He also required defendant-
wife to meet him at gas stations to fill her truck up with gas rather than giving her
the funds to do so. According to defendant-wife, plaintiff-husband continued to call
her “quite often” and also “yell” and “cuss” at her.
1 Defendant-wife later testified that plaintiff-husband told her he was not going to the hearing
and was going to have his DVPO complaint dropped. Defendant-wife claims she relied on plaintiff-
husband’s assurances and believed him because in a prior matter, plaintiff-husband dropped criminal
assault charges against her after promising to do so.
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On 2 December 2014, defendant-wife filed a second DVPO Complaint, alleging
that plaintiff-husband was repeatedly coming by her residence and threatening to
force her to leave the residence. Defendant-wife obtained an ex parte DVPO and the
matter was set to be heard on 9 December 2014. Meanwhile, on 4 December 2014,
plaintiff-husband filed a motion to correct the DVPO entered 30 September 2014
based on a clerical error: Judge Love set the effective date through 30 September 2014
rather than 30 September 2015. The hearing on 9 December 2014 was held before
the Honorable Robert W. Bryant, Jr., who concluded that the “evidence does not
support or provide grounds for [defendant-wife’s] DVPO.”
Three months later, on 13 March 2015, defendant-wife filed a Rule 60 Motion
for relief from the 30 September 2014 order granting plaintiff-husband’s DVPO and
from the 9 December 2014 order denying her DVPO, alleging (1) that she did not
appear at the hearing before Judge Love because plaintiff fraudulently told her he
was dismissing the DVPO Complaint; and (2) that incidents occurring since entry of
the DVPO showed plaintiff-husband was not afraid of defendant-wife. A hearing was
held on 7 April 2015 before the Honorable R. Dale Stubbs, Judge presiding. After
hearing evidence from both parties and argument from counsel, Judge Stubbs set
aside Judge Love’s 30 September 20142 DVPO based on his conclusion that it was “no
2 Judge Stubbs’s order referred to “a DVPO entered against [plaintiff-wife] and amended on
12-9-14.” As the order entered 30 September 2014 was the only DVPO “amended” to correct a clerical
error, it is clear this is the order to which Judge Stubbs refers.
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longer equitable that the [DVPO] should have future application” and that there was
“good reason justifying relief from the [DVPO]” because “the harassment has been on
both sides” and plaintiff-husband was not afraid of defendant-wife. Plaintiff-husband
filed his notice of appeal of Judge Stubbs’s order on 8 April 2015.
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On appeal, plaintiff-husband argues that (I) the trial court could not properly
reconsider another trial court’s decision that plaintiff-husband was a victim of
domestic violence; (II) the trial court abused its discretion in setting aside the DVPO
based on Rule 60(b)(5); and (III) there is otherwise no basis for this Court to affirm
the set-aside order.
I
Plaintiff-husband first argues that Judge Stubbs could not properly revisit the
findings supporting Judge Love’s decision that plaintiff-husband was a victim of
domestic violence absent grounds to do so under Rule 60(b) of the North Carolina
Rules of Civil Procedure. Specifically, plaintiff-husband argues that, in granting
defendant-wife’s 60(b) motion, Judge Stubbs improperly reviewed or reconsidered
Judge Love’s original decision granting the DVPO. We disagree.
A motion for relief from a final order made pursuant to Rule 60(b) is within the
sound discretion of the trial court, and the trial court’s decision will not be disturbed
absent: (1) an abuse of discretion; and/or (2) a trial court’s “misapprehension of the
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Opinion of the Court
appropriate legal standard” for ruling on a Rule 60(b) motion. Anuforo v. Dennie, 119
N.C. App. 359, 361, 458 S.E.2d 523, 525 (1995) (citations omitted). As to the former,
“[a] trial court may be reversed for abuse of discretion only upon a showing that its
actions are manifestly unsupported by reason . . . [or] upon a showing that [the trial
court’s discretion] was so arbitrary that it could not have been the result of a reasoned
decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal
citation omitted). Further, findings of fact made by the trial court upon a Rule 60(b)
motion are binding on appeal if supported by any competent evidence. Kirby v.
Asheville Contracting Co., 11 N.C. App. 128, 132, 180 S.E.2d 407, 410 (1971) (citations
omitted).
Rule 60(b) states, in pertinent part, as follows:
On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final
judgment, order, or proceeding for one of the following
reasons:
...
(5) The judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application; or
(6) Any other reason justifying relief from the
operation of the judgment. . . .
N.C. Gen. Stat. § 1A-1, Rule 60(b)(5), (6) (2015).
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Plaintiff-husband argues that Judge Stubbs could not properly revisit Judge
Love’s findings—namely that plaintiff-husband feared he would be physically injured
by defendant-wife and that plaintiff-husband was significantly distressed by the
prospect of relentless torment—because it is “[t]he well established rule in North
Carolina . . . that no appeal lies from one judge to another; . . . and that ordinarily
one judge may not modify, overrule, or change the judgment of another . . . judge
previously made in the same action.” Calloway v. Ford Motor Co., 281 N.C. 496, 501,
189 S.E.2d 484, 488 (1972) (citations omitted). As such, “ ‘[a] judge of the District
Court cannot modify a judgment or order of another judge of the District Court’ absent
a showing of mistake, inadvertence, fraud, newly discovered evidence, satisfaction, or
that the judgment is void.” Duplin Cnty. DSS ex rel. Pulley v. Frazier, 230 N.C. App.
480, 481, 751 S.E.2d 621, 623 (2013) (quoting Town of Sylva v. Gibson, 51 N.C. App.
545, 548, 277 S.E.2d 115, 117 (1981)). For the reasons stated below, plaintiff-
husband’s argument is misguided.
Rule 60(b) does not offend the rule which states that “one [trial] judge may not
ordinarily . . . overrule . . . the judgment or order of another [trial] judge . . . .” Id.
(quoting In re Royster, 361 N.C. 560, 563, 648 S.E.2d 837, 840 (2007)). Indeed, “[a]
60(b) order does not overrule a prior order but, consistent with statutory authority,
relieves parties from the effect of an order.” Van Engen v. Que Scientific, Inc., 151
N.C. App. 683, 690, 567 S.E.2d 179, 184 (2002) (emphasis added) (quoting Charns v.
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Brown, 129 N.C. App. 635, 639, 502 S.E.2d 7, 10 (1998)). Thus, “a [trial] [c]ourt
judge[3] may grant relief from the decision of another judge on a Rule 60(b) motion.”
Trent v. River Place, LLC, 179 N.C. App. 72, 79, 632 S.E.2d 529, 534 (2006) (citation
omitted); Hieb v. Lowery, 121 N.C. App. 33, 38, 464 S.E.2d 308, 311–12 (1995) (“[A]
[trial] court judge has authority to grant relief under a [Rule 60](b) motion without
offending the rule that precludes one [trial] court judge from reviewing the decision
of another.” (citation omitted)); Hoglen v. James, 38 N.C. App. 728, 731, 248 S.E.2d
901, 904 (1978) (vacating and remanding where a judge erroneously believed he
lacked the power to grant the relief requested in a 60(b) motion because he believed
he did “ ‘not have authority to pass upon or reconsider’ ” another judge’s order).
Furthermore, a trial judge commits reversible error by denying a Rule 60(b)
motion because the judge believes it should be heard by the judge who entered the
order from which relief is sought. Trent, 179 N.C. App. at 78–79, 632 S.E.2d at 534;
Hoglen, 38 N.C. App. at 731, 248 S.E.2d at 904. As such, “[w]here a judge refuses to
entertain such a motion because he labors under the erroneous belief that he is
without power to grant it, then he has failed to exercise the discretion conferred on
3 Many cases refer to “Superior Court” judges in this context as most 60(b) appeals are from
Superior Court. However, as “District Court” judges are able to hear 60(b) motions, cases analyzing
the trial court’s ability to grant relief under 60(b) should be equally applicable to a District Court
judge’s ability to do the same. Cf. Duplin Cnty. DSS ex rel. Pulley v. Frazier, 230 N.C. App. 480, 481,
751 S.E.2d 621, 623 (2013) (reviewing appeal from district court’s 60(b) order and noting that a district
court’s setting aside an order based on one of the grounds in Rule 60(b) does not “overrule” a prior
order).
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him by law.” Trent, 179 N.C. App. at 79, 632 S.E.2d at 534 (internal quotation marks
and citation omitted).
Rule 60(b) is the proper vehicle by which a trial court may grant relief from
DVPOs. When defendant-wife filed her Rule 60 motion to set aside the DVPO on 13
March 2015, Judge Stubbs was required to hear the motion—which he did on 7 April
2015—and exercise the “discretion conferred on him by law” by either granting or
denying the motion. When Judge Stubbs granted defendant-wife’s motion to set aside
the DVPO concluding that it was “no longer equitable,” his order was made using the
form provided by the Administrative Office of the Courts (“AOC”) specifically for
orders setting aside DVPOs. The form is titled “Order Setting Aside Domestic
Violence Protective Order,” with the supporting statute listed under the title as “G.S.
1A-1: Rule 60(b).” Accordingly, Judge Stubbs was not re-litigating the issue, but
rather was acting lawfully by hearing and granting the motion. Therefore, plaintiff-
husband’s argument is overruled.
II
Plaintiff-husband next argues that the trial court abused its discretion in
setting aside the DVPO. Specifically, plaintiff-husband contends the trial court
abused its discretion in granting defendant-wife’s Rule 60(b) Motion, sua sponte,
under Rule 60(b)(5), where defendant-wife moved for relief under Rule 60(b)(6). We
disagree.
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“The purpose of Rule 60(b) is to strike a proper balance between the conflicting
principles of finality and relief from unjust judgments.” Carter v. Clowers, 102 N.C.
App. 247, 254, 401 S.E.2d 662, 666 (1991) (citing 9 C. Wright & A. Miller, Federal
Practice and Procedure § 2851 (1971)). “Rule 60(b) is an unusual rule, having been
described as ‘a grand reservoir of equitable power.’ ” Id. at 253, 401 S.E.2d at 665
(quoting Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 712, 222 S.E.2d 706,
708 (1976)). As such, while “the usual method for seeking relief under Rule 60(b) is
by filing a motion. . . . other means may be sufficient.” Id. For instance, a trial court
may even act sua sponte to grant relief under Rule 60(b), even where a party has not
moved for relief under that rule. Id. (“[N]omenclature is unimportant, moving papers
that are mislabeled in other ways may be treated as motions under Rule 60(b) when
relief would be proper under that rule.” (citation omitted)); see also Hieb, 121 N.C.
App. at 38, 464 S.E.2d at 311.
Further, a Rule 60(b) movant need not specify under which subpart of Rule
60(b) relief is sought. Sides v. Reid, 35 N.C. App. 235, 237, 241 S.E.2d 110, 111 (1978)
(“If a movant is uncertain whether to proceed under clause (1) or (6) of Rule 60(b), he
need not specify if his motion is timely and the reason justifies relief.” (citation
omitted)). Likewise, the trial court need not set aside a final judgment under the
subpart specified by the movant. Id. It follows, then, that if a trial court may set
aside a DVPO sua sponte, absent a party’s motion under Rule 60(b) entirely, and a
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Rule 60(b) movant need not specify under which subsection it seeks relief, a trial court
may set aside a DVPO pursuant to Rule 60(b)(5), even where a party moved for relief
pursuant to Rule 60(b)(6) or another subsection.
Plaintiff-husband argues that there is no case which specifically supports
granting relief from a DVPO under Rule 60(b)(5). However, “[o]n motion and upon
such terms as are just, a court may relieve a party from a judgment if, among other
reasons, it is no longer equitable that the judgment have prospective application.”
Buie v. Johnston, 313 N.C. 586, 589, 330 S.E.2d 197, 199 (1985) (citing N.C.G.S. § 1A-
1, Rule 60(b)(5)). Rule 60(b)(5) allows relief from a judgment when “it is no longer
equitable that the judgment should have prospective application . . . .” N.C.G.S. § 1A-
1, Rule 60(b)(5). That is exactly what the trial court determined.
Here, the trial court relied on competent evidence to support its conclusion that
plaintiff-husband was no longer afraid of defendant-wife. After the DVPO was
entered in September 2014, plaintiff-husband continued to call defendant-wife, show
up at her house “almost every day,” and require defendant-wife to meet him at gas
stations to fill up her truck with gas rather than provide her with the funds to do so
independently. Judge Stubbs properly made specific findings of fact that plaintiff-
husband no longer feared defendant-wife.
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Accordingly, the decision to set aside the DVPO under Rule 60(b)(5) was
supported by findings of fact and was proper. Plaintiff-husband’s argument is
overruled.
Furthermore, as we have already held there was no error in setting aside the
DVPO, and plaintiff-husband’s third and final argument on appeal is essentially an
alternative one, namely that there is otherwise no basis for this Court to affirm the
set-aside order, we need not address it. The order of the trial court setting aside the
30 November 2014 DVPO is
AFFIRMED.
Judges DILLON and ZACHARY concur.
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