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Domestic Relations – DVPO – Unsigned – Motion for Relief – Attendant Relief Orders

Edwards v. Cole (Lawyers Weekly No. 012-031-17, 15 pp.) (Linda McGee, C.J.) Appealed from Alexander County District Court (Edward Hedrick IV, J.) N.C. App. Unpub.

Holding: While the trial judge (1) orally reviewed portions of a consent domestic violence protective order with plaintiff and defendant (who was proceeding pro se at the time) in open court, (2) concluded, “It seems … like a reasonable agreement,” and (3) said, “I’m going to sign this,” a trial judge’s comments during a hearing are not controlling; the written order as entered is controlling. Since the trial judge never signed the DVPO, the DVPO was never entered, and defendant was entitled to relief under N.C. R. Civ. P. 60(b).

We vacate the district court’s denial of defendant’s Rule 60(b) motion.

Like other orders, a DVPO is “entered” when it is reduced to writing, signed by the judge and filed with the clerk of court. A judgment is not enforceable between the parties until it is entered. In the context of a consent order, a party may withdraw consent prior to entry of judgment, in which case the trial court is without power to sign the judgment.

Because the DVPO was not signed, it was not entered, it remained unenforceable, and there was no final judgment from which defendant could appeal.

Although the trial judge did not sign the final page of the DVPO, he did sign both a temporary child custody addendum and a memorandum of judgment/order dividing certain personal property between the parties. These are types of relief that G.S. § 50B-3(a) permits a DVPO to include; however, the trial judge lacked jurisdiction to “enter” specific statutory relief which must accompany a valid and enforceable DVPO.

Vacated.


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