Preview:

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA09-1071 NORTH CAROLINA COURT OF APPEALS Filed: 20 April 2010 ROCKINGHAM COUNTY DSS on behalf of BRITTANY W. STANLEY, Plaintiff, v. WILLIAM D. TATE, Defendant. Appeal by defendant from order entered 6 February 2009, nunc pro tunc 12 August 2008 by Judge Stanley Allen in Rockingham County District Court. Heard in the Court of Appeals 10 February 2010. Rockingham County No. 98 CVD 2183

Brumbaugh & Stroupe, PLLC, by Cathy R. Stroupe, for plaintiffappellee. Farver, Skidmore & McDonough, LLP, by Darren A. McDonough, for defendant-appellant. STEELMAN, Judge. Where this Court has vacated the order reinstating child support in Rockingham County DSS v. Tate, ___ N.C. App. ___, ___ S.E.2d ___ (March 2, 2010) (No. COA09-394), that order is no longer part of this action, and we must also vacate the order appealed from in this case. I. Factual and Procedural Background The On

This matter comes before this Court for a second time. underlying facts are set forth in Tate I and are not repeated.

-223 October 2008 nunc pro tunc 7 December 2007, the trial court entered an order which reinstated defendant's child support

obligation in the amount of $200.00 per month. to this Court.

Defendant appealed

On 6 February 2009, during the pendency of

defendant's first appeal, the trial court modified the 7 December 2007 order based upon a substantial change of circumstances and increased defendant's child support obligation to $516.00 per month in conformity with the North Carolina Child Support Guidelines. Defendant appeals the 6 February 2009 order. II. Analysis

In Tate I, this Court vacated the 7 December 2007 order. When something is "vacated," it is nullified and made void. Alford v. Shaw, 327 N.C. 526, 543 n.6, 398 S.E.2d 445, 455 n.6 (1990); see also Black's Law Dictionary 1584 (8th ed. 2004); Stewert v. Oneal, 237 F. 897, 906 (6th Cir. 1916) ("Vacate means to annul, set aside, or render void; suspend, to stay. When a thing is vacated it is devitalized"). Accordingly, "[o]nce [a] judgment [is] vacated, no part of it could thereafter be the law of the case." Alford, 327 N.C. at 543 n.6, 398 S.E.2d at 455 n.6. Pinewood Homes, Inc. v. Harris, 184 N.C. App. 597, 602, 646 S.E.2d 826, 830

Download 09-1071-5.pdf

South Carolina Law