NO. COA02-514

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2003

    Appeal by defendant from judgment entered 10 October 2001 by Judge Robert E. Hodges in Catawba County District Court. Heard in the Court of Appeals 8 January 2003.

    John Cutchin and Steve Dolley, Jr. for plaintiff-appellee.

    Matthews Law Firm by Scott A. Matthews for defendant- appellant.

    STEELMAN, Judge.

    Defendant, Patricia Ann Hoffman Boyd, appeals an order granting plaintiff's motion for summary judgment and dismissing her counterclaims and further defenses. We affirm.
    Defendant and plaintiff, Ricky Lynn Boyd, were married on 8 May 1998. On 30 October 1999, the parties separated. On or about 5 November 1999, the parties entered into a Separation and Property Settlement Agreement. On 11 July 2000, defendant recorded the agreement in the Office of the Register of Deeds for Catawba County in order to facilitate a real estate purchase. Subsequently,defendant pled the agreement as the basis of a counterclaim in another action in the District Court of Catawba County (00 CVS 3156).
    On 7 November 2000, plaintiff filed this action seeking an absolute divorce based on a one year separation. Defendant filed an answer asserting an affirmative defense that she executed the agreement under duress. She also asserted the following counterclaims: (1) fraud and undue influence; (2) punitive damages; (3) notice of lis pendens; (4) post-separation support and alimony; (5) equitable distribution; and (6) attorney fees.
    Plaintiff replied to defendant's answer, asserting that defendant's claims were barred by acts of defendant which ratified the agreement. Plaintiff moved for summary judgment under Rule 56 of the North Carolina Rules of Civil Procedure. This motion was granted on 8 October 2001, dismissing defendant's defenses and counterclaims.
    Defendant first assigns as error that the trial court erroneously granted summary judgment for plaintiff based upon defendant's ratification of the agreement.
    Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to ajudgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001).
    Parties to a marriage may, by written agreement, forego their statutory right to equitable distribution and decide between themselves how their marital estate will be divided following divorce. N.C. Gen. Stat. § 50-20(d) (2001). Separation agreements are treated as contracts and subject to the same rules enforcing and protecting contracts. Haynes v. Haynes, 45 N.C. App. 376, 263 S.E.2d 783 (1980). To be valid, a separation agreement must be without fraud, reasonable, fair and just, and, entered into without coercion or the exercise of undue influence with full knowledge of all the circumstances, conditions, and rights of the contracting parties. McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).
    A transaction procured by fraud, duress, or undue influence may be ratified by the victim so as to preclude a subsequent suit to set the transaction aside. Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). Ratification occurs when a party retroactively authorizes or otherwise approves of it, either expressly or by implication. Goodwin v. Webb, ___ N.C. App. ___, 568 S.E.2d 311 (2002).
    In Lowry v. Lowry, 99 N.C. App. 246, 393 S.E.2d 141 (1990), this Court found ratification where a party executed a separationagreement, incorporated it into a consent judgment, and received benefits under the agreement for three years. In Hill v. Hill, 94 N.C. App. 474, 380 S.E.2d 540 (1989), summary judgment was affirmed based upon ratification where the plaintiff continued to accept the benefits under a separation agreement long after she discovered the alleged wrongdoing of the defendant.
    In the instant case, defendant unequivocally ratified the agreement on at least two separate occasions. On 11 July 2000, she recorded it in the office of the register of deeds. In addition, she affirmatively pled the agreement in the Catawba County District Court in case number 00 CVS 3156 as the basis of a counterclaim against plaintiff. Defendant further benefitted by receiving and using all household and kitchen furniture and a 1997 Toyota Land Cruiser, pursuant to the agreement. The trial court properly granted summary judgment in favor of plaintiff on the issue of ratification.
    By her second assignment of error, she argues the trial court erred in upholding the separation agreement because there were material issues as to whether it was: (1) improperly procured by false and misleading statements; (2) signed as a result of her being under duress; and (3) procedurally and substantively unconscionable. Once a party ratifies an agreement, that party is estopped from denying its authority. Pulley v. Pulley, 255 N.C.423, 121 S.E.2d 876 (1961), dismissed, 371 U.S. 22, 9 L. Ed. 2d 96 (1962). This assignment of error is overruled.
    AFFIRMED.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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