Appeal by plaintiff from order entered 28 May 2002 by Judge
Peter L. Roda, in Buncombe County District Court. Heard in the
Court of Appeals 7 October 2003.
William E. Loose for plaintiff-appellant.
Robert E. Riddle, for defendant-appellant.
LEVINSON, Judge.
Plaintiff appeals from the trial court's denial of her Rule 60
motion to set aside a consent judgment. We affirm.
The relevant facts may be summarized as follows: Plaintiff
(Janet Young) and defendant (Paul Young) were married in 1958,
separated in 2000, and were divorced in 2001. In April, 2000, each
party obtained an ex parte domestic violence protection order
against the other, pursuant to N.C.G.S. ch. 50B (2001). On 2 May
2000 plaintiff filed a complaint seeking equitable distribution,
preliminary distribution, and a separate restraining order and
preliminary injunction pertaining to marital property. On 8 May
2000 the parties appeared with their respective counsel for
hearings on the chapter 50B cross-complaints. Prior to the 8 May court date, defendant through counsel made
a settlement offer to plaintiff in the form of a proposed
separation agreement awarding plaintiff three million dollars in
marital assets. Plaintiff rejected defendant's first offer;
however, when the parties were in court on 8 May 2000, they
undertook negotiations for a property settlement, again through
their respective counsel. The record indicates that the parties
went “back and forth” with “offers and counteroffers” until an
agreement was reached. The parties and counsel then returned to
the courtroom and informed the trial judge that they had reached an
agreement that would resolve not only the matters originally
scheduled for that day, but also the disposition of marital assets
and all other property issues arising from their separation and
divorce. The agreement was that: (1) both parties would drop their
50B claims against each other; (2) plaintiff would receive
property, cash, and other assets totaling 4.5 million dollars; and
(3) defendant would receive the balance of the marital estate.
Plaintiff's attorney read the terms of the agreement into the
record. At the time the parties were in court, they had not
conducted a formal valuation of assets. Accordingly, while the
agreement as read into the record specified the property that
plaintiff would receive and that its total value was 4.5 million
dollars, plaintiff's attorney then “announced that the remaining
assets would be awarded to the Defendant,” without listing the
specific items the defendant would receive. Thereafter, each party
was “sworn by the Court and testified from the witness stand that[he or she] heard counsel read the terms of the settlement and that
[he or she] did in fact understand the terms and conditions of the
settlement and that it was in fact their agreement.” The terms
were not reduced to writing during this hearing.
Following the 8 May 2000 hearing, plaintiff's attorney reduced
the agreement to writing as a proposed consent judgment and
submitted the same to the presiding judge for signature. The
proposed consent judgment was signed by both parties and their
respective attorneys. As announced in court, the consent judgment
set out the property that plaintiff was to receive, totaling 4.5
million dollars, and also stipulated that “all other assets owned
by the parties . . . [would] be distributed to Defendant[.]” The
consent judgment was signed by the trial court on 24 May 2000.
As evidenced by their signatures, the parties consented to a
Qualified Domestic Relations Order (QDRO) on 29 December 2000. In
addition, on 12 March 2001, the parties executed an Amended Consent
Judgment to effectuate transfer of plaintiff's interest in a time-
share condominium in Mexico. The amended judgment stated that
“[e]xcept as amended [herein], all other provisions of the consent
Judgment dated May 24, 2000, shall remain in full force and
effect.”
On 8 February 2002 plaintiff filed a motion under N.C. R. Civ.
P. 60 asking the court to set aside the consent judgment.
Plaintiff's motion alleged in relevant part that the consent
judgment (1) was void because it “recites materials and events that
never occurred” in that “[t]he terms of the document were neverreviewed by the court with the parties,” and that it (2) included
terms “that were never discussed between the parties at the time
they all met at the courthouse.”
(See footnote 1)
A hearing was held on plaintiff's motion on 16 May 2002.
Plaintiff testified that at the 8 May 2000 hearing, two years
earlier, she had been in a “state of shock”; that her attorney had
not explained the agreement to her; that she was never informed
that the agreement was a full and final settlement of marital
property rights; and that she had thought the 4.5 million dollar
settlement merely resolved her claims against defendant for assault
and for having her involuntarily committed. She also testified she
signed the consent judgment and associated documents only because
her attorney's paralegal had threatened her with the possibility of
contempt of court if she refused. On cross-examination, plaintiff
conceded that she had done the bookkeeping for the marital
businesses, that she had executed both the original consent
judgment and the amended judgment, and that by signing the amended
consent judgment she was “acknowledging and ratifying the original
judgment[.]” She acknowledged that she had received all the assets
specified in the agreement; that at the time the agreement was
reached her attorney had shown her a list of the marital property
she would receive; and that she had accepted cash payments tendered
by defendant pursuant to the agreement. She also agreed that herattorney had announced the terms of the agreement in open court;
that the trial court had questioned her under oath as to her
understanding of the terms of the agreement; and that she had asked
several questions in court to clarify certain points. On 6 June
2002, the trial court entered an order denying plaintiff's motion
to set aside the consent judgment. From this order plaintiff
appeals.
Plaintiff appeals from the denial of her motion, made under
Rule 60, to set aside a consent judgment. “A consent judgment is
a contract of the parties that may be sanctioned and entered upon
the records of a court[.]” Chance v. Henderson, 134 N.C. App. 657,
661, 518 S.E.2d 780, 782 (1999) (citing Highway Comm. v. Rowson, 5
N.C. App. 629, 631, 169 S.E.2d 132, 134 (1969)). “The authority of
a court to sign and enter a consent judgment depends upon the
unqualified consent of the parties thereto, and the judgment is
void if such consent does not exist at the time the court sanctions
or approves the agreement of the parties and promulgates it as a
judgment.” Hill v. Hill, 97 N.C. App. 499, 501, 389 S.E.2d 141,
142 (1990) (citation omitted). A consent judgment entered in a
domestic case is treated as an order of the court. Walters v.
Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983) (“[C]ourt
ordered separation agreements, as consent judgments, are
modifiable, and enforceable by the contempt powers of the court, in
the same manner as any other judgment in a domestic relations
case”). Plaintiff moved to set aside the consent judgment under Rule
60(b), which provides in pertinent part:
(b) . . . On motion and upon such terms as are
just, the court may relieve a party . . . from
a final judgment, order, or proceeding for the
following reasons: . . .
1. Mistake, inadvertence, surprise, or
excusable neglect;
2. Newly discovered evidence. . . .
3. Fraud . . . misrepresentation, or other
misconduct of an adverse party;
4. The judgment is void; . . . .
5. The judgment has been satisfied. . . or
6. Any other reason justifying relief from the
operation of the judgment.
The motion shall be made within a reasonable
time. . . .
“The person who challenges the validity of a consent judgment,
bears the burden of proof to show that it is invalid.” Milner v.
Littlejohn, 126 N.C. App. 184, 187, 484 S.E.2d 453, 456 (citing In
re Johnson, 277 N.C. 688, 696, 178 S.E.2d 470, 475 (1971)), disc.
review denied, 347 N.C. 268, 493 S.E.2d 458 (1997). “If there is
'competent evidence of record on both sides' of the Rule 60(b)
motion, it is the duty of the trial court to evaluate such
evidence.” Blankenship v. Town & Country Ford, Inc., 155 N.C. App.
161, 165, 574 S.E.2d 132, 134 (2002) (quoting Sawyer v. Goodman, 63
N.C. App. 191, 193, 303 S.E.2d 632, 634, disc. review denied, 309
N.C. 823, 310 S.E.2d 352 (1983)), appeal dismissed, disc. review
denied, 357 N.C. 61, 579 S.E.2d 384 (2003). “Upon hearing of a
Rule 60 motion, the findings of fact by the trial court are
conclusive on appeal if supported by any competent evidence.”
Gentry v. Hill, 57 N.C. App. 151, 154, 290 S.E.2d 777, 779 (1982)
(citing Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962)). Moreover, the trial court's ruling on a Rule 60(b) motion is
“'addressed to the sound discretion of the trial court' and the
court's ruling will not be disturbed without a showing that the
court abused its discretion.” Danna v. Danna, 88 N.C. App. 680,
686, 364 S.E.2d 694, 698 (quoting Sink v. Easter, 288 N.C. 183,
198, 217 S.E.2d 532, 541 (1975)), disc. review denied, 322 N.C.
479, 370 S.E.2d 221 (1988).
On appeal, plaintiff argues that the trial court erred by
denying her motion to set aside the consent judgment. Plaintiff
claims that, based upon the holding in
Tevepaugh v. Tevepaugh, 135
N.C. App. 489, 521 S.E.2d 117 (1999), the consent judgment was void
and must be vacated. Plaintiff's argument is based upon her
interpretation of the consent judgment's finding of fact number 26,
which
states that:
26. The agreement of the parties as set forth
herein was read into the record in open Court
and the Court made inquiry of each of the
parties, under oath, as to their stipulation
and agreement to the terms and conditions set
forth herein, whereupon each of the parties
acknowledged their stipulation and agreement
to the terms and conditions set forth herein
and their desire that the Court enter this
Consent Order.
Plaintiff contends that the proceedings described in finding of
fact number 26 did not occur and that, for that reason, the entire
consent judgment is void. We disagree.
In
Tavepaugh, the parties executed a memorandum of judgment,
using Administrative Office of the Courts (AOC) Form CV-220. This
preprinted form contained the following language:
Prior to accepting the stipulated agreement of
the parties, the undersigned judge read the
terms of the above stipulations and agreements
to the parties, and made careful inquiry of
them with regards to the voluntary nature of
their agreement and their understanding
thereof. The court explained to the parties
the legal effect of their stipulations and
agreements and determined that the parties
understood the legal effect and terms of the
agreement and stipulations. The parties
acknowledged their voluntary execution of the
agreements and stipulations, stated that the
terms accurately reflected their agreement,
and agreed of their own free wills to abide by
them.
Id. at 490, 521 S.E.2d at 119. The record in
Tevepaugh established
that these proceedings had not occurred: the trial court had not
“made careful inquiry of [the parties] with regards to the
voluntary nature of their agreement and their understanding
thereof” and had not “explained to the parties the legal effect of
their stipulations and agreements and determined that the parties
understood the legal effect and terms of the agreement and
stipulations.” On appeal, this Court held that the language in the
AOC form imposed upon the trial court an obligation to determine
whether the parties understood the legal implications of the
agreement, and that “the judge was not to sign [the order] until he
had reviewed it with the parties and each of them had acknowledged
they understood the legal effect of the Agreement.”
Id. at 493,
521 S.E.2d at 120
. Significantly, this Court also noted that:
the conclusion of the trial court that
Defendant understood, or reasonably should
have understood, the terms and provisions of
the Agreement is simply not supported by the
findings of fact or the evidence in this
record. . . . Defendant did not understand
the finality of the provisions [of theAgreement] relating to child custody,
visitation, etc., and thought that those
matters would be resolved in a separate,
typewritten document.
Id. at 493, n5, 521 S.E.2d at 121, n5. Thus, in
Tevepaugh the
record showed that a condition precedent to the court's signing of
the order had not occurred (ensuring the parties understood the
legal effect of the agreement),
and that the defendant was
prejudiced as a result. Accordingly, the order was vacated.
P
laintiff contends that finding of fact number 26 in the
consent judgment is the equivalent of the language at issue in
Tevepaugh, and dictates the same result. She asserts that
finding
of fact number 26 in the consent judgment
“created absolute duties
upon the court to review the document with the parties” at the time
of the trial court's signing of the judgment. On this basis
plaintiff contends that, because the court did not review the legal
implications of the consent judgment with the parties on the day
that the court signed the judgment, that it is void as a matter of
law. We disagree.
Paragraph 26 differs from the relevant language in the AOC
form used in
Tavepaugh. First, in the instant case, the language
did not place an affirmative duty on the trial court to determine
whether the parties understood the legal consequences of the
provisions in the proposed consent judgment. Second, the record is
uncontroverted that, in fact, the court did that which was recited
in paragraph 26. We are unpersuaded that finding of fact number 26
should be interpreted to mean that the reading into the record must
occur at the same time, or on the same day, that the trial courtsigns the formal order. Such an interpretation would not be
reasonable; as a practical matter, orders are usually drafted and
signed some time after a court appearance. Third, though not
essential to our holding, we note that
in general, the trial
court's central concern is whether the parties consent to the terms
of a proposed consent order. In this case, the parties' signatures
on the 24 May 2000 judgment evidenced their ongoing consent.
Wachovia Bank v. Bounous, 53 N.C. App. 700, 706, 281 S.E.2d 712,
715 (1981) (“it is beyond question that, absent any circumstances
to put the court on notice that one of the parties does not
actually consent thereto, a judge may properly rely upon the
signatures of the parties as evidence of consent to a judgment”).
We conclude that the consent judgment was not
void ab initio,
and further conclude that
Tevepaugh does not require it to be set
aside.
We next consider whether the trial court properly denied
plaintiff's motion on the stated grounds. In the order denying
plaintiff's Rule 60 motion, the trial court based its ultimate
ruling upon (1) the plaintiff's delay in seeking relief, and (2)
the plaintiff's ratification of the consent judgment. We hold that
the trial court properly concluded that plaintiff had delayed
unreasonably in pursuing Rule 60 relief.
As discussed above, the consent judgment entered in this case
was not void as a matter of law. Plaintiff was therefore precluded
from obtaining relief under Rule 60(b)(4). Further, plaintiff did
not assert grounds for relief under Rule 60(b)(1), (2), or (3). Thus, plaintiff's relief, if any, must come from Rule 60(b)(6).
See Thacker v. Thacker, 107 N.C. App. 479, 481, 420 S.E.2d 479, 480
(“Absent a showing of fraud, mutual mistake or a lack of consent,
attacks on consent judgments are controlled by Rule 60(b)(6).”),
disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992).
“Although section (6) of Rule 60(b) has often been termed 'a vast
reservoir of equitable power,' a court cannot set aside a judgment
pursuant to this rule without a showing (1) that extraordinary
circumstances exist, and (2) that justice demands relief.”
Id. at
481, 420 S.E.2d at 480 (quoting
Anderson Trucking Service v. Key
Way Transport, 94 N.C. App. 36, 40, 379 S.E.2d 665, 667 (1989), and
citing
Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588
(1987)).
The requirement that a Rule 60 motion be made “within a
reasonable time” is not enforced with regards to a void order or
judgment.
Freeman v. Freeman, 155 N.C. App. 603, 606, 573 S.E.2d
708, 711 (2002)
(“Case law indicates that because a void judgment
is a legal nullity, it may be attacked at any time.”)
(citing
Van
Engen v. Que Scientific, Inc., 151 N.C. App. 683, 567 S.E.2d 179
(2002)),
disc. review denied, 357 N.C. 250, 582 S.E.2d 32 (2003).
However, a Rule 60 motion based on other grounds is subject to the
requirement that a motion be made “within a reasonable time.”
N.C.G.S. § 1A-1, Rule 60(b);
Nickels v. Nickels, 51 N.C. App. 690,
693, 277 S.E.2d 577, 579
(where defendant moves to set aside
consent judgment 23 months after entry, Court holds “defendant
waited an unreasonable period of time” and thus that trial court“had no authority to entertain and allow the motion”),
disc. review
denied, 303 N.C. 545, 281 S.E.2d 392 (1981). “'What constitutes a
'reasonable time' depends upon the circumstances of the individual
case.'”
Id. at 692, 277 S.E.2d at 578 (quoting
McGinnis v.
Robinson, 43 N.C. App. 1, 8, 258 S.E.2d 84, 88 (1979)). In
addition, the trial court's determination that plaintiff delayed
unreasonably is reviewed for abuse of discretion.
Brown v.
Windhom, 104 N.C. App. 219, 221, 408 S.E.2d 536, 537 (1991) (where
“defendant offers little explanation for the one-year delay in
filing the motion for relief” this Court concludes there was “no
abuse of discretion in the trial court's conclusion that the motion
was not timely filed”).
In the instant case, plaintiff waited almost two years before
challenging the consent judgment. We conclude that the trial
court's conclusion, that plaintiff had delayed unreasonably, was
supported by the evidence and did not constitute an abuse of
discretion. We therefore need not address ratification, the
court's second basis for denial of the Rule 60 motion.
We conclude that the consent judgment was not void as a matter
of law; that this Court's holding in
Tevepaugh does not require
that the consent judgment be vacated; and that the trial court did
not abuse its discretion by denying plaintiff's motion to set aside
the consent judgment based upon her unreasonable delay in filing
the Rule 60 motion. Accordingly, the trial court's order is
Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
Footnote: 1