An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1674
                                          &nb sp; 

Filed: 2 December 2003


v .                         Buncombe County
                            No. 00 CVD 2288

    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.

Standard of Review
    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.
    Plaintiff 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
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
     The trial court made a finding that the consent judgment “incorporated the terms of the settlement that was announced along with some additional minor terms and some implementing language.”

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