An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1250


Filed: 15 June 2004


         v.                        Caldwell County
                                No. 00 CVD 934

    Appeal by defendant from order entered 30 May 2003 by Judge Gregory R. Hayes in the District Court in Caldwell County. Heard in the Court of Appeals 7 June 2004.

    Respess & Jud, by W. Wallace Respess, Jr., and Marshall Hurley, P.L.L.C., by Marshall Hurley, for plaintiff-appellee.

    Wilson, Lackey & Rohr, P.C., by David S. Lackey, for defendant-appellant.

    HUDSON, Judge.

    On 25 May 2000, plaintiff commenced this action against defendant, then her husband, seeking post-separation support, permanent alimony, divorce from bed and board, and equitable distribution of marital property. On 20 December 2001, the parties and their counsel signed a Memorandum of Judgment/Order (“memorandum”) agreeing to distribute the marital property in accordance with a pre-trial order. This memorandum further provided for payment by defendant of a distributive award in the amount of $50,000 within thirty days of execution of the judgment. Upon the payment of this amount, defendant's obligation for post- separation support would terminate. Defendant also agreed totransfer his interest in a retirement plan to plaintiff and to vacate the marital premises no later than 20 April 2002. The parties and their attorneys signed a consent judgment incorporating the above-agreed provisions on 27 March 2002.
    On 27 March 2003, defendant filed a motion for relief from the consent judgment. He alleged that he was not mentally competent to understand or grasp the nature and consequences of the memorandum and consent judgment at the time he entered into them. The court heard the motion on 30 April 2003, and filed an order denying the motion on 30 May 2003.
    The decision to grant or deny “a motion for relief under Rule 60(b) from judgment is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). The trial court's discretionary ruling may not be reversed unless the ruling “probably amounted to a substantial miscarriage of justice,” Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982), or is “manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980). Defendant contends that the court abused its discretion by denying his motion. We disagree.
    “A consent judgment is the contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval.” Blankenship v. Price, 27 N.C. App. 20, 22, 217 S.E.2d 709, 710 (1975). “A consent judgment signed by the attorneys for the parties is presumed to be valid and the burden ofproof is upon the one who challenges its invalidity.” Ex parte Johnson, 277 N.C. 688, 696, 178 S.E.2d 470, 475 (1971).
    When evidence is presented at a hearing on a motion for relief from judgment pursuant to Rule 60(b), the trial court's findings of fact, if supported by competent evidence, are conclusive on appeal. Blankenship v. Town and Country Ford, Inc., 155 N.C. App. 161, 165, 574 S.E.2d 132, 134-35 (2002), appeal dismissed and disc. review denied, 357 N.C. 61, 579 S.E.2d 384 (2003). In denying the motion sub judice, the court found that defendant failed to overcome the presumption of validity of the consent judgment. The court found that defendant sustained some moderate cognitive dysfunction as a result of an ischemic brain injury he suffered in May 2001. As of 7 August 2001, however, he had made significant improvement and his physicians had completed their treatment of him.
    In the fall of 2001, defendant met with Ms. Rachael A. LeClair, a licensed practicing attorney, for the purpose of setting aside powers of attorney executed in the aftermath of the brain injury. At that time, defendant demonstrated that he was taking control of his business affairs. Ms. LeClair represented defendant during the settlement conference. She signed the Memorandum of Judgment and the consent judgment with defendant.
    Around Thanksgiving 2001, defendant notified Kerry Barlowe, a close personal friend of defendant who had taken over defendant's responsibilities in operating his business following the brain injury, that he was resuming control of his day-to-day business affairs. On 20 December 2001, Barlowe attended the settlementconference and observed that defendant insisted upon the placement of certain values on various items of property, including antique cars. At defendant's insistence, these values were incorporated into the documents.
    Attorney LeClair and Barlowe both expressed the opinion that defendant knew what he was doing on 20 December 2001. In March 2002, attorney LeClair also met with defendant on at least two occasions and exhaustively explained to him the terms and conditions of the consent judgment before he signed it. Defendant paid the distributive award on or before 20 January 2002, and thereby relieved himself of the obligation of post-separation support. Defendant on other occasions ratified the terms and conditions of the memorandum and the consent judgment.
    We hold the foregoing findings are supported by competent evidence and thus are conclusive. They provide a rational basis for the court's decision to deny the motion for relief from judgment. The court did not abuse its discretion, and the order is therefore affirmed.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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