RHONDA E. HOLDEN,
Plaintiff,
v
.
Brunswick County
No. 02 CVD 1845
JOHN ALAN HOLDEN,
Defendant.
Lea, Rhine & Associates, by Lori W. Rosbrugh and James W. Lea,
III, for plaintiff-appellant.
The Del Re' Law Firm, by Benedict J. Del Re', Jr., for
defendant-appellee.
ELMORE, Judge.
Plaintiff and defendant separated after a six-year marriage on
28 December 2001. Thereafter, a typed consent order with several
hand written corrections and additions noted throughout the
document, was signed by both parties and counsels and entered by
the trial court on 8 January 2003. An amended consent order,
referred to as a cleaner final copy of the 8 January 2003 order,
was later filed on 21 January 2003, signed by only the judge. In
approximately March of 2003, plaintiff received a copy of the final
order and found error in one of its provisions regarding a covenant
not to compete. Plaintiff contacted her attorney to resolve theerror; however, she then retained new counsel, who filed a motion
to set aside the 8 January and the 21 January orders under Rule 60
of the North Carolina Rules of Civil Procedure.
A hearing on the motion was designated and the trial court
determined that the 21 January amended consent order was void for
lack of signatures by plaintiff and defendant. The trial court
also ruled that the 8 January consent judgment was the only valid
judgment and denied to set it aside. It is from this ruling that
plaintiff appeals.
We review a trial court's decision to grant or deny a motion
filed pursuant to Rule 60 for abuse of discretion. See Buie v.
Johnston, 313 N.C. 586, 589, 330 S.E.2d 197, 199 (1985). We cannot
say that the trial court abused its discretion in granting the
portion of plaintiff's motion directed at the 21 January order and
denying that portion of the Rule 60 motion directed at setting
aside the 8 January order.
A consent judgment is void if it is entered without the
consent of the parties to the judgment. See Overton v. Overton,
259 N.C. 31, 37, 129 S.E.2d 593, 598 (1963); Milner v. Littlejohn,
126 N.C. App. 184, 187, 484 S.E.2d 453, 456, disc. review denied,
347 N.C. 268, 493 S.E.2d 458 (1997). It is undisputed that neither
party nor either counsel signed the 21 January order. Without
either both attorneys' signatures on behalf of their respective
clients or both parties' signatures, the order cannot be entered as
a consent order, since by definition, a consent order is a contract
between the parties sanctioned by the court. See id. at 187, 484S.E.2d at 455-56 (consent order as a court sanctioned contract);
see also In re Johnson, 277 N.C. 688, 696, 178 S.E.2d 470, 475
(1971) (noting attorneys' signatures can validate consent). Also,
nothing contained in the 8 January consent order obviated the need
for signatures by the parties on any amended order. Cf. Miller v.
Miller, 153 N.C. App. 40, 45, 568 S.E.2d 914, 917-18 (2002)
(signatures were not necessary on revised formal consent order due
to the fact that a previous order contained a term making future
signatures on formal order unnecessary).
Since the 21 January amended “consent” order was entered
without authorization, that order was void and it was well within
the trial court's discretion to set it aside. See Stroupe v.
Stroupe, 301 N.C. 656, 662, 273 S.E.2d 434, 438 (1981) (“A void
judgment is without life or force, and the court will quash it on
motion, or ex mero motu.”) (internal quotations omitted).
Further, the trial court did not abuse its discretion in
denying the motion to set aside the 8 January order. Plaintiff
argues that the page which holds the covenant not to compete was
not a part of the document she consented to and also argues that
she was coerced into signing the consent agreement by defendant's
promise of employment and threats of protracted litigation.
However the trial court found in its order denying the Rule 60
motion that at the 8 January hearing on the consent order,
plaintiff, under oath, verified she freely entered into the
judgment and that any promises made were contained within the
document. The trial court also found no evidence of any deceptionin the document, such as a page being added without plaintiff's
knowledge. Finally, the trial court determined that the consent
order itself noted that it was freely entered into and contained
all promises made between the parties.
Accordingly, the trial court was well within its discretion in
partially granting and denying plaintiff's Rule 60 motion and we
affirm the order of the trial court.
Affirmed.
Judges McGee and McCullough concur.
Report per Rule 30(e).
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