Cox v. Cox, 783DC1057
| Decision Date | 06 November 1979 |
| Docket Number | No. 783DC1057,783DC1057 |
| Citation | 259 S.E.2d 400,43 N.C.App. 518 |
| Parties | Betty J. COX v. L. Stephen COX. |
| Court | North Carolina Court of Appeals |
James, Hite, Cavendish & Blount by M. E. Cavendish, Greenville, for plaintiff-appellant.
White, Allen, Hooten, Hodges and Hines by Thomas J. White, Kinston, for defendant-appellee.
We hold the district court committed error in amending the consent judgment. There have been many cases in this state dealing with the setting aside or amendment of consent judgments. See Holsomback v. Holsomback, 273 N.C. 728, 161 S.E.2d 99 (1968); Cranford v. Steed, 268 N.C. 595, 151 S.E.2d 206 (1966); Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964); Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963); King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945); Hazard v. Hazard, 35 N.C.App. 668, 242 S.E.2d 196 (1978); Blankenship v. Price, 27 N.C.App. 20, 217 S.E.2d 709 (1975); Shore v. Shore, 7 N.C.App. 197, 171 S.E.2d 798 (1970); Highway Comm. v. Rowson, 5 N.C.App. 629, 169 S.E.2d 132 (1969); Highway Comm. v. School, 5 N.C.App. 684, 169 S.E.2d 193 (1969). From a reading of these cases, we believe the rule is that a consent judgment is not only a judgment of the court but is also a contract between the parties. It cannot be amended without showing fraud or mutual mistake, which showing must be by a separate action, or by showing the judgment as signed was not consented to by a party, which showing may be by motion in the cause. The appellee's argument is that both parties agreed that the payments to the plaintiff would be treated as alimony which the plaintiff would report as income and which defendant would deduct from his income for tax purposes. Whatever the tax consequences would be, each party consented to the judgment as drawn. We hold that the fact that the legal consequences of the signing of the judgment was different than what the parties contemplated is not a sufficient reason to amend a consent judgment unless both parties agree to the change. See King v. King, supra. It was error for the district court to order the amendment to the consent judgment.
Reversed and remanded.
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Buckingham v. Buckingham
...by showing the judgment as signed was not consented to by a party, which showing may be by motion in the cause." Cox v. Cox, 43 N.C.App. 518, 519, 259 S.E.2d 400, 401-02 (1979), review denied, 299 N.C. 329, 265 S.E.2d 394 (1980). Accordingly, we find no Plaintiff next contends that the tria......
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Grandy v. Midgett, No. COA07-1332 (N.C. App. 6/17/2008)
...be by motion in the cause." Buckingham v. Buckingham, 134 N.C. App. 82, 88, 516 S.E.2d 869, 874 (1999) (quoting Cox v. Cox, 43 N.C. App. 518, 519, 259 S.E.2d 400, 401-02 (1979)). Plaintiff's consent to the temporary consent order also renders her objections to that order We further note tha......