Holden v. Holden

• Decision Date: 21 November 1956
• Docket Number: No. 380,380
• Citation: 245 N.C. 1,95 S.E.2d 118
• Parties: Gertrese V. HOLDEN v. Gleolia Hayes Rogers HOLDEN.
• Court: North Carolina Supreme Court

Page 118

95 S.E.2d 118

245 N.C. 1

Gertrese V. HOLDEN v. Gleolia Hayes Rogers HOLDEN.

No. 380

Supreme Court of North Carolina.

Nov. 21, 1956

W. B. Nivens, Monroe, for plaintiff.

Gaither M. Beam, Charles P. Green, Louisburg, for defendant.

DENNY, Justice.

The appellant in his case on appeal undertakes to set out six assignments of error based on a like number of exceptions. However, the exceptions appear nowhere in the record except under the purported assignments of error. Such exceptions are worthless and will not be considered on appeal. Even so, in the absence of any exceptions, or when exceptions have not been preserved in accord with the requirements of our Rules, the appeal will be taken as an exception to the judgment. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223. Consequently, as pointed out by the appellee, in view of the state of the record in this appeal, we are limited to the question whether or not error appears on the face of the record.

It is apparent the appellee has not taken into consideration the contents and effect of the consent judgment entered on 13th April 1954. That was a final judgment in every respect except as to the minor child. The question of the custody of the minor child and the sufficiency of the amount agreed upon for the support of such child were not final but made subject to the further orders of the court. The judgment merely sets out the payments agreed upon for the support of the defendant as well as those for the support and maintenance of the minor child, and the court did not decree that the payments should be made by the plaintiff. In this respect, the judgment constitutes nothing more than a contract between the parties. Davis v. Davis, 213 N.C. 537, 196 S.E. 819. Therefore, as to the defendant, in the absence of a finding that the agreement incorporated in the judgment, providing for a division of the property and for her support, was unfair to her, or that her consent thereto was obtained by fraud or mutual mistake, such judgment cannot be set aside except by consent of the parties. Spruil v. Nixon, 238 N.C. 523, 78 S.E.2d 323; Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345; Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747; King v. King, 225 N.C. 639, 35 S.E.2d 893.

It is a well settled principle of law in this jurisdiction that ordinarily a consent judgment cannot be modified or set aside without the consent of the parties thereto, except for fraud or mutual mistake, and in order to vacate such order, an independent action must be instituted. Spruill v. Nixon, supra; King v. King, supra; LaLonde v. Hubbard, 202 N.C. 771, 164 S.E. 359; Weaver v. Hampton, 201 N.C. 798, 161 S.E. 480; Board of Education of Sampson County v. Board of Commissioners, 192 N.C. 274, 134 S.E. 852; Morris v. Patterson, 180 N.C. 484, 105 S.E. 25.

In support of the conclusion we have reached with respect to the judgment entered 13th April 1954, we call attention to the fact that at the time such judgment was entered Judge Stevens had no power to enter a decree awarding permanent alimony in this cause. Prior to the enactment of Chapter 814, 1955 Session Laws, now codified as a part of G.S. § 50-16, permanent alimony could not be granted in an action for divorce a mensa unless such divorce was granted.

In the case of Silver v. Silver, 220 N.C. 191, 16 S.E.2d 834, this Court held that permanent alimony under C.S. § 1665, now G.S. § 50-14, could be allowed only upon a decree of divorce a mensa and that a decree allowing permanent alimony, when unsupported by a judgment for divorce a mensa, cannot be sustained.

The defendant in her answer to the complaint in this action did not pray the court for a divorce a mensa and none was granted. Therefore, it appears upon the face of the record that the judgment entered on 13th April 1954 is nothing more than a contract between the parties and is in full force and effect, and if breached the plaintiff is not punishable for contempt under G.S. § 5-8. Luther v. Luther, supra; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529; Davis v. Davis, supra.

A careful examination of the record discloses that the motion which culminated in the judgment entered lst October 1955 and the judgment entered lst December 1955 only involved a request for alimony and counsel fees. Nowhere is it indicated or found that the plaintiff was at any time in arrears in his payments for the support of his child, as provided in the consent judgment. Furthermore, in the order signed on 14th April 1956, from which this appeal is taken, the Clerk of the Superior Court of Franklin County testified that the plaintiff was not in arrears in his allowance to his minor child, and the court so found.

We hold that all matters pertaining to the support of the defendant, Gleolia Hayes Rogers Holden, which were raised in the original pleadings in this cause, were settled by the consent judgment, and that they are res judicata. Therefore, the original action has not been pending since the entry of the consent judgment on 13th April 1954, for any purpose, except as to the custody and support of the minor child born of the marriage. Consequently, a judge of the superior court does not have the power to modify the consent judgment entered in this cause with respect to the support of the defendant without the consent of the parties. They are remitted to their rights and liabilities under the contract. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Id., 194 N.C. 673, 140 S.E. 440; Turner v. Turner, 205 N.C. 198, 170 S.E. 646.

Brogden, J., concurring in the opinion of the Court involving a consent judgment in the case of Brown v. Brown, 205 N.C. 64, 169 S.E. 818, 821, said: 'Public policy recognizes the right of a wife to contract with her husband with reference to mutual property rights or with reference to separation agreements based upon a mutual release of property rights. If the right of alimony and counsel fees is a property right, growing out of marriage, and the wife has the power to contract and does contract with reference thereto, with the approval and sanction of a court, then it would seem that a judge had no discretion in the matter. Discretion exists only when a matter is open for negotiation and not precluded by a provision of the...