McLeod v. McLeod

• Decision Date: 14 January 1966
• Docket Number: No. 537,537
• Citation: 146 S.E.2d 65,266 N.C. 144
• Parties: Marqaret B. McLEOD v. W. L. McLEOD.
• Court: North Carolina Supreme Court

Page 65

146 S.E.2d 65

266 N.C. 144

Marqaret B. McLEOD v. W. L. McLEOD.

No. 537.

Supreme Court of North Carolina.

Jan. 14, 1966.

Hartsell, Hartsell & Mills, by William L. Mills, Jr. and K. Michael Koontz, Concord, for plaintiff appellant.

Morgan & Williams, by Charles R. Williams, Lillington, for defendant appellee.

PARKER, Justice.

Plaintiff's first assignment of error is 'The court erred in its finding of fact and conclusion that the complaint fails to allege a cause of action and the dismissal thereof.'

Judge Brock's order adjudges and decrees that the action be dismissed, 'if the plaintiff does not amend,' and his order allows plaintiff ten days within which to amend her complaint.

Plaintiff does not challenge Judge Brock's finding of fact 'that the allegations contained in the complaint for a second cause of action are the same as those contained in a counterclaim for relief in an action entitled 'W. L. McLeod, Plaintiff, v. Margaret B. McLeod, Defendant,' bearing Summons Docket No. 4773.' According to this unchallenged finding of fact, plaintiff's second cause of action here has been adjudicated by the consent order signed by Judge McConnell, and this appears on the face of the complaint and the consent order and the pleadings in that action, which are attached to the complaint and made a part thereof, and can be considered on the demurrer. Moore v. W O O W, Inc., 253 N.C. 1, 116 S.E.2d 186; Charlotte Coach Lines v. Brotherhood of Railroad Trainmen, 254 N.C. 60, 118 S.E.2d 37. Generally, a consent judgment is res judicata as between the parties upon all matters embraced therein. 3 Strong, N.C. Index, Judgments, § 34, and same section under judgments in his Supplement to Volume 3. To this general rule there appears to be an exception that neither agreements nor adjudications for the custody or support of a minor child are ever final. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332.

Plaintiff's entire argument in her brief in reference to this assignment of error is in essence that a consent judgment can be vacated for fraud, and that to do this an independent action must be instituted, and that her complaint, liberally construed, alleges a cause of action to vacate the consent judgment signed by Judge McConnell for fraud; in her brief she does not discuss her second alleged cause of action.

In Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118, it is said: '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.' 3 Strong, N.C. Index, Judgments, § 25, p. 38.

It is familiar learning that a demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of the factual averments well stated and the relevant inferences of fact reasonably deducible therefrom, but a demurrer does not admit inferences or conclusions of law. Upon a demurrer a pleading will be liberally construed with a view to substantial justice between the parties, giving the pleader the benefit of every reasonable intendment in his favor. 3 Strong, N.C. Index, Pleadings, § 12.

Margaret B. McLeod in the action in which the consent judgment was entered was represented by eminent and learned counsel. An examination of the consent judgment, which we have copied in full in our opinion, shows careful and meticulous provisions were made for the maintenance and support of plaintiff and the two minor children born of the marriage. The date when Judge McConnell and the parties and their counsel signed it is not shown. However, it does appear from the record that Margaret B. McLeod's answer, in the action in which the consent judgment was entered, was filed on 1 March 1965. The instant action was commenced by her on 24 June 1965. It would seem that according to the provisions of paragraph 4 of the court's order and decree in the consent judgment that W. L. McLeod has deposited the sum of $10,000 in the Home Savings and Loan Association at Albemarle, North Carolina, for the use and benefit of Margaret B. McLeod, that according to the provisions of paragraph 5 of the court's order and decree that he has made the payments of $375 a month to Margaret B. McLeod, because plaintiff in her complaint has not alleged those things have not been done.

In our opinion, and we so hold, considering all the provisions and terms of the separation agreement, that defendant's alleged fraudulent representations that plaintiff would have to move from within the corporate limits of the town of Norwood in order that the defendant may continue the practice of his profession in said town so as to make the monthly payments which he had...