Cox v. Cox

Court of Appeals of North Carolina

Cox v. Cox

259 S.E.2d 400, 43 N.C. App. 518, 1979 N.C. App. LEXIS 3094

CourtCourt of Appeals of North Carolina

DecidedNovember 6, 1979

Docket783DC1057

StatusPublished

Cited by5 cases

This text of 259 S.E.2d 400 (Cox v. Cox) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox v. Cox, 259 S.E.2d 400, 43 N.C. App. 518, 1979 N.C. App. LEXIS 3094 (N.C. Ct. App. 1979).

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Opinion

WEBB, Judge.

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 consequence 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 *520 King v. King, supra. It was error for the district court to order the amendment to the consent judgment.

Reversed and remanded.

Judge MARTIN (Robert M.) concurs. Judge MITCHELL concurs in the result.

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WEBB, Judge.

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 consequence 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 *520 King v. King, supra. It was error for the district court to order the amendment to the consent judgment.

Reversed and remanded.

Judge MARTIN (Robert M.) concurs. Judge MITCHELL concurs in the result.

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259 S.E.2d 400, 43 N.C. App. 518, 1979 N.C. App. LEXIS 3094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-cox-ncctapp-1979.

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