Johnson v. Johnson

313 S.E.2d 162, 67 N.C. App. 250, 1984 N.C. App. LEXIS 3054

• Court: Court of Appeals of North Carolina
• Decided: March 20, 1984
• Docket: 8311DC339
• Status: Published

Opinion

HILL, Judge.

I

Plaintiff contends the trial judge erred by his refusal to set aside the deed of separation because of attorney misconduct, breach of fiduciary relationship, undue influence, duress, coercion, or denial of counsel to plaintiff. By her assignment of error we must divide the issue into two parts: (1) the alleged overreaching of the defendant, and (2) the alleged misconduct of defendant’s attorney. We find no error in the trial judge’s resolution of these two issues.

(1) The alleged overreaching of defendant. North Carolina Courts have scrutinized separation agreements with utmost concern. In the case of Eubanks v. Eubanks, 273 N.C. 189, 195-96, 159 S.E. 2d 562, 567 (1968), Justice (later Chief Justice) Sharp stated: “The relationship between husband and wife is the most confidential of all relationships, and transactions between them, to be valid, must be fair and reasonable. ... To be valid, ‘a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties.’ ”

Courts have thrown a cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably. To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching. See Christian v. Christian, 42 N.Y. 2d 63, 72, 365 N.E. 2d 849, 856, 396 N.Y.S. 2d 817, 824 (1977). With these principles in mind, we examine the facts of the case under review.

Evidence supporting the factual findings of the trial judge indicates that plaintiff met her husband in the parking lot of his attorney and advised him she was not going to sign the agreement. Husband advised her of the embarrassment which would come her way if the suit were litigated. Such purported threats or duress were not new to the wife. The record reveals that such accusations directed toward her had been made on several occasions prior to 28 January 1982, and plaintiff was not afraid or intimidated thereby, nor was she placed under duress at or prior to the time of signing the separation agreement. In fact, the parties discussed further the cost of baby-sitting expenses, and husband agreed to pay beyond his present obligations to his wife the cost of child care and baby-sitting. The offer of sharing the babysitting expenses by the husband was an added consideration for plaintiff to execute the instrument. The evidence further shows that the two parties went into the reception room of the husband’s attorney and waited some thirty minutes for a notary so that the instrument could be executed. The wife had every opportunity to discuss any duress or coercion with her friend, the notary. Also, the wife was aware of the value of the house and lot at the time she signed the papers. She knew the lot was given to her and her husband by his parents, and the cost of the dwelling was covered by a loan. She received $1,500.00 consideration for her interest in the house. Plaintiff and defendant are equally educated.

We conclude that the evidence supports the trial court’s finding that plaintiff entered into and executed the separation agreement freely, willingly, voluntarily, and without being under any duress, coercion, or fear. The findings of fact support the conclusion of law that the separation agreement executed and signed by plaintiff is valid and of full force and effect.

(2) The alleged misconduct of defendant’s attorney. Defendant’s attorney did not participate in the negotiations between plaintiff and defendant. Even though he had been told by plaintiff s attorney that he had advised her not to sign the agreement, we conclude he did all that was required thereafter. He stayed in his private office while the parties sat in the reception room. He did not speak to either party until after the agreement was signed. His conversation with the wife was reassuring and innocuous after the signing. The receipt which he drew after execution was not challenged. We find nothing improper in the action by defendant’s attorney.

II

Finally, plaintiff argues the court erred in refusing to personally make findings of fact, state separately his conclusions of law and direct the entry of appropriate judgment as required by G.S. 1A-1, Rule 52 of the North Carolina Rules of Civil Procedure. We do not interpret this rule as requiring the manual drafting of such judgment or oral dictation thereof. The trial judge properly directed the attorney for the defendant to prepare proposed findings and conclusions and draft the judgment, and adopted the judgment as his own when tendered and signed. The entire judgment was not made until all of this was accomplished. See Bank v. Easton, 12 N.C. App. 153, 182 S.E. 2d 645, cert. denied, 279 N.C. 393,183 S.E. 2d 245 (1971). We conclude the judgment was proper. Evidence presented at trial was sufficient to support the findings of fact, conclusions of law, and the judgment.

Affirmed.

Judges Hedrick and Eagles concur.