Holden v. Holden , 245 N.C. 1 ( 1956 )

95 S.E.2d 118 (1956) 245 N.C. 1

Gertrese V. HOLDEN
v.
Gleolia Hayes Rogers HOLDEN.

No. 380.

Supreme Court of North Carolina.

November 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. Spruill 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 1st October 1955 and the judgment entered 1st 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 law or a valid agreement of the parties. Consequently, I am of the opinion that the trial judge had neither the power nor the discretion to dip his hand into a pocket which was protected by a valid contract of a person under no disability and under the solemn sanction of the judgment of a court of competent jurisdiction."

In the case of Board of Education of Sampson County v. Board of Commissioners, supra, a consent judgment was entered. Thereafter, a judgment was entered purporting to set aside the consent judgment without the consent of the parties to the action. This Court held the judgment vacating the consent judgment was ineffectual.

Likewise, in Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350, 352, this Court said: "``A judgment or decree entered by consent is not a judgment or decree of the court, so much as the judgment or decree of the parties, entered upon its records with the sanction and permission of the court, and being the judgment of the parties, it cannot be set aside or altered without their consent.'"

If the legal effect of a consent judgment is such that a judge of the superior court cannot modify it or set it aside without the consent of the parties, logic and reason support the view that a judge of the superior court is without power to enter an effective judgment in direct conflict therewith. Furthermore, since this action is no longer pending on the question of support, the purported judgments entered on 1st October 1955, 1st December 1955, and 14th April 1956 are supported neither by an action instituted and pending in the Superior Court of Franklin County nor by any pleadings filed therein.

We construe the provisions of G.S. § 50-16, as amended, to require as a prerequisite to the awarding of alimony pendente lite, or permanent alimony, the pendency of an action in which verified pleadings have been filed and in which the wife has alleged facts at least sufficient to meet the requirements of the statute for divorce a mensa et thoro. Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420; Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283; Bateman v. Bateman, 232 N.C. 659, 61 S.E.2d 909; McManus v. McManus, 191 N.C. 740, 133 S.E. 9; Price v. Price, 188 N.C. 640, 125 S.E. 264.

The judgments complained of herein show upon the face of the record that they purport to rest upon the pleadings in an action that had been terminated by a consent judgment, which is res judicata as to the identical matters the defendant thereafter sought to relitigate.

Therefore, we hold that the judgment entered on 1st October 1955 was invalid and unenforceable. Furthermore, if the judge of the Superior Court had been clothed with power to enter such judgment, upon appeal therefrom to the Supreme Court the Superior Court was without jurisdiction to enter the purported judgment dated 1st December 1955, the appeal not having been withdrawn until 13th December 1955. Shaver v. Shaver, 244 N.C. 311, 93 S.E.2d 615; Harris v. Fairley, 232 N.C. 555, 61 S.E.2d 619; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Vaughan v. Vaughan, 211 N.C. 354. 190 S.E. 492.

It is equally clear that the judgment entered on 1st December 1955 could not be upheld on this record had there been no appeal from the October judgment, since the matter sought to be adjudicated had been settled by a consent judgment which was and still is in full force and effect. Furthermore, parties cannot confer jurisdiction by consent upon the superior court while a permissible appeal from that court is pending in the Supreme Court.

Consequently, the purported judgments entered on 1st October 1955 and 1st December 1955 are ineffective and they are hereby set aside. It follows, therefore, that the order entered 14th April 1956, adjudging the plaintiff in contempt for failure to comply with the terms of the judgment entered 1st December 1955 and taxing him with the costs and counsel fees in such hearing, is likewise ineffectual and the same is reversed and set aside.

Reversed.

JOHNSON, J., not sitting.