Nickels v. Nickels , 51 N.C. App. 690 ( 1981 )

277 S.E.2d 577 (1981)

Virginia Wright NICKELS
v.
Dewey NICKELS.

No. 8021DC899.

Court of Appeals of North Carolina.

May 5, 1981.

Westmoreland, Sawyer & Miller, P. A., by Gordon A. Miller, Winston-Salem, for plaintiff-appellant.

Morrow & Reavis by Larry G. Reavis and John F. Morrow, Winston-Salem, for defendant-appellee.

HEDRICK, Judge.

Defendant's "motion to set aside consent judgment" does not contain the rule number pursuant to which the motion was made as contemplated by Rule 6 of the General Rules of Practice for the Superior and District Courts, nor does the order of Judge Keiger granting the motion specify the rule number; however, Judge Keiger declared the consent judgment entered 12 January 1978 by Judge Alexander to be "void." We assume, therefore, that defendant's motion was made and allowed pursuant to G.S. § 1A-1, Rule 60(b)(4), which in pertinent part provides: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for... (4) The judgment is void; ..."

While motions pursuant to subsections (1), (2), and (3) of Rule 60(b) must be made "not more than one year after the judgment, order, or proceeding was entered or taken," as well as being made "within a reasonable time," motions pursuant to subsections (4), (5), and (6) simply "shall be made within a reasonable time." G.S. § 1A-1, Rule 60(b); Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971). What constitutes a "reasonable time" depends upon the circumstances of the individual case. McGinnis v. Robinson, 43 N.C.App. 1, 258 S.E.2d 84 (1979); see also 46 Am.Jur.2d Judgments § 704.

We believe the record in the present case discloses that defendant's motion to "set aside" the consent judgment was not made within a reasonable time. The consent judgment was entered on 12 January 1978. Defendant was present when "most" of the terms of the consent judgment were discussed in open court with Judge Alexander on 16 November 1977. He had told his attorney, Davis, to "do what you have to" because "I want to get it over with." Davis testified that after the consent judgment had been signed "but within six months after November of 1977, and probably less time than that ...," he and defendant "on at least three separate occasions, got into rather heated arguments about the alimony provision," during which defendant told Davis "he did not agree to the alimony provision...." Davis then testified he told defendant, "[T]hat is not true. You did agree to it. It's over with." Defendant himself testified that he saw and read a copy of the consent judgment in May 1978.

In addition, defendant fully complied with the terms of the consent judgment with respect to the transfer of title to two mobile homes and two vehicles, the removal of four "junk cars" from a lot owned by plaintiff, the payment of attorney's fees, and the payment of child support. Defendant also signed a disbursement statement dated 8 June 1979 which evidenced complete compliance with the detailed provisions under the consent judgment for the disposition of the Mocksville real estate owned by the parties as tenants by the entirety.

Defendant retained Davis as his attorney until 2 January 1980. Defendant then, with new counsel, filed his motion to "set aside" the consent judgment on 4 January 1980, some twenty-three months after the consent judgment was entered. Under these circumstances, we are of the opinion that defendant waited an unreasonable period of time before hiring a new attorney and filing a motion to be relieved from the consent judgment, and thus Judge Keiger had no authority to entertain and allow the motion, and his order granting relief pursuant to G.S. § 1A-1, Rule 60(b)(4) must be vacated.

Even had the motion to "set aside" the consent judgment been made within a reasonable time, we are of the opinion that Judge Keiger erred in declaring the judgment void. A consent judgment cannot be set aside except upon proper allegation and proof that consent was not in fact given or that it was obtained by fraud or mutual mistake, and the burden of proof is upon the party attacking the judgment. In Re Johnson, 277 N.C. 688, 178 S.E.2d 470 (1971); Blankenship v. Price, 27 N.C.App. 20, 217 S.E.2d 709 (1975). Furthermore, this Court, in Haddock v. Waters, 19 N.C. App. 81, 198 S.E.2d 21 (1973), stated as follows:

While better practice dictates that parties and their attorneys sign a consent judgment, signatures of parties or their attorneys is not necessary if consent is made to appear. Stanley v. Cox, 253 N.C. 620, 117 S.E.2d 826 (1961). In Gardiner v. May, 172 N.C. 192, 196, 89 S.E. 955, 957 (1916), the court said: "A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client and not to have betrayed his confidence, or to have sacrificed his right." The authority of a party's attorney is presumed when he professes to represent the party .... [Citations omitted.]

Id. at 83-84, 198 S.E.2d at 23. See also Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794 (1948). In our view, the evidence in the present case, and the findings made thereon by Judge Keiger, are insufficient to rebut the presumptions discussed in Haddock v. Waters, supra.

The order appealed from is

Vacated.

ARNOLD and WEBB, JJ., concur.