McLeod v. McLeod , 266 N.C. 144 ( 1966 )

146 S.E.2d 65 (1966) 266 N.C. 144

Margaret B. McLEOD
v.
W. L. McLEOD.

No. 537.

Supreme Court of North Carolina.

January 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 agreed to pay to the plaintiff for her support, that he, the defendant, intended to continue to live in the town of Norwood and practice his profession so as to fully comply with the provisions of said agreement, do not permit the legitimate inference that defendant by such alleged fraudulent representations induced plaintiff to enter into the consent judgment with all its specific provisions, which but for these misrepresentations she would not have done. One of the essential elements of actionable fraud is "that plaintiff reasonably relied upon the representation, and acted upon it." Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131, 40 A.L.R. 2d 966. Defendant's mere failure within 30 days from the date of the consent judgment to deliver to plaintiff a $20,000 paid-up life insurance policy on his life payable to Margaret B. McLeod as the principal beneficiary, etc., as set forth in paragraph 8 of the order and decree of the consent judgment does not constitute actionable fraud, particularly as so short a time has elapsed between the signing of the consent judgment and the institution of the instant action. This is said in Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714, and quoted with approval in Van Every v. Van Every, 265 N.C. 506, 144 S.E.2d 603: "The courts will subject the wife's claim of fraud, duress, or undue influence to a far more searching scrutiny where she was represented by counsel in the making of the agreement and throughout the negotiations leading up to its execution.' Lindey, Separation Agreements § 28.IX (1937 Ed.)." Judge Brock was correct in concluding that plaintiff's complaint fails to allege sufficient facts to constitute a cause of action.

Plaintiff's second assignment of error is: "The court erred in its conclusion that the plaintiff has a remedy by motion in the cause in the original action referred to in the pleadings. * * *" This assignment of error is overruled. The consent judgment here will support contempt proceedings, if W. L. McLeod wilfully refuses to comply with what Judge McConnell ordered and decreed that he should do. Bunn v. Bunn, supra; Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370; 2 Strong, N.C. Index, Divorce and Alimony, § 21, p. 113.

Plaintiff's third and last assignment of error is: "The court erred in its conclusion that there is no cause of action to support the filing of a Lis Pendens and by striking the Lis Pendens from the record." Plaintiff's argument in support of this assignment of error is thus stated in her brief:

"``(1) Actions affecting title to real property.'

"The plaintiff respectfully contends that if the defendant should die intestate while she and the defendant are still married, and if she is the lawful and legal spouse of the defendant on such occasion, she would be entitled to make an election as provided by GS 29-30, and that it is incumbent upon her with the Consent Judgment on file in the Office of the Clerk of the Superior Court for Stanly County to put all persons on notice, desiring to consummate any real property transactions with the defendant, as to her contentions relating to their marital status which may affect title to real property conveyances."

Her contention is that this is an action affecting title to real property. With that contention we do not agree. This is not an action of a type in which G.S. § 1-116 permits the filing of a notice of lis pendens, and, therefore, the order of Judge Brock concluding that this is no cause of action to support the filing of the lis pendens filed in this case and striking it from the record in the office of the clerk of Stanly County was correct. For a clear and scholarly discussion of the doctrine of lis pendens by Lake, J., under the statute law of this State, see Cutter v. Cutter Realty Co., 265 N.C. 664, 144 S.E.2d 882.

The order of Judge Brock is

Affirmed.