Fletcher v. Fletcher

208 S.E.2d 524 (1974) 23 N.C. App. 207

Carol FLETCHER
v.
Gale Corvin FLETCHER et al.

No. 7415SC671.

Court of Appeals of North Carolina.

October 2, 1974.

W. R. Dalton, Jr., Burlington, for plaintiff appellee.

Frederick J. Sternberg, Graham, for defendant appellants.

VAUGHN, Judge.

In a nonjury trial the resolution of conflicting evidence is a matter for the Court, and when the evidence is sufficient to support the findings and when error of law does not appear upon the face of the record proper, the judgment will not be disturbed on appeal. Wall v. Timberlake, 272 N.C. 731, 158 S.E.2d 780. The judge's factual findings, if supported by competent evidence, are as conclusive on appeal as the verdict of a jury. McMichael v. Borough Motors, Inc., 14 N.C.App. 441, 188 S.E.2d 721. This is the rule notwithstanding that, as here, there is evidence which would sustain contrary findings.

The Court made findings that respondent had inflicted violence on petitioner, that respondent threatened to kill her if she did not sign the separation agreement, and that she signed the agreement because she was afraid not to sign. These and other findings were supported by the petitioner's evidence. The Court was at liberty to disbelieve all of respondent's evidence to the contrary.

G.S. § 52-6 establishes statutory requirements for the execution of separation agreements between husband and wife. Among other things, the certifying officer must conduct an examination and determine that the agreement was voluntarily executed, and certify that the agreement is not unreasonable or injurious to the wife. See Tripp v. Tripp, 266 N.C. 378, 379, 146 S.E.2d 507, 508. "The certificate of the officer shall be conclusive of the facts therein stated but may be impeached for fraud as other judgments may be." G.S. § 52-6. See Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235. The certificate is conclusive except for fraud. Tripp, supra, 266 N.C., at 379, 146 S.E.2d, at 508. Duress and undue influence are both a species of fraud. Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714. Duress may take the form of unlawfully inducing one to make a contract or to perform some other act against his own free will. It may be manifested by threats or by the exhibition of force which apparently cannot be resisted. See Smithwick v. Whitley, 152 N.C. 369, 67 S.E. 913.

The Court's findings of fact, based upon evidence offered by petitioner, supports the Court's conclusions of law, including the conclusions that respondent practiced coercion, undue influence and duress upon petitioner so as to render petitioner's execution of the agreement involuntary. Such coercion amounts to fraud and renders the agreement void and not binding on petitioner.

The judgment from which respondent appealed is affirmed.

Affirmed.

CAMPBELL and PARKER, JJ., concur.