Stevenson v. Stevenson

398 S.E.2d 334 (1990) 100 N.C. App. 750

Vicki Jo Crump STEVENSON, Plaintiff,
v.
Michael Lee STEVENSON, Defendant.

No. 8926DC1385.

Court of Appeals of North Carolina.

December 4, 1990.

Casstevens, Hanner, Gunter & Gordon by Dorian H. Gunter and Elizabeth J. Caldwell, Charlotte, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe by Scott M. Stevenson, Charlotte, for defendant-appellant.

WELLS, Judge.

The judgment in this case is a consent judgment. A consent judgment incorporates the bargained agreement of the parties. In re Will of Baity, 65 N.C.App. 364, 309 S.E.2d 515 (1983), cert. denied, 311 N.C. 401, 319 S.E.2d 266 (1984). Such a judgment can only be attacked on limited grounds. The party attacking the judgment must properly allege and prove that consent was not in fact given, or that it was obtained by mutual mistake or fraud. Blankenship v. Price, 27 N.C.App. 20, 217 S.E.2d 709 (1975). Plaintiff in this case did not make a sufficient showing under this standard. We therefore vacate the trial court's order.

The trial court made extensive findings of fact regarding the judgment and the circumstances surrounding the entry of it in its order. There are no findings which would support a conclusion of fraud or lack of consent. Our examination of the record also failed to reveal sufficient evidence to support either claim. We focus our analysis, then, on the issue of mistake.

A contract may be avoided based on mutual mistake where the mistake is common to both parties and because of it each has done what neither intended. Marriott Financial Services, Inc. v. Capitol Funds, Inc., 288 N.C. 122, 217 S.E.2d 551 (1975). A unilateral mistake, unaccompanied by fraud, imposition, or like circumstances, is not sufficient to avoid a contract. Id. In Baity, supra, this Court applied these principles to consent judgments.

The record before the trial court was insufficient to support a conclusion that each party had done what neither intended. Defendant altered the agreement from what was agreed upon at trial, as each side apparently did during several redrafts. There was no finding or evidence which would lead to a conclusion that this was inadvertent. Any mistake, then, was not mutual.

We also do not find a sufficient basis, either in the trial court's findings of fact or our own review of the record to support a claim of unilateral mistake accompanied by fraud, imposition, or similar circumstances. There is no showing that defendant attempted to conceal the alteration of the formula, or that any pressure was applied to get plaintiff and her attorney to sign the judgment without being able to properly review it.

In Fountain v. Fountain, 83 N.C. App. 307, 350 S.E.2d 137 (1986), disc. review denied, 319 N.C. 224, 353 S.E.2d 407 (1987), we held that a written instrument could be reformed when there had been a prior oral agreement, and one party knew that the other party was operating under a mistaken belief that the written agreement conformed to it. While in this case, there is clear evidence of a prior contrary oral agreement, there are no findings in the trial court's order which would establish that plaintiff and her attorney were mistaken as to the effect of the language of the agreement and that defendant was aware of this mistake at the time the consent judgment was signed. Our review of the record likewise reveals insufficient evidence to support such a conclusion. The agreement was altered many times by both parties. It should be enforced as written.

Blee v. Blee, 89 N.C.App. 289, 365 S.E.2d 679 (1988) is distinguishable. Judgment in that case was entered orally, and by agreement of the parties, was effective that day. Defendant attempted to withdraw his consent before the judgment was memorialized. The trial court allowed defendant's Rule 60(b) motion. This Court reversed, holding: "It would be a travesty to say that a party to a judgment so solemnly promulgated and entered as the one depicted by this record could repudiate that judgment at any time after the judgment was entered." The judgment in this case was not "solemnly rendered" on 31 May 1988. It was altered several times by both parties before it was finalized and signed by the court.

It is the policy of this State to promote certainty and finality in domestic dispute resolutions. Goff v. Goff, 90 N.C.App. 388, 368 S.E.2d 419 (1988). Plaintiff in this case has not carried her burden to invalidate this consent judgment. The order of the trial court is therefore vacated.

Vacated.

COZORT and LEWIS, JJ., concur.