Thacker v. Thacker , 107 N.C. App. 479 ( 1992 )

420 S.E.2d 479 (1992) 107 N.C. App. 479

F. Aubrey THACKER, Jr.
v.
Patty H. THACKER.

No. 9121DC732.

Court of Appeals of North Carolina.

September 15, 1992.

Greeson, Grace & Gatto by Joseph J. Gatto, Winston-Salem, for plaintiff, appellee.

Morrow, Alexander, Tash, Long & Black by John F. Morrow, and Clifton R. Long, Jr., Winston-Salem, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant first contends the trial court erred "when it concluded that the only grounds available to defendant under a Rule 60(b) motion to obtain relief from a consent judgment were mutual mistake or fraud." Defendant does not argue that the trial court erroneously concluded that the facts set forth in her motion do not support a claim of mutual mistake or fraud on the part of plaintiff. It is clear that no claim of mutual mistake or fraud can be supported by the circumstances of this case. Rather, defendant simply argues that the trial court misinterpreted the rule of law relating to relief from consent judgments.

This assignment of error by defendant has no merit. Regardless of the accuracy of the language of this particular conclusion of the court, it is obvious that the statement was irrelevant to the court's decision. The judgment properly concluded that the consent order "is valid and enforceable and should not be vacated or set aside pursuant to Rule 60(b)." The court properly found that defendant's motion presents no facts justifying relief pursuant to any of the six subparts of Rule 60(b).

Absent a showing of fraud, mutual mistake or a lack of consent, attacks on consent judgments are controlled by Rule 60(b)(6). State ex. rel. Envir. Mgmt. Comm. v. House of Reaford Farms, 101 N.C.App. 433, 447, 400 S.E.2d 107, 116, disc. review denied, 328 N.C. 576, 403 S.E.2d 521 (1991); In re Will of Baity, 65 N.C.App. 364, 367, 309 S.E.2d 515, 518 (1983), cert. denied, 311 N.C. 401, 319 S.E.2d 266 (1984). Defendant seems to argue that Rule 60(b)(6) should provide her relief from this consent order due to the fact she was not represented by counsel at the time the order was executed, she was ignorant of her rights pursuant to the equitable distribution laws of this State, and the resulting consent order awarded plaintiff a significantly larger portion of the marital assets. Defendant however cites no authority in support of her contention that such circumstances justify Rule 60(b)(6) relief.

Although section (6) of Rule 60(b) has often been termed "a vast reservoir of equitable power," Anderson Trucking v. Keyway, 94 N.C.App. 36, 40, 379 S.E.2d 665, 667 (1989); Sides v. Reid, 35 N.C.App. 235, 237, 241 S.E.2d 110, 112 (1978), a court cannot set aside a judgment pursuant to this rule without a showing (1) that extraordinary circumstances exist and (2) that justice demands relief. Howell v. Howell, 321 N.C. 87, 91, 361 S.E.2d 585, 588 (1987); State ex. rel. Envir. Mgmt. Comm. v. House of Reaford, 101 N.C.App. at 448, 400 S.E.2d at 117; Anderson Trucking v. Keyway, 94 N.C.App. at 42, 379 S.E.2d at 669; Equipment Co. v. Albertson, 35 N.C.App. 144, 147, 240 S.E.2d 499, 501 (1978); Sides v. Reid, 35 N.C.App. at 238, 241 S.E.2d at 112. Further, the remedy provided by Rule 60(b)(6) is equitable in nature and is directed to the discretion of the trial judge. Kennedy v. Starr, 62 N.C.App. 182, 186, 302 S.E.2d 497, 499-500, disc. review denied, 309 N.C. 321, 307 S.E.2d 164 (1983). This Court will not disturb such a discretionary ruling without a showing of an abuse of that discretion. Id.; Worthington v. Bynum, 305 N.C. 478, 486-487, 290 S.E.2d 599, 604-605 (1982).

Defendant fails to allege "extraordinary circumstances" and makes no effort to argue abuse of discretion by the trial court. This Court has held on numerous occasions that a lack of counsel and/or an ignorance of the law does not amount to "extraordinary circumstances" without some showing that the lack of counsel or ignorance was due to reasons beyond control of the party seeking relief. See Wilson v. Wilson, 98 N.C.App. 230, 390 S.E.2d 354 (1990); Equipment Co. v. Albertson, 35 N.C.App. at 147, 240 S.E.2d at 502 (1978); Sides v. Reid, 35 N.C.App. at 238, 241 S.E.2d at 112; Vaglio v. Town & Campus Int., Inc., 71 N.C.App. 250, 256, 322 S.E.2d 3, 7 (1984); Anderson Trucking v. Keyway, 94 N.C.App. at 43, 379 S.E.2d at 669. Further, a finding that plaintiff received a greater percentage of the marital assets pursuant to the consent judgment would not otherwise be sufficient to render the agreement invalid, see In re Johnson, 277 N.C. 688, 696, 178 S.E.2d 470, 475 (1971), and defendant cannot invoke the broad language of Rule 60(b)(6) simply to obtain relief to which she is otherwise not entitled. See Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, disc. review denied, 291 N.C. 176, 229 S.E.2d 689 (1976); Draughon v. Draughon, 94 N.C.App. 597, 380 S.E.2d 547 (1989).

Defendant next contends that the trial court failed to resolve all issues raised in her motion in violation of Rule 52(a) of the North Carolina Rules of Civil Procedure. Defendant sets forth no argument in her brief concerning this alleged error. She merely refers us to her argument relating to the first issue. We will therefore also refer to our response to the first issue set out above. Defendant's motion fails to set forth a claim for relief pursuant to any subsection of Rule 60(b) and the trial court properly and specifically so concluded.

Finally, defendant argues that the trial court erred by failing to conclude that the consent judgment was void or irregular due to the failure of the judge who entered the consent order to require both plaintiff and defendant to participate in a voir dire by the court regarding their understanding of the terms of the agreement. Defendant cites this Court's opinion in McIntosh v. McIntosh, 74 N.C.App. 554, 328 S.E.2d 600 (1985), as support for her contention that the trial court's failure to make such an inquiry of the parties renders the judgment void.

We see no relevance of the holding in McIntosh to this case. Specifically, this Court stated in McIntosh that:

Any agreement entered into by parties regarding the distribution of their marital property should be reduced to writing, duly executed and acknowledged. If, as in the case sub judice, oral stipulations are not reduced to writing it must affirmatively appear in the record that the trial court made contemporaneous inquiries of the parties at the time the stipulations were entered into.

74 N.C.App. at 556, 328 S.E.2d at 602. The judgment at issue herein was duly executed and acknowledged by both parties. Neither McIntosh nor any other decision by this Court supports defendant's contention that a trial judge must undertake to independently ascertain the extent to which parties to a properly executed consent judgment understood the agreement upon which they placed their signatures.

The order of the trial court denying defendant's motion pursuant to Rule 60(b) is affirmed.

Affirmed.

LEWIS and WYNN, JJ., concur.