Hazard v. Hazard

242 S.E.2d 196 (1978)

35 N.C. App. 668

Fred HAZARD v. Margaret C. HAZARD.

No. 7715DC480.

Court of Appeals of North Carolina.

March 21, 1978.

*197 Battle & Bayliss, by F. Gordon Battle, William H. Bayliss, Chapel Hill, and Dalton Loftin, Hillsborough, for plaintiff appellee.

Manning, Jackson, Osborn & Frankstone, by David R. Frankstone, Chapel Hill, for defendant appellant.

ARNOLD, Judge.

Defendant argues that she should have been allowed to attack the consent judgment rendered in an earlier action between the two parties. Her argument fails. The case of Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964), presented a similar argument, and that case controls our decision here. In Becker, the Supreme Court followed the well settled principle of law in North Carolina that a consent judgment cannot be modified or set aside without the consent of the parties thereto except for fraud or mutual mistake, and the proper procedure to vacate the consent judgment is by an independent action. Id. at 690, 138 S.E.2d at 511, citing Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956); King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945). The Court held, therefore, that, in an action for divorce on the ground of two years' separation, the defendant was not entitled to attack a prior separation agreement embodied in a consent judgment. In Becker, as in the case sub judice, the plaintiff's action for divorce was not based upon the consent judgment which defendant sought to attack.

We have reviewed the record and conclude that the trial court did not err in excluding evidence concerning the prior consent judgment and in granting plaintiff an absolute divorce from defendant.

Affirmed.

MORRIS and MARTIN, JJ., concur.