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Cox v. Cox

Filed: November 6, 1979.

BETTY J. COX
v.
L. STEPHEN COX



Appeal by plaintiff from Phillips (Herbert O. III), Judge. Judgment entered 26 July 1978 in District Court, Pitt County. Heard in the Court of Appeals 26 June 1979.

Webb, Judge. Judge Martin (Robert M.) concurs. Judge Mitchell concurs in the result.

Webb

We hold the district court committed error in amending the consent judgment. There have been many cases in this state dealing with the setting aside or amendment of consent judgments. See Holsomback v. Holsomback, 273 N.C. 728, 161 S.E.2d 99 (1968); Cranford v. Steed, 268 N.C. 595, 151 S.E.2d 206 (1966); Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964); Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963); King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945); Hazard v. Hazard, 35 N.C. App. 668, 242 S.E.2d 196 (1978); Blankenship v. Price, 27 N.C. App. 20, 217 S.E.2d 709 (1975); Shore v. Shore, 7 N.C. App. 197, 171 S.E.2d 798 (1970); Highway Comm. v. Rowson, 5 N.C. App. 629, 169 S.E.2d 132 (1969); Highway Comm. v. School, 5 N.C. App. 684, 169 S.E.2d 193 (1969). From a reading of these cases, we believe the rule is that a consent judgment is not only a judgment of the court but is also a contract between the parties. It cannot be amended without showing fraud or mutual mistake, which showing must be by a separate action, or by showing the judgment as signed was not consented to by a party, which showing may be by motion in the cause. The appellee's argument is that both parties agreed that the payments to the plaintiff would be treated as alimony which the plaintiff would report as income and which defendant would deduct from his income for tax purposes. Whatever the tax consequences would be, each party consented to the judgment as drawn. We hold that the fact that the legal consequence of the signing of the judgment was different than what the parties contemplated is not a sufficient reason to amend a consent judgment unless both parties agree to the change. See Page 520} King v. King, supra. It was error for the district court to order the amendment to the consent judgment.

Reversed and remanded.

Disposition

Reversed and remanded.

19791106

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