{ "id": 11146921, "name": "KANWALJOT G. CHANCE, Plaintiff v. DAVID JAMES HENDERSON, Defendant", "name_abbreviation": "Chance v. Henderson", "decision_date": "1999-09-07", "docket_number": "No. COA98-889", "first_page": "657", "last_page": "667", "citations": [ { "type": "official", "cite": "134 N.C. App. 657" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "380 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "544", "parenthetical": "wife bound by subsequent ratification of property settlement agreement" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527426 ], "year": 1989, "pin_cites": [ { "page": "479", "parenthetical": "wife bound by subsequent ratification of property settlement agreement" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0474-01" ] }, { "cite": "321 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "husband who actively participated in wife's procurement of invalid divorce from her prior husband estopped from denying validity of that divorce" } ], "opinion_index": 0 }, { "cite": "311 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680069, 4685382, 4684653, 4686961, 4685335 ], "year": 1984, "pin_cites": [ { "parenthetical": "husband who actively participated in wife's procurement of invalid divorce from her prior husband estopped from denying validity of that divorce" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0760-03", "/nc/311/0760-02", "/nc/311/0760-04", "/nc/311/0760-05", "/nc/311/0760-01" ] }, { "cite": "311 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1984, "pin_cites": [ { "page": "666-68", "parenthetical": "husband who actively participated in wife's procurement of invalid divorce from her prior husband estopped from denying validity of that divorce" }, { "page": "666" }, { "parenthetical": "quoting Comment b, Restatement (Second" }, { "page": "667-68" }, { "page": "667-68" }, { "page": "668" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525579 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "531-35", "parenthetical": "husband who actively participated in wife's procurement of invalid divorce from her prior husband estopped from denying validity of that divorce" }, { "page": "534-35" }, { "page": "534-35" }, { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0522-01" ] }, { "cite": "341 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "614-15", "parenthetical": "defendant estopped from denying validity of separation agreement where plaintiff relied upon and performed obligations pursuant to terms thereof" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523324 ], "year": 1986, "pin_cites": [ { "page": "294-95", "parenthetical": "defendant estopped from denying validity of separation agreement where plaintiff relied upon and performed obligations pursuant to terms thereof" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0291-01" ] }, { "cite": "393 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "145", "parenthetical": "wife's acceptance of agreement benefits for three years ratified contract, and wife therefore estopped from claiming agreement not settlement she authorized" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522103 ], "year": 1990, "pin_cites": [ { "page": "253", "parenthetical": "wife's acceptance of agreement benefits for three years ratified contract, and wife therefore estopped from claiming agreement not settlement she authorized" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0246-01" ] }, { "cite": "220 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "quoting 3 Strong's N.C. Index 2d Estoppel \u00a7 4" } ], "opinion_index": 0 }, { "cite": "288 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571450, 8571479 ], "year": 1975, "pin_cites": [ { "parenthetical": "quoting 3 Strong's N.C. Index 2d Estoppel \u00a7 4" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0734-01", "/nc/288/0734-02" ] }, { "cite": "218 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "415", "parenthetical": "quoting 3 Strong's N.C. Index 2d Estoppel \u00a7 4" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550565 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "105-06", "parenthetical": "quoting 3 Strong's N.C. Index 2d Estoppel \u00a7 4" }, { "page": "105-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0100-01" ] }, { "cite": "118 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "254 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625781 ], "year": 1961, "pin_cites": [ { "page": "265-66" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0255-01" ] }, { "cite": "41 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1947, "pin_cites": [ { "page": "748", "parenthetical": "citations omitted" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "227 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623252 ], "year": 1947, "pin_cites": [ { "page": "242", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0240-01" ] }, { "cite": "455 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "868", "parenthetical": "emphasis added" }, { "page": "868", "parenthetical": "although trial court did not read stipulated terms to parties in open court, subsequent order valid because both parties were present, represented by counsel, and indicated they either had read or understood the terms" }, { "page": "868" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919591 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "539", "parenthetical": "emphasis added" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0534-01" ] }, { "cite": "248 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555400 ], "year": 1978, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0610-01" ] }, { "cite": "217 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "288 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565242 ], "year": 1975, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0183-01" ] }, { "cite": "226 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "221", "parenthetical": "quoting Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975)" }, { "page": "221" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552268 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "112", "parenthetical": "quoting Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975)" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0110-01" ] }, { "cite": "219 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "790" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 611", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555459 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "615" }, { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0611-01" ] }, { "cite": "281 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574400, 8574434, 8574418, 8574386, 8574453 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0545-02", "/nc/303/0545-04", "/nc/303/0545-03", "/nc/303/0545-01", "/nc/303/0545-05" ] }, { "cite": "277 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643459 ], "year": 1981, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0690-01" ] }, { "cite": "35 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1945, "pin_cites": [ { "page": "895" }, { "page": "895" } ], "opinion_index": 0 }, { "cite": "225 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615514 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "641" }, { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0639-01" ] }, { "cite": "169 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "134" }, { "page": "134" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552695 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "631" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0629-01" ] }, { "cite": "328 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525363 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0554-01" ] } ], "analysis": { "cardinality": 893, "char_count": 22698, "ocr_confidence": 0.753, "pagerank": { "raw": 1.83529004079069e-07, "percentile": 0.7213154125974139 }, "sha256": "8d27f6035a7f06b666d29f27adf1436fecb10c4090fa3a309f88ed90a34ac8cf", "simhash": "1:6eb9d4683d471fdc", "word_count": 3621 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "KANWALJOT G. CHANCE, Plaintiff v. DAVID JAMES HENDERSON, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals the trial court\u2019s order denying his motion pursuant to N.C.G.S. \u00a7 1A-1, Rule 60(b)(4) (1990) (Rule 60). We hold the trial court did not err.\nRelevant facts and procedural history include the following: Plaintiff and defendant married in 1975 and separated 7 March 1994, entering into a separation agreement 23 March 1994. However, plaintiff subsequently filed suit 5 August 1994 to set aside the agreement, the first action in an extensive period of litigation between the parties involving issues of child custody, support and visitation, and interim allocation of marital assets.\nA 23 June 1995 hearing (the hearing) was scheduled on certain pending motions. At the hearing, defendant\u2019s counsel informed the trial judge, Judge Richard W. Stone (Judge Stone), that the parties had settled all pending issues. Both plaintiff and defendant were present and placed under oath, whereupon plaintiffs counsel read the settlement terms aloud in open court. The stipulated agreement addressed custody and visitation arrangements, alimony, child support, property division and attorney\u2019s fees, and provided a \u201cmutual release of all other claims whatsoever pending between the parties.\u201d Judge Stone inquired into each of the proposed terms, mediated discussion between the parties on additional issues, and questioned plaintiff and defendant individually as to whether the recited settlement was their final and full agreement. Defendant replied, \u201cYes, sir.\u201d Defendant\u2019s counsel thereafter noted that both parties had been placed under oath and \u201cstipulate[d] the formal order [wa]s going to be entry [sic] by consent of counsel.\u201d\nIn an affidavit filed in support of his Rule 60 motion, defendant indicated he had withdrawn consent to the stipulated agreement \u201cwithin hours\u201d of the hearing and instructed his attorney not to sign the order agreed upon in open court. However, on 11 July 1995, defendant\u2019s attorney sent correspondence to the Rockingham County Department of Social Services (the Department), relating the parties had reached a settlement on 23 June 1995 and agreed to dismiss all pending issues. The letter was copied to Judge Stone, plaintiff\u2019s counsel and defendant.\nOn 21 July 1995, plaintiff\u2019s counsel tendered a proposed order (the Order) to Judge Stone containing the terms agreed upon at the hearing. Defendant\u2019s counsel informed Judge Stone defendant had withdrawn his consent to the agreement, leaving counsel with no authority to acquiesce in the Order. Judge Stone instructed that the Order be modified to reflect it was prepared at his request and, following such modification, signed the Order 21 July 1995, nunc pro tunc 23 June 1995, without the signature of defendant\u2019s counsel. Defendant appealed 21 August 1995, but the appeal was dismissed 4 June 1996 for failure to be perfected in a timely manner. Defendant appealed the dismissal 7 June 1996, which appeal was subsequently dismissed on grounds identical to the earlier appeal.\nFollowing entry of the Order, defendant advanced three motions for modification, correction or enforcement of the stipulated terms therein. On 29 September 1995, defendant filed a \u201cMotion in the Cause to Modify a Prior Order,\u201d involving custody provisions of the Order. On 22 February 1996, defendant filed a \u201cMotion to Correct Order,\u201d addressing visitation provisions of the Order, which Judge Stone granted 27 June 1996. Finally, on 20 June 1996, defendant filed a \u201cMotion for Contempt,\u201d complaining plaintiff had not abided by terms of the Order.\nOn 24 June 1996, Judge Stone granted defendant\u2019s earlier motion for recusal and, on 25 September 1996, the parties consented to transfer of all pending matters to Guilford County. On 19 November 1997, defendant filed a motion pursuant to Rule 60(b)(4) (defendant\u2019s Motion) to set aside the Order as void for lack of consent. Defendant\u2019s Motion was heard and denied by Judge Susan E. Bray (Judge Bray) in a 20 March 1998 order (Judge Bray\u2019s order). Defendant appeals.\nIn his first assignment of error, defendant challenges the Order as void, asserting the trial court failed to follow requirements set forth in McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985), governing oral stipulations. This argument is unfounded.\nInter alia, Judge Bray\u2019s order contained the following findings of fact:\n1. The plaintiff [and defendant] w[ere] present in Court and represented by [their] attorney[s].\n2. . . . Plaintiff\u2019s attorney then read the terms of the settlement into the record. At the conclusion of the announcement of the terms of the stipulated settlement, the presiding Judge . . . inquired of each party as to whether he or she consented to the terms of the stipulation and agreed that the provisions were fair and equitable, to which inquiry both parties indicated their consent.\nJudge Bray further concluded as a matter of law:\n2. At the June 23, 1995, hearing, Judge Stone complied with the requirements of McIntosh ... by having the terms of the stipulated settlement read into the record, and by then contemporaneously inquiring as to whether the parties understood the terms of the agreement and whether they agreed to abide by those terms. Because both parties indicated they consented to and agreed to be bound by the terms . . . the consent order is a valid and binding order.\nA consent judgment is a contract of the parties that may be sanctioned and entered upon the records of a court, see Highway Commission v. Rowson, 5 N.C. App. 629, 631, 169 S.E.2d 132, 134 (1969), but the \u201cpower of [a] court to sign a consent judgment depends upon the unqualified consent of the parties,\u201d King v. King, 225 N.C. 639, 641, 35 S.E.2d 893, 895 (1945). To set a consent judgment aside for lack of consent, there must be proper allegation and proof by the party attacking the judgment that consent was not given. Nickels v. Nickels, 51 N.C. App. 690, 693, 277 S.E.2d 577, 579, disc. review denied, 303 N.C. 545, 281 S.E.2d 392 (1981). While the trial court\u2019s findings of fact are conclusive on appeal when supported by competent evidence, its conclusions drawn from such facts are subject to appellate review. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 615, 219 S.E.2d 787, 790 (1975). However, \u201c \u2018a motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court,\u2019 \u201d Burwell v. Wilkerson, 30 N.C. App. 110, 112, 226 S.E.2d 220, 221 (1976) (quoting Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975)), and a decision made thereon will not be disturbed on appeal absent an abuse of discretion, Harrington v. Harrington, 38 N.C. App. 610, 612, 248 S.E.2d 460, 461 (1978).\nDefendant first claims Judge Stone violated McIntosh by allowing plaintiff\u2019s counsel to recite the stipulated terms rather than Judge Stone reading the agreement himself. Defendant is mistaken.\nIn pertinent part, McIntosh provides:\n[i]f . . . oral stipulations are not reduced to writing, [duly executed and acknowledged,] 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. It should appear that the court read the terms of the stipulations to the parties; that the parties understood the legal effects of their agreement and the terms . . . and agreed to abide by those terms of their own free will.\nMcIntosh, 74 N.C. App. at 556, 328 S.E.2d at 602. However, our courts have not construed McIntosh rigidly \u201cas requiring the trial court to read [the stipulations] to the parties,\u201d Watson v. Watson, 118 N.C. App. 534, 539, 455 S.E.2d 866, 868 (1995) (emphasis added), but rather as providing either that the trial court read the agreement in open court or that it be reasonably apparent from the record that both parties either read or understood the stipulated terms, see id. at 538-39, 455 S.E.2d at 868 (although trial court did not read stipulated terms to parties in open court, subsequent order valid because both parties were present, represented by counsel, and indicated they either had read or understood the terms).\nIn the case sub judice, both parties were present, represented by counsel, and placed under oath prior to the recitation of the stipulated terms by plaintiffs attorney. During counsel\u2019s statement of the settlement, the parties discussed additional provisions and the trial court intervened to clarify new terms and conditions. The following exchange occurred thereafter:\nCourt: Is this your stipulation and agreement, [plaintiff]?\nPlaintiff: Yes.\nCourt: And the provisions for the distribution of marital property is fair and equitable?\nPlaintiff: Yes, they are.\nCourt: [Defendant], is this your agreement and stipulation as outlined by [plaintiffs attorney] and some subsequent conversation here that the court reporter got on the record?\nDefendant: Yes.\nCourt: And the provisions for the distribution of property are equitable?\nDefendant: I don\u2019t think they\u2019re equitable, but I will not challenge it.\nCourt: Well, equitable doesn\u2019t necessarily mean equal.\n[Defendant\u2019s Counsel]: It means fair.\nDefendant: Okay.\nCourt: That\u2019s your full agreement?\nDefendant: Yes, sir.\nTherefore, although the stipulated terms of settlement were read by plaintiffs attorney rather than the trial court, the record reflects that both parties answered affirmatively when Judge Stone asked if the settlement as read by plaintiff\u2019s counsel was fair and equitable and fully reflected what had been agreed upon. Based upon Judge Stone\u2019s extensive inquiry into the consent and understanding of the parties, we hold it is reasonably apparent from the record that both plaintiff and defendant understood the stipulated terms, see Watson, 118 N.C. App. at 538, 455 S.E.2d at 868, and that the consent of defendant to the oral stipulations as read by plaintiff\u2019s counsel was valid. Notwithstanding, there remains the issue of defendant\u2019s subsequent attempt to withdraw such consent following the hearing, but prior to entry of the Order.\nFor a valid consent order, the parties\u2019 consent to the terms, King, 225 N.C. at 641, 35 S.E.2d at 895, \u201cmust still subsist at the time the court is called upon\u201d to sign the consent judgment, Lee v. Rhodes, 227 N.C. 240, 242, 41 S.E.2d 747, 748 (1947) (citations omitted). If a party repudiates the agreement by withdrawing consent before entry of the judgment, the trial court is \u201cwithout power to sign [the] judgment.\u201d Id. at 242, 41 S.E.2d at 749.\nIn the case sub judice, defendant insists he notified his attorney \u201cwithin hours\u201d of the settlement hearing that he was withdrawing his consent to the oral stipulations and would not authorize counsel\u2019s signature to the Order. Although informed of this alleged circumstance at the time of presentation of the Order, Judge Stone nonetheless signed and entered the Order without defendant\u2019s consent or the signature of his attorney. Notwithstanding, we conclude subsequent actions of defendant ratified and validated the Order, and that defendant was thereby estopped from challenging the Order.\nIn this regard, Judge Bray\u2019s order contained the following findings of fact:\n4. On July 11, 1995, defendant\u2019s then counsel. .. wrote a letter to . . . the Rockingham County Department of Social Services in which he stated . . . \u201cthe parties reached a settlement on all pending issues.\u201d\n5. On September 29, 1995, the defendant filed a . . . \u201cMotion in Cause to Modify a Prior Order\u201d in which the defendant alleges . . . \u201c[o]n July 21, 1995, nunc pro tunc June 23, 1995, a Consent Order and Judgment was entered awarding the Plaintiff and the Defendant the joint custody [sic] care and control of the minor children\u201d . . . alleging] that there had been a substantial change of circumstances since the entry of the . . . consent order.\n6. On February 5, 1996, the defendant served the plaintiff with a ... \u201cMotion to Correct Order\u201d ... requesting] that the Court modify the July 21,1995, consent order and judgment to correct a mistake in the visitation provisions. . . . [T]he relief requested by the defendant was granted . .. [and] defendant\u2019s counsel then drafted an order . . . entered June 27, 1996.\nJudge Bray then concluded in pertinent part:\n3. The defendant\u2019s counsel indicated the defendant\u2019s consent to the entry of the . . . consent order in a letter . . . copied to the Judge more than two weeks after the stipulated settlement was announced.\n4. The defendant acquiesced in the validity of the . . . consent order by filing two motions subsequent to the entry of said consent order in which he requested a modification of its terms. Moreover, the defendant\u2019s counsel ratified the . . . consent order by drafting an order entered June 27, 1996, which provides that, except as modified, the terms of the . . . consent order remain in full force and effect.\nWe note in addition that defendant on two occasions failed to perfect appeals arising from the Order in question.\nWhere a party engages in positive acts that amount to ratification resulting in prejudice to an innocent party, the circumstances may give rise to estoppel. Howard v. Boyce, 254 N.C. 255, 265-66, 118 S.E.2d 897, 905 (1961). Further,\n\u201c[a] party who, with knowledge of the facts, accepts the benefits of a transaction, may not thereafter attack the validity of the transaction to the detriment of other parties who relied thereon.\u201d\nYarborough v. Yarborough, 27 N.C. App. 100, 105-06, 218 S.E.2d 411, 415, cert. denied, 288 N.C. 734, 220 S.E.2d 353 (1975) (quoting 3 Strong\u2019s N.C. Index 2d Estoppel \u00a7 4); see Lowry v. Lowry, 99 N.C. App. 246, 253, 393 S.E.2d 141, 145 (1990) (wife\u2019s acceptance of agreement benefits for three years ratified contract, and wife therefore estopped from claiming agreement not settlement she authorized); see also Amick v. Amick, 80 N.C. App. 291, 294-95, 341 S.E.2d 613, 614-15 (1986) (defendant estopped from denying validity of separation agreement where plaintiff relied upon and performed obligations pursuant to terms thereof), and Mayer v. Mayer, 66 N.C. App. 522, 531-35, 311 S.E.2d 659, 666-68, disc. review denied, 311 N.C. 760, 321 S.E.2d 140 (1984) (husband who actively participated in wife\u2019s procurement of invalid divorce from her prior husband estopped from denying validity of that divorce).\nIt must be interjected at this point that the estoppel under consideration is \u201cquasi\u201d or equitable estoppel, under which\none is not permitted to injure another by taking a position inconsistent with prior conduct, regardless of whether the person had actually relied upon that conduct.\nId. at 532, 311 S.E.2d at 666. Under \u201ctrue\u201d estoppel, \u201cone party induces another to rely to his damage upon certain representations.\u201d Id. (quoting Comment b, Restatement (Second) of Conflict of Laws \u00a7 74 (1971)).\nApplication of equitable estoppel in general is dependent upon the parties\u2019 actions along with the facts and circumstances of each individual case. See Mayer, 66 N.C. App. at 534-35, 311 S.E.2d at 667-68. In the case sub judice, we particularly note defendant\u2019s efforts to modify, correct and enforce stipulated terms of the Order. For example, although defendant\u2019s affidavit indicated he withdrew consent within \u201chours of the agreement,\u201d his attorney\u2019s 11 July 1995 letter to the Department, mailed eighteen days following the hearing, reflects defendant\u2019s acknowledgment and approval of the Order. The letter, copied to Judge Stone, plaintiff\u2019s counsel and defendant,\nplace [ed] [the Department] on notice . . . [that] the parties reached a settlement on all pending issues ... [and agreed to drop all motions] including [a] Motion . . . requesting assistance from [the] agency.\nNothing in the record indicates defendant objected to or repudiated the foregoing statement of his attorney.\nIn addition, defendant\u2019s 29 September 1995 verified motion to modify provisions of the Order regarding custody of the parties\u2019 minor children alleged that, subsequent to entry of the Order, plaintiff purposefully deprived defendant of custodial rights stipulated in the Order, providing grounds for modification thereof. Also, in his 22 February 1996 motion to correct a mistake in the visitation provisions of the Order, defendant relied upon a transcript of the 23 June 1995 hearing and alleged\n[t]he Consent Order of June 23, 1995 contains a mistake . . . [and] Defendant is in need of an Order of this Court correcting the language of the June 23, 1995 Order to accurately reflect the parties agreement which was entered into in open court.\n(emphasis added). Specifically, defendant requested that the court \u201cmodify the June 23, 1995 Order entered . . . and redraft the Order to conform with what was agreed upon by the parties.\" (emphasis added). Judge Stone granted the motion and entered an order 27 June 1996 modifying certain visitation provisions of the Order and decreeing that \u201c[a]ll other provisions of the Consent Order and Judgment. . . shall remain in full force and effect except as specifically modified\u201d therein. The record contains no interjection of an objection or appeal by defendant of this order. Finally, in a 20 June 1996 motion, defendant sought to hold plaintiff in contempt for her failure to abide by visitation terms of the Order.\nDefendant thus on two occasions failed to perfect appeals directed at the Order, acquiesced in his counsel\u2019s reliance upon the Order to deter action by the Department, twice filed motions for modification or correction of the Order citing its entry by agreement in open court, declined to object to or appeal an order providing that all terms of the Order were to remain in full force and effect, and, most significantly, sought to have plaintiff held in contempt for violation of the Order, thereby not only seeking enforcement of provisions therein but also to penalize plaintiff for failing to comply with the Order.\nIn view of the foregoing facts and circumstances, see Mayer, 66 N.C. App. at 534-35, 311 S.E.2d at 667-68, we hold defendant may not now avoid the terms of the Order which he acknowledged, acquiesced in and attempted to modify and enforce over a two year period. See Hill v. Hill, 94 N.C. App. 474, 479, 380 S.E.2d 540, 544 (1989) (wife bound by subsequent ratification of property settlement agreement). Moreover, defendant\u2019s actions also affected plaintiff\u2019s rights and obligations under the Order. See Yarborough, 27 N.C. App. at 105-06, 218 S.E.2d at 415. Defendant in essence ratified and affirmed the Order and is now estopped from seeking to avoid its effect.\nPrior to concluding, we acknowledge that a consent order signed without the consent of each party is void, Highway Commission, 5 N.C. App. at 632, 169 S.E.2d at 134, and emphasize that equitable estoppel is a \u201cpersonal disability of the party attacking the [order]; it is not a function of the [order] itself,\u201d Mayer, 66 N.C. App. at 536, 311 S.E.2d at 668. As this Court in Mayer explained in rejecting a husband\u2019s reliance upon his wife\u2019s invalid divorce in which he had participated:\nWe are not unmindful of [husband\u2019s] argument that to estop him from questioning the divorce\u2019s validity would have, as he puts it, the effect of validating a marriage which G.S. \u00a7 51-3 declares a nullity. There is a difference, however, between declaring a marriage valid and preventing one from asserting its invalidity. The theory behind the equitable estoppel doctrine is not to make legally valid a void divorce or to make an invalid marriage valid, but rather, to prevent one from... avoid [ing] obligations as a spouse. ... It is a personal liability of the party attacking the divorce judgment; it is not a function of the divorce decree itself.\nId. (citations omitted). The effect of our decision, therefore, is not to make a void court order valid, but rather to preclude defendant, by virtue of his ratification thereof, from subsequently attacking the validity of the Order.\nAs to defendant\u2019s remaining arguments, suffice it to say we have carefully considered each and find them unpersuasive.\nIn short, Judge Bray\u2019s findings of fact, supported by the evidence and therefore conclusive on appeal, Wynnewood Corp., 27 N.C. App. at 615, 219 S.E.2d at 790, sustain her determination that defendant ratified the Order by his actions and was thus equitably estopped from challenging the validity thereof. Judge Bray therefore did not abuse her discretion in denying defendant\u2019s Motion. See Burwell, 30 N.C. App. at 112, 226 S.E.2d at 221.\nAffirmed.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Morgenstem & Bonuomo, P.L.L.C., by Barbara R. Morgenstem, for plaintiff-appellee.", "Donna Ambler Davis, P.G., by Donna Ambler Davis, for defendant-appellant." ], "corrections": "", "head_matter": "KANWALJOT G. CHANCE, Plaintiff v. DAVID JAMES HENDERSON, Defendant\nNo. COA98-889\n(Filed 7 September 1999)\n1. Judgments\u2014 stipulated separation agreement \u2014 lack of consent \u2014 trial court reads agreement or evidence that parties understood\nIn a case involving a stipulated agreement hearing addressing child support, child custody, visitation, alimony, property division, and attorney fees, the trial court did not err in failing to set aside an order as void for lack of consent because: (1) the trial court .can read the agreement in open court; or (2) it has to be reasonably apparent from the record that both parties either read or understood the stipulated terms. Although plaintiff\u2019s attorney rather than the trial court read the stipulated terms of settlement, the record reflects that both parties understood the stipulated terms because both answered affirmatively when the judge asked if the settlement as read by plaintiff\u2019s attorney was fair and equitable and fully reflected what had been agreed upon.\n2. Estoppel\u2014 equitable \u2014 stipulated separation agreement\u2014 lack of consent \u2014 ratification by subsequent actions\nAlthough defendant-husband attempted to withdraw his consent following a hearing but prior to entry of an order concerning a stipulated agreement addressing child support, child custody, visitation, alimony, property division, and attorney fees, the trial court did not err in failing to set aside the order as void for lack of consent because subsequent actions of defendant ratified and validated the order. Equitable estoppel precludes defendant from denying the validity of the order in light of: (1) his later efforts to modify, correct, and enforce stipulated terms of the order; (2) the fact he failed on two occasions to perfect appeals directed at the order; and (3) the fact he acquiesced in his counsel\u2019s reliance on the order to deter action by the Department of Social Services.\nAppeal by defendant from order filed 20 March 1998 by Judge Susan E. Bray in Guilford County District Court. Heard in the Court of Appeals 18 March 1999.\nMorgenstem & Bonuomo, P.L.L.C., by Barbara R. Morgenstem, for plaintiff-appellee.\nDonna Ambler Davis, P.G., by Donna Ambler Davis, for defendant-appellant." }, "file_name": "0657-01", "first_page_order": 689, "last_page_order": 699 }