{ "id": 8551595, "name": "FRED HAZARD v. MARGARET C. HAZARD", "name_abbreviation": "Hazard v. Hazard", "decision_date": "1978-03-21", "docket_number": "No. 7715DC480", "first_page": "668", "last_page": "670", "citations": [ { "type": "official", "cite": "35 N.C. App. 668" } ], "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": "35 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615514 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0639-01" ] }, { "cite": "95 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "245 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601922 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/245/0001-01" ] }, { "cite": "138 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "262 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571125 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0685-01" ] } ], "analysis": { "cardinality": 227, "char_count": 3399, "ocr_confidence": 0.803, "pagerank": { "raw": 1.2182311705621098e-07, "percentile": 0.5975979680668642 }, "sha256": "f8737196b49a861e53413b3ca89cf0e465e907365d9b8bd311baa9272d57dc2b", "simhash": "1:583936482e4b947a", "word_count": 555 }, "last_updated": "2023-07-14T19:24:32.681632+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Martin concur." ], "parties": [ "FRED HAZARD v. MARGARET C. HAZARD" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant 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\u2019 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\u2019s action for divorce was not based upon the consent judgment which defendant sought to attack.\nWe 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.\nAffirmed.\nJudges Morris and Martin concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Battle and Bayliss, by F. Gordon Battle, William H. Bayliss, and Dalton Loftin, for plaintiff appellee.", "Manning, Jackson, Osborn & Frankstone, by David R. Frankstone, for defendant appellant." ], "corrections": "", "head_matter": "FRED HAZARD v. MARGARET C. HAZARD\nNo. 7715DC480\n(Filed 21 March 1978)\nJudgments \u00a7 21.2\u2014 divorce action \u2014 attack on consent judgment improper \u2014 independent action required\nIn an action for divorce on the ground of one year\u2019s separation, defendant was not entitled to attack a consent judgment rendered in an earlier action between the two parties, since 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.\nAppeal by defendant from Paschal, Judge. Judgment entered 17 March 1977, in District Court, ORANGE County. Heard in the Court of Appeals 9 March 1978.\nPlaintiff initiated this action seeking an absolute divorce from defendant on the ground of one year\u2019s separation. Defendant answered and alleged, among other things, that plaintiff\u2019s prayer for absolute divorce be denied because the consent judgment in defendant\u2019s prior action for alimony without divorce was procured by fraud upon the defendant. Defendant also sought reformation of the prior consent judgment.\nEvidence put on by plaintiff tended to show that he and defendant were married in 1943, that they separated on 15 August 1975, and that he had been a resident of North Carolina for more than six months prior to the institution of this action. The defendant attempted to introduce evidence that the earlier consent judgment was procured by fraud, but the plaintiff objected, and the objection was sustained.\nThe trial judge found that the parties had been lawfully married and had subsequently lived separate and apart for more than one year, and that plaintiff was a citizen and resident of North Carolina for more than six months before the institution of this action. He granted the absolute divorce. Defendant appeals.\nBattle and Bayliss, by F. Gordon Battle, William H. Bayliss, and Dalton Loftin, for plaintiff appellee.\nManning, Jackson, Osborn & Frankstone, by David R. Frankstone, for defendant appellant." }, "file_name": "0668-01", "first_page_order": 696, "last_page_order": 698 }