#### J. PEYTON FULLER v. PHYLLIS M. FULLER

No. 60

(Filed 4 March 1981)

On discretionary review to review the decision of the Court of Appeals, reported without opinion and filed 15 July 1980, affirming the granting of summary judgment in favor of defendant by Paschal, J., at the 13 November 1979 Session of ORANGE Superior Court.

Plaintiff instituted this action for a divorce based upon a one-year separation. As a second cause of action, plaintiff alleged the existence of a deed of separation which he further alleged contained terms which are unreasonable, unfair, and unduly burdensome upon him. He prayed that the deed of separation be reformed or rescinded on grounds of undue influence, duress, mistake, lack of intent, lack of consideration, and changed circumstances. Defendant moved for summary judgment. At the hearing on that motion, evidence tended to show that plaintiff is Assistant Vice-President and Corporate Controller of Duke University in Durham, North Carolina. The trial court considered the affidavits and depositions of the parties and granted defendant’s motion for summary judgment on plaintiffs second cause of action. Upon plaintiffs appeal, the Court of Appeals in an opinion by Judge Webb, Judges Parker and Clark concurring, affirmed the granting of summary judgment. We allowed plaintiffs petition for discretionary review pursuant to G.S. 7A-31 on 7 October 1980.

Joseph D. Eifort, attorney for plaintiff.

Bryant, Bryant, Drew & Crill, P.A., hy Victor S. Bryant, Jr., for defendant.

PER CURIAM.

Upon review of the record, the briefs and oral arguments of counsel and the authorities there cited, we conclude that the peti*391tion for discretionary review was improvidently granted.

The order granting discretionary review is vacated; the summary judgment for defendant remains undisturbed.