Draughon v. Draughon

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380 S.E.2d 547 (1989)

E.D. Eldrange DRAUGHON, Appellee, v. Louise Bill DRAUGHON, Appellant.

No. 8812DC889.

Court of Appeals of North Carolina.

July 5, 1989.

*548 Blackwell, Russ & Strickland by John Blackwell, Jr. and Jill C. Miller, Fayetteville, for plaintiff-appellee.

Harris, Sweeny & Mitchell by Ronnie M. Mitchell and W. Trent Fox, Jr., Fayetteville, for defendant-appellant.

PHILLIPS, Judge.

The order setting aside the equitable distribution award has no authorized basis, in our opinion, and must be vacated. Though subsection (6) of Rule 60(b), N.C. Rules of Civil Procedure, gives the trial court broad power to serve the ends of justice by vacating a judgment or order for justifiable reasons, Thomas v. Thomas, 43 N.C.App. 638, 260 S.E.2d 163 (1979), the record plainly establishes that the order involved was not set aside for such a reason. The order was not set aside because it was deemed to be erroneous, unjust, or unfairly arrived at; it was set aside, as the record plainly shows, because the parties could not agree as to a modification of the order and plaintiff failed to preserve his right of appeal while the modification was being considered. The parties' failure to agree as to the order's modification is not a justifiable reason for setting the order aside; for they resorted to the court in the first place because of their inability to agree and the stability of the judicial order arrived at after an adversarial hearing cannot be made to depend upon their agreement to it. And setting the order aside because plaintiff lost his right to appeal through his own oversight amounted to using Rule 60(b)(6) as a substitute for appeal, which our law does not permit. Town of Sylva v. Gibson, 51 N.C. App. 545, 277 S.E.2d 115, disc. rev. denied, appeal dismissed, 303 N.C. 319, 281 S.E.2d 659 (1981). If the order remained set aside we have no reason to suppose that the next equitable distribution order would be acquiesced in by both parties; and under the circumstances recorded the integrity and stability of our judicial process requires that the duly entered and presumably correct order be reinstated and upheld. Highfill v. Williamson, 19 N.C.App. 523, 199 S.E.2d 469 (1973).

Another reason that the order should not have been set aside at plaintiff's request is that he had previously upheld the order's validity by seeking its enforcement and defendant's punishment for not complying with its terms; for the law does not look with favor upon parties who attack court orders they have previously relied upon. Amick v. Amick, 80 N.C.App. 291, 341 S.E.2d 613 (1986); Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (1984); Harris v. Harris, 50 N.C.App. 305, 274 S.E.2d 489, disc. rev. denied, appeal dismissed, 302 N.C. 397, 279 S.E.2d 351 (1981); 31 C.J.S. Estoppel Sec. 117 (1964).

Vacated.

ARNOLD and JOHNSON, JJ., concur.