Holsomback v. Holsomback

161 S.E.2d 99 (1968)

273 N.C. 728

Frances Guess HOLSOMBACK v. Joseph B. HOLSOMBACK.

No. 769.

Supreme Court of North Carolina.

May 22, 1968.

*102 Lester W. Owen, Durham, for plaintiff appellant.

Weatherspoon & Pulley, by Joe C. Weatherspoon, Hofler, Mount & White, by Richard M. Hutson, II, Durham, for defendant appellee.

SHARP, Justice.

When statement of case on appeal to the Supreme Court has not been served on the appellee within the time allowed, G.S. § 1-287.1 requires the Superior Court judge, upon motion by the appellee, to enter an order dismissing the appeal "provided the appellant has been given at least five (5) days' notice of such motion." This section further specifically provides that it "shall not apply in any case with the respect to which there is no requirement to serve a case on appeal."

The only question posed by this appeal is whether Judge May had authority to set aside the consent judgment entered by Johnson, J., on 17 March 1965. Appellant's assignments of error all relate to the record proper. Therefore, she was not required to serve a case on appeal upon defendant. Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451. In Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18, the defendant, appealing from a judgment on the pleadings, failed to serve a case on appeal. Upon the appellee's motion, made under G.S. § 1-287.1, the judge dismissed her appeal. Notwithstanding, in apt time, she docketed it in this Court. In denying the plaintiff's motion to dismiss the appeal, Parker, C. J., said, "The only error relied on by appellant in her appeal * * * is presented by the record proper. Consequently, the record proper constitutes the case to be filed in this Court, and defendant was not required to serve it on appellee or his counsel. * * * Appellant filed the record proper in apt time in this Court. Plaitniff's motion to dismiss the appeal is without merit." Id. at 448, 135 S.E.2d at 20-21.

Similarly, in this case, the only requirement was that appellant docket her appeal within the time required by the rules of this Court. This she did. Judge Bailey could not deprive plaintiff of the right to have this Court review her case for errors appearing upon the record proper. 1 Strong, N.C.Index, Appeal and Error § 21 (1957). We also note that, at the time Judge Bailey dismissed her appeal, appellant had not had the five-days' notice which G.S. § 1-287.1 requires. Statutory requirements with reference to notice are strictly construed where the giving of notice must be relied upon to divest the recipient of a right. In re Appeal of Harris, 273 N.C. 20, 159 S.E.2d 539. Appellant's motion to dismiss plaintiff's appeal is denied.

In the consent judgment which Judge May purported to set aside, the parties agreed upon a division of their property and upon the amount of alimony which defendant should pay plaintiff until her death or remarriage. This judgment was not only a contract between the parties; it was also a decree of the court. The order with reference to the payment of future installments of alimony was, therefore, subject to modification by the court in the event of changed conditions. The agreed division of property, a separable provision, however, was beyond the power of the judge to modify without the consent of both *103 parties. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; Briggs v. Briggs, 178 Or. 193, 165 P.2d 772, 166 A.L.R. 666. In respect to its property provisions, the judgment of 17 March 1965 is an ordinary consent judgment which, absent the consent of the parties thereto, can be modified or set aside only for fraud or mistake in an independent action. King v. King, 225 N.C. 639, 35 S.E.2d 893; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209.

Judge May did not purport to exercise his right to modify the alimony provision of the consent judgment. Plaintiff did not agree either to modify or vacate it in any respect. Judge May, therefore, had no authority to set it aside or to direct that plaintiff's one-half of the net proceeds of the sale of the residence be credited upon defendant's arrearages under Judge Hobgood's judgment.

The judgment of 26 July 1967 from which plaintiff appeals is

Reversed.

HUSKINS, J., took no part in the consideration or decision of this case.