Domestic Relations – Separation Agreement – Consent Judgment – Public Employees – Pension – Defined Benefit Plan — Mutual Mistake Claim

Digh v. Digh (Lawyers Weekly No. 12-16-1251, 18 pp.) (Cressie H. Thigpen Jr., J.) Appealed from Burke County District Court (Sherri W. Elliott, J.) N.C. App. Unpub.

Holding: In a 1998 consent judgment, the defendant-husband agreed to make the plaintiff-wife the alternate payee of his retirement benefits equal to half of the account attributable to the amount accrued during the marriage, plus interest. Despite the husband’s testimony that, to spite his ex-wife, he would have withdrawn his contributions and taken around $60,000 rather than receiving expected retirement benefits of over $200,000, since the wife did not testify, the husband’s testimony was not enough to show the parties shared a mutual mistake of fact when they signed the consent judgment.

We affirm the trial court’s denial of the husband’s motion to modify the 1998 judgment.