Domestic Relations – Equitable Distribution – Consent Order – Rule 59 Motion – Untimely – QDRO 

Defendant titled his 2016 motion a “Motion for Entry of [QDROs]”; however, the 2005 consent order which required the entry of qualified domestic relations orders in this case required plaintiff to make a distributive award to defendant from plaintiff’s retirement accounts. Since defendant’s motion seeks further relief, i.e., passive gains, defendant’s motion is actually a motion to amend the judgment pursuant to N.C. R. Civ. P. 59. Rule 59 motions must be filed within 10 days of the entry of judgment, so defendant’s motion was not timely filed. 

We affirm the trial court’s dismissal of defendant’s motion. 

A distributive award is a sum certain and does not include gains and/or losses. 

Moreover, a party attacking a consent judgment must show that consent was not in fact given or that consent was obtained by mutual mistake or fraud. Defendant does not allege either that consent was not in fact given or that the 2005 consent order was obtained by mutual mistake or fraud. 

Bracey v. Murdock (Lawyers Weekly No. 011-178-22, 7 pp.) (Valerie Zachary, J.) (Darren Jackson, J., concurring in the result only without separate opinion) Appealed from Wake County District Court (Brian Ratledge, J.) Nancy Grace, Kelley Cash and Zach Underwood for plaintiff; Thomas Currin for defendant. 2022-NCCOA-705