Judge GREENE dissenting.

PHILLIPS, Judge.

On 8 May 1986 plaintiff sued to set aside a separation and property settlement agreement entered into with defendant the preceding October. After answering the complaint defendant moved for summary judgment and following a hearing at which affidavits and other materials were considered the court granted the motion by an order that contained detailed findings of fact. The facts pertinent to plaintiff's appeal follow:

Defendant is a career military officer with vested retirement benefits, as plaintiff knew. The eleven page separation and property settlement agreement prepared by his attorney was admittedly executed by plaintiff after she "okayed the proposed draft, with some modifications." Inter alia, the agreement provided for the custody and support of their one child; for defendant to pay plaintiff alimony of $250 a month until she died or remarried; for defendant to arrange for her and the child to use Army hospital, medical, post exchange, and other facilities and services until her death or remarriage; for the temporary possession and eventual sale of their only real property and a division of the proceeds; for an itemized division of their automobiles, bank accounts, clothing, furniture, household utensils, and other personal property- and for his military retirement pension to remain his sole and separate property. The agreement stated that a full disclosure had been made of their assets; that each had been advised of the right to seek separate counsel and waived "any issues or defenses based upon not having separate counsel"; and that the settlement was in full satisfaction of each's right to equitable distribution. The only ground asserted in the complaint for setting the agreement aside was defendant's fraud in allegedly violating their confidential relationship by misrepresenting or concealing from her the advice that he received from his lawyer concerning alimony and his military pension. The specific facts allegedly constituting fraud are stated in plaintiff's complaint as follows: Prior to 1 October 1985 she and defendant discussed their difficulties and began to negotiate the settlement terms ultimately put in the agreement; during the negotiations defendant obtained legal advice but she did not; after defendant consulted counsel they continued their negotiations and discussed the terms agreed to with defendant's attorney; and at the time the agreement was signed she —

did not know and understand the difference between the ramifications of alimony and property settlement as it pertains to the military pension and the Defendant did know or should have known and understood from his legal counseling the significance and importance of the difference; the Defendant did not inform Plaintiff of this significant difference or that Plaintiff should obtain independent legal advice, but secured the signature of Plaintiff on the Separation Agreement by misrepresentation and/or concealment of material facts as to the rights of the Plaintiff to Defendant's military pension.

Defendant answered or defended these allegations by admitting that he obtained legal advice in regard to their negotiations and did not impart that advice to her; by denying that he did not advise her to obtain counsel of her own; and by asserting that she negotiated the agreement and had waived any possible right she might have had to rescind it by retaining its benefits after obtaining legal advice.

Plaintiff rightly contends that the court's detailed findings of fact were irregular and unnecessary. In determining whether summary judgment is appropriate the judge's function is not to decide the truth of issues raised by the pleadings and other materials of record, but to determine whether any genuine issue of material fact exists that requires adjudication. Wachovia Bank Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, disc. rev. denied, 292 N.C. 734, 235 S.E.2d 788 (1977). Nevertheless, plaintiff was not prejudiced by the court's findings, even assuming arguendo that some of them were erroneous, because the materials before the court establish without contradiction that plaintiff's fraud action is fatally deficient in two respects. First, though plaintiff's fraud claim is explicitly based on the confidential relationship that usually exists between husband and wife, plaintiff's verified complaint and affidavit, which states that before the agreement was made they had been negotiating settlement terms and defendant to her knowledge had employed a lawyer to advise him with respect thereto, establishes that they had become adversaries and that the confidential relationship that formerly existed between them was terminated before the agreement was executed. Murphy v. Murphy, 34 N.C. App. 677, 239 S.E.2d 597 (1977), modified on other grounds, 295 N.C. 390, 245 S.E.2d 693 (1978). Second, plaintiff's fraud claim is also based on defendant's failure to reveal to her the advice that he received from his lawyer as to the significant "difference between the ramifications of alimony and property settlement as it pertains to the military pension," and fraud cannot be based upon ignorance of the law. Biesecker v. Biesecker, 62 N.C. App. 282, 302 S.E.2d 826 (1983).

Plaintiff's action is unenforceable and was properly dismissed for a third reason: Though the action to set aside the settlement agreement is based on plaintiff's failure to receive legal advice in regard to it, the record shows without contradiction that after learning that defendant had consulted a lawyer about their negotiations and after being explicitly informed or reminded that she could consult counsel of her own if she so desired, she chose to execute the agreement without so doing and thereby expressly contracted not to use that failure to invalidate the agreement. Being sui juris, plaintiff was free to so contract and nothing in the record suggests that she is not bound thereby.

Affirmed.

Judge COZORT concurs.

Judge GREENE dissents.