dissenting.
I agree that there exists a presumption that a notary acknowledgment, if complete and regular on its face, is true as to the facts stated therein. Lee v. Rhodes, 230 N.C. 190, 193, 52 S.E.2d 674, 676 (1949). This presumption, however, does not arise until the person executing the instrument has appeared before the .certifying officer and made an acknowledgment of the instrument. Id.; see also Lawson v. Lawson, 321 N.C. 274, 278, 362 S.E.2d 269, 272 (1987). Herein lies the source of my disagreement with the majority’s conclusion that the trial court properly granted summary judgment in favor of defendant.
Plaintiffs evidence establishes that, although a notary public was present when he and defendant executed some documents in connection with their separation, the notary was not present when the parties executed the purported separation agreement, nor did either party thereafter, before the notary, acknowledge his signature on it. Nevertheless, a certificate of acknowledgment appears on the document. “A certificate of acknowledgment may always be impeached ... by showing that the grantor or other person executing the instrument in question never appeared before the officer purporting to take the acknowledgment, and never actually acknowledged the instrument.” 1 Am. Jur. 2d, Acknowledgments § 99 (1962); cf. Lee, 230 N.C. at 193, 52 S.E.2d at 676 (general rule is that where grantor has appeared and made some kind of acknowledgment before certifying officer, a certificate regular in form cannot be impeached by merely denying that acknowledgment was taken in manner certified (emphasis added)). Thus, because proper acknowledgment by both parties before a certifying officer is a prerequisite to the validity of a separation agreement, N.C.G.S. § 52-10.1 (1991), plaintiffs evidence presents a genuine issue of material fact as to the validity of the separation agreement at issue, and therefore summary judgment for defendant was improperly granted by the trial court.
*661I also disagree with the majority’s conclusion that plaintiff is estopped from asserting the invalidity of the purported separation agreement by virtue of his “having chosen to recognize the agreement by treating it as valid for two years without complaint.” An improperly executed separation agreement is void ab initio, Lawson, 321 N.C. at 277, 362 S.E.2d at 271, and provides no basis for estoppel. Bolin v. Bolin, 246 N.C. 666, 669, 99 S.E.2d 920, 922-23 (1957). I am, however, of the opinion that, if on remand the purported agreement was determined to be void for lack of proper acknowledgment, plaintiff would, under the general principles set forth in Harroff v. Harroff, 100 N.C. App. 686, 692, 398 S.E.2d 340, 344-45 (1990), disc. rev. denied, 328 N.C. 330, 402 S.E.2d 833 (1991), be estopped from pleading N.C.G.S. § 50-11 as a bar to any claim by plaintiff for alimony or equitable distribution.
Based on the foregoing, I would reverse the order of the trial court granting summary judgment for defendant.