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Duncan v. Duncan

Court of Appeals of North Carolina

February 18, 2014

Barbara R. DUNCAN, Plaintiff,
v.
John H. DUNCAN, Defendant.

Originally heard in the Court of Appeals 11 September 2012, with opinion filed 2 October 2012. Reconsidered pursuant to an opinion of the North Carolina Supreme Court, entered 13 June 2013.

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[Copyrighted Material Omitted]

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Appeal by Defendant from the following orders and judgment entered in the District Court, Macon County: order entered 15 October 2007 by Judge Monica Leslie; orders entered 31 March and 4 September 2008 by Judge Richard K. Walker; order entered 18 September 2009 and judgment entered 2 September 2010 by Judge Steven J. Bryant; and orders entered 14 April 2011 and 18 January 2012 by Judge Richard K. Walker.

Siemens Family Law Group, Asheville, by Jim Siemens, and Ruley Law Offices, by Douglas A. Ruley, for Plaintiff.

Hyler & Lopez, PA, by Stephen P. Agan and George B. Hyler, Jr., for Defendant.

DILLON, Judge.

I. Factual & Procedural Background

Barbara R. Duncan (Plaintiff) and John H. Duncan (Defendant) exchanged vows in two separate marriage ceremonies in North Carolina occurring twelve years apart. The first ceremony occurred on 15 October 1989 (the 1989 ceremony) and was presided over by Hawk Littlejohn, who held himself out to be a Cherokee medicine man [1] and who was ordained as a minister by the Universal Life Church. In 2001, the parties' estate planning attorney expressed his concern that the 1989 ceremony was not valid; and, accordingly, on 14 October 2001, Plaintiff and Defendant participated in a second ceremony at the First Presbyterian Church in Franklin, North Carolina (the 2001 ceremony).

In 2005, Plaintiff commenced this action seeking, inter alia, divorce, equitable distribution, alimony, and child support, alleging that the parties' date of marriage was 15 October 1989, the date of the 1989 ceremony. Defendant filed responsive pleadings alleging, inter alia, that Hawk Littlejohn was not authorized under North Carolina law to perform a valid marriage ceremony; and, therefore, the parties' date of marriage was 14 October 2001, the date of the 2001 ceremony. Accordingly, Defendant prayed the trial court to declare the 1989 ceremony invalid under North Carolina law.

Following a hearing, the trial court entered an order on 15 October 2007 (the 2007 order), concluding that the 1989 ceremony resulted in a valid marriage, that 15 October 1989 was " the date of marriage for all matters related to this Chapter 50 action" and that Defendant was estopped from contesting the validity of the 1989 ceremony.[2]

The trial court subsequently entered a number of additional orders and an equitable

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distribution judgment. Defendant appeals from the 2007 order and from a number of subsequently entered orders that he contends were affected by the 2007 order. Defendant also appeals from an order in which the trial court concluded that Plaintiff was " actually substantially dependent on [ ] Defendant for her support as of the date of separation" and a separate order in which the trial court held open the issue of whether to award attorney's fees. Because the trial court left open the award of attorney's fees, this Court, relying on our Supreme Court's decision in Bumpers v. Cmty. Bank of N. Va., 364 N.C. 195, 695 S.E.2d 442 (2010), reasoned that Defendant's appeal was interlocutory and dismissed it as untimely. Duncan v. Duncan, __ N.C.App. __, __, 732 S.E.2d 390, 392 (2012).

Following discretionary review, our Supreme Court reversed, holding that an open request for attorney's fees does not prevent a judgment on the merits from being final. Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013). On remand from our Supreme Court, we now consider the merits of Defendant's appeal.

II. Analysis

Defendant's arguments on appeal are essentially that (1) the trial court erred in its 2007 order by determining that 15 October 1989 was the date of marriage for all matters related to this action; and (2) the trial court erred in its order in which it determined that Plaintiff was actually substantially dependent on Defendant for her support as of the date of separation. For the reasons stated below, we affirm the orders of the trial court.

A. Date of Marriage

Defendant argues that the 1989 ceremony was invalid; and, therefore, that the trial court erred in establishing the date of marriage based on the 1989 ceremony. As an initial matter, we hold that the issue regarding the validity of the 1989 ceremony was properly before the trial court. A marriage based on a ceremony in North Carolina not properly solemnized pursuant to the requirements of N.C. Gen.Stat. § 51-1 is voidable. See Fulton v. Vickery, 73 N.C.App. 382, 387, 326 S.E.2d 354, 358 (1985) (stating that a marriage performed by a minister of the Universal Life Church, not otherwise cured by N.C. Gen.Stat. § 51-1.1, was voidable). A party may apply to the court for a declaration that a voidable marriage " be declared void from the beginning[.]" N.C. Gen.Stat. § 50-4 (2013). However, a voidable marriage remains valid " for all civil purposes, until annulled by a competent tribunal in a direct proceeding. " Geitner v. Townsend, 67 N.C.App. 159, 161, 312 S.E.2d 236, 238 (1984) (emphasis added).

Here, in his counterclaim, Defendant prays the court for an order " to declare [the 1989 ceremony] invalid[,]" which we believe is an application under N.C. Gen.Stat. § 50-4 for an order to " declare [a voidable] marriage void[,]" to the extent that the parties' marriage is based on the 1989 ceremony. In other words, we believe that N.C. Gen.Stat. § 50-4 applies in this case even though Defendant does not seek to annul his marriage in toto — indeed, he admits that he and Plaintiff were lawfully married by virtue of their 2001 ceremony— but merely requests that the court declare the marriage invalid insomuch as it is based on the 1989 ceremony. Further, where one party sues for divorce, we believe that a counterclaim by the opposing party seeking an order to declare the marriage invalid constitutes a " direct proceeding." See Sprinkle v. N.C. Wildlife, 165 N.C.App. 721, 735, 600 S.E.2d 473, 482 (2004) (holding that " a counterclaim is in the nature of an independent proceeding[, and] the filing of a counterclaim is to initiate a ‘ civil action’ " ).

In this case, Defendant argues that the trial court erred by concluding that the 1989 ceremony was properly solemnized and by concluding that he " was judicially and equitably estopped from arguing" otherwise. For the reasons below, we believe that the trial court erred by concluding that the 1989 ceremony was properly solemnized and that Defendant was judicially estopped from contesting the validity of the 1989 ceremony; however, we do not believe that the trial court erred by concluding that Defendant was equitably estopped from contesting the validity of the 1989 ceremony. Therefore, we affirm the 2007 order to the extent that it

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concludes that Defendant is equitably estopped from challenging the validity of the 1989 ceremony and the date of marriage, for purposes of this action, to be 15 October 1989.

1. The 1989 Ceremony Was Voidable

Regarding the validity of the 1989 ceremony, Defendant does not argue that the ceremony did not take place. Rather, he contends that Hawk Littlejohn, who officiated the ceremony, was not authorized under the North Carolina law in effect at that time to solemnize a marriage.

Our Supreme Court has held that " [a] common law marriage or marriage by consent is not recognized by this State." State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980). Rather, " [t]o constitute a valid marriage in this State, the requirements of G.S. 51-1 must be met." Id. at 486, 272 S.E.2d at 353. The version of N.C. Gen.Stat. § 51-1 in effect in 1989 required, in pertinent part, that the parties " ‘ express their solemn intent to marry in the presence of (1) an ordained minister of any religious denomination; or (2) a minister authorized by his church; or (3) a magistrate.’ " Pickard v. Pickard, 176 N.C.App. 193, 196, 625 S.E.2d 869, 872 (2006) (quoting Lynch, 301 N.C. at 487, 272 S.E.2d at 354).[3] However, when it is established that a marriage ceremony has occurred— as is the case here— " the burden of showing that it was an invalid marriage rests on the party asserting its invalidity." Overton v. Overton, 260 N.C. 139, 143, 132 S.E.2d 349, 352 (1963); see also Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945) (stating that where there is " proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage" ). Accordingly, Defendant bore the burden of demonstrating that Hawk Littlejohn was not authorized under N.C. Gen.Stat. § 51-1 to solemnize the 1989 marriage ceremony. Based on the evidence that was before the trial court, we believe that Defendant met this high burden.

The record on appeal contains a statement of the evidence that was presented to the trial court, pursuant to Rule 9(c) of our Appellate Rules.[4] With regard to the evidence presented before the trial court concerning Hawk Littlejohn's authority to solemnize the 1989 ceremony, the Rule 9(c) statement sets forth that the parties made the court aware of the Supreme Court's 1980 opinion in Lynch, supra; and, further, that the parties stipulated that Hawk Littlejohn had performed the 1989 ceremony, that he was a minister ordained by the Universal Life Church, and that the ...


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