Clark v. Foust-Graham

• Citation: 615 S.E.2d 398
• Decision Date: 19 July 2005
• Docket Number: No. COA04-1266.,COA04-1266.
• Court: United States State Supreme Court of North Carolina
• Parties: Kelly Goodwin CLARK, Executrix of the Estate of James Lester Goodwin, Plaintiff, v. Wesley FOUST-GRAHAM, Defendant.

615 S.E.2d 398

Kelly Goodwin CLARK, Executrix of the Estate of James Lester Goodwin, Plaintiff, v. Wesley FOUST-GRAHAM, Defendant.

No. COA04-1266.

Court of Appeals of North Carolina.

July 19, 2005.

Appeal by defendant from judgment entered 5 April 2004 and order entered 11 May 2004 by Judge A. Robinson Hassell in Guilford County District Court. Heard in the Court of Appeals 24 March 2005.

Booth Harrington & Johns, L.L.P., by A. Frank Johns, Greensboro, for plaintiff appellee.

Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, Greensboro, for defendant appellant.

McCULLOUGH, Judge.

Defendant Wesley Foust-Graham appeals from a district court order annulling her marriage to the late James Lester Goodwin. We affirm.

Facts

Wesley Foust-Graham and James Goodwin were married by a Guilford County magistrate on 12 April 2002. At the time of the marriage, Foust-Graham was approximately forty years of age, and Goodwin was eighty. Goodwin died on 23 October 2003.

Prior to Goodwin's death, his daughter Kelly Clark, acting as his guardian ad litem, filed an action on his behalf to annul the marriage on the grounds of incompetency, lack of consent, undue influence, and impotence. After Goodwin's death, Clark filed a motion to substitute herself as plaintiff in her capacities as the executrix of Goodwin's estate and beneficiary entitled to take under his will. The trial court permitted Clark to continue the suit in her role as the executrix of Goodwin's estate, but denied her motion to be substituted as a beneficiary under his will.

The evidence at trial tended to show the following: Foust-Graham and Goodwin met in 2001. Goodwin owned a considerable amount of real estate, and Foust-Graham, a real estate broker, inquired as to his willingness to sell some of his property. A business relationship ensued pursuant to which Foust-Graham listed, and occasionally sold, property for Goodwin.

For reasons that Foust-Graham has characterized as "personal and professional," she and defendant began spending more time together during the early months of 2002. In March of 2002, the woman who lived with and cared for Goodwin, Sally Cross, decided that she needed to get away from Goodwin because he began verbally abusing her. Before leaving, Cross telephoned Foust-Graham and asked her to "see to [Goodwin's] needs." Thereafter, Foust-Graham began cooking for Goodwin, doing his grocery shopping, washing his laundry, and helped with the feeding of his animals. She also cleared a room in his house for use as an office. By April of 2002, Foust-Graham was spending as many as ten to twelve hours each day at Goodwin's home and also speaking with him on the telephone each day. According to Foust-Graham, she became so consumed by Goodwin that she had little time to do anything else.

On the day that Foust-Graham and Goodwin were married, Goodwin telephoned a business acquaintance, John Waldrop, and told him, "I need you to come to the magistrate's office immediately. They're locking me up.... I'm in trouble. They are locking me up. I need you to come down here and get me." During the same telephone call, Waldrop's girlfriend, Shirley Swaney, ended up speaking to Foust-Graham, who admitted that Goodwin was not in jail but told Swaney that she and Goodwin needed help. Waldrop and Swaney then drove to the magistrate's office; Goodwin and Foust-Graham were not there to meet them. A few minutes later, Foust-Graham drove up in a black pick-up truck with Goodwin in the passenger's side. Foust-Graham then got out of the truck with "an armful of papers." Once they had all entered the magistrate's office, Foust-Graham asked Waldrop and Swaney to be witnesses for the marriage.

Waldrop and Swaney were concerned because Foust-Graham was African-American, and Goodwin had previously told them that he did not like black people, and he had commonly used derogatory racial epithets in their presence. Prior to the ceremony, Swaney said to Goodwin, "I thought you told me you didn't like n____s," to which Goodwin replied, "I don't." Goodwin later stated, "She's not black." Waldrop and Swaney did not believe that Goodwin was taking the ceremony seriously because, among other things, he danced "a little jig" after the magistrate pronounced Goodwin and Foust-Graham husband and wife. Following the ceremony, Foust-Graham told Waldrop and Swaney not to contact Goodwin's family because they "wouldn't understand."

Plaintiff's witness, Dr. Michelle Haber opined that, by late 2001, Goodwin was exhibiting signs of Stage II dementia and Alzheimer's disease. This opinion was based upon his conduct at the marriage ceremony and information that Goodwin occasionally got lost in familiar places, claimed to know very little about gardening when he had kept a garden all of his life, and stopped talking in favor of permitting Foust-Graham to speak on his behalf. Dr. Haber further opined that because of his condition, Goodwin would have been very inclined to "go along" with sexual advances. There was evidence that Goodwin procured Viagra as early as 22 March 2002, and that Foust-Graham sometimes went to get Goodwin's prescriptions for Viagra filled. There was also evidence that in early May of 2002, after the marriage, Foust-Graham and Goodwin engaged in actual or attempted sexual activity before going to an attorney and having some of Goodwin's property holdings converted into property held by the two of them as a tenancy by the entirety.

Foust-Graham provided testimony from which the jury could infer that Goodwin was competent to enter into the marriage, that he freely consented to the marriage, and that she and Goodwin successfully engaged in sexual intercourse approximately one month following the marriage. Likewise, she denied exerting any undue influence over Goodwin.

A jury returned a verdict in Foust-Graham's favor with respect to the issues of competency, consent, and impotence. However, the jury found that Foust-Graham procured the marriage to Goodwin by exerting undue influence upon him. Accordingly, the trial court entered an order annulling the marriage. The trial court also denied Foust-Graham's motion for judgment notwithstanding the verdict. From these orders, Foust-Graham now appeals.

I.

In her first argument on appeal, Foust-Graham contends that an action to annul her marriage to Goodwin could not be maintained by Goodwin's executrix following his death. We do not agree.

"No action abates by reason of the death of a party if the cause of action survives." N.C. Gen.Stat. § 1A-1, Rule 25(a) (2003). Generally, "[the] right[] to prosecute or defend any action or special proceeding, existing in favor of or against [a deceased] person . . . shall survive to and against the personal representative or collector of his estate." N.C. Gen.Stat. § 28A-18-1(a) (2003). Thus, an annulment action survives unless it is a "cause[] of action where the relief sought could not be enjoyed, or granting it would be nugatory after death." N.C. Gen.Stat. § 28A-18-1(b) (2003). The North Carolina Supreme Court has held that an action for annulment may be commenced after the death of a person entitled to an annulment "by a person or persons whose legal rights depend upon whether [the] marriage is valid or void." Ivery v. Ivery, 258 N.C. 721, 730, 129 S.E.2d 457, 463 (1963) (holding that a decedent's brother and heir-at-law could bring an action to annul decedent's marriage based on incompetency).

We note also that the statute which establishes the grounds for annulling a marriage does not preclude an action for annulment based upon the death of one of the wedded parties. Rather, the statute provides that "[n]o marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the parties for any . . . cause[] . . . except for bigamy." N.C. Gen.Stat. § 51-3 (2003). A plain reading of this statute evinces the Legislature's intent to bar a postmortem annulment action brought by a sufficiently interested party only if (1) one of the spouses in a void or voidable marriage has died, and (2) the marriage was followed by cohabitation and the birth of issue.

Likewise, we observe that, in many cases, the granting of an annulment cannot be considered nugatory relief. Indeed, as a practical matter, the marital status of a decedent may greatly influence the distribution of his estate, and the execution of his testamentary wishes may hinge on whether a challenged marriage is adjudged valid or void. See, e.g., N.C. Gen.Stat. § 29-30 (2003) (entitling a surviving spouse to choose between an intestate share or an elective share and a life estate in one-third of the real estate of which a deceased spouse was seized during coverture); N.C. Gen.Stat. § 30-3.1 (2003) (entitling surviving spouse of a decedent to claim an elective share of the decedent's estate); N.C. Gen.Stat. § 30-15 (2003) (entitling surviving spouse of an intestate or a testator to a year's allowance of $10,000 payable out of the personal property of the deceased spouse); N.C. Gen.Stat. § 31-5.3 (2003) (entitling surviving spouse of a testator to petition for an elective share of the testator's estate if the will was executed prior to the marriage).

In the instant case, Clark initiated annulment proceedings on Goodwin's behalf as his guardian ad litem while Goodwin was still living. Following Goodwin's death, Clark moved to substitute herself as plaintiff in her capacity as the executrix for Goodwin's estate, and the trial court granted this motion. Given that the annulment action was commenced on Goodwin's behalf prior to his passing, and substantial property rights hinge on the validity of the marriage between Goodwin and Foust-Graham, we conclude that the action for annulment did not abate upon Goodwin's death. Moreover, given that N.C. Gen.Stat. § 28A-18-1 permits the personal representative of a decedent to bring an action which survives his death, we conclude that Clark, in her...