Fulton v. Vickery

• Decision Date: 05 March 1985
• Docket Number: No. 8415SC575,8415SC575
• Citation: 73 N.C.App. 382,326 S.E.2d 354
• Court: North Carolina Court of Appeals
• Parties: Lynn Stone FULTON v. Charles E. VICKERY, Thomas A. Fulton, Jr., and Universal Life Church, Inc.

Page 354

326 S.E.2d 354

73 N.C.App. 382

Lynn Stone FULTON v. Charles E. VICKERY, Thomas A. Fulton, Jr., and Universal Life Church, Inc.

No. 8415SC575.

Court of Appeals of North Carolina.

March 5, 1985.

Cheshire & Parker by Lucius M. Cheshire and D. Michael Parker, Hillsborough, for plaintiff-appellant.

Winston, Blue & Rooks by J. William Blue, Jr., Chapel Hill, for defendant-appellee Thomas A. Fulton, Jr.

Smith, Patterson, Follin, Curtis, James & Harkavy by Michael K. Curtis, Greensboro, for defendant-appellee Universal Life Church, Inc.

BECTON, Judge.

I

This appeal arises from a civil action filed by plaintiff, Lynn Stone Fulton, alleging that defendants had negligently and/or fraudulently induced her to enter into a void marriage with defendant Thomas Fulton. She prayed for both compensatory and punitive damages, and further prayed that a deed executed to the defendant Fulton be set aside. Defendant Vickery was never served with the Complaint and is thus not involved with this appeal. In their Answers, defendant Fulton and defendant Universal Life Church, Inc. (Church) denied the material allegations of the Complaint, pleaded the statute of limitations as an affirmative defense, pleaded N.C.Gen.Stat. Sec. 51-1.1 (1984) as a bar to plaintiff's claims, and also contended that to allow plaintiff damages from them would violate the First and Fourteenth Amendments of the United States Constitution. Both defendants moved for summary judgment, which motions were granted. Plaintiff appeals.

A defendant will prevail on a motion for summary judgment if it can demonstrate that (1) an essential element of plaintiff's claim is nonexistent; (2) through discovery plaintiff could not present enough evidence to support an essential element of the claim, or (3) plaintiff could not surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). Applying the law to the facts before us, we find that (1) G.S. Sec. 51-1.1 (1984) validated the marriage in question so that the essential element of an invalid marriage was nonexistent; (2) even if the marriage had been invalid, plaintiff could not produce sufficient evidence to support either her fraud or negligence claims; and (3) even if plaintiff could produce sufficient evidence, the applicable statutes of limitations bar her claims. We therefore affirm the trial court's entry of summary judgment.

II Factual Background

On 7 June 1972, plaintiff Lynn Stone Fulton, was married to defendant Thomas Fulton. The ceremony was performed by defendant Charles E. Vickery, an attorney and minister in the defendant Universal Life Church, Inc. Vickery's credentials as minister in the Church were evidenced by a certificate he obtained by sending his name, address, and a sum of money to Church headquarters. Plaintiff and defendant Fulton lived together until 29 May 1979, at which time they entered into a separation agreement. The separation agreement recited that "the parties were married to each other on 7 June 1972 in Chapel Hill, North Carolina," and provided, inter alia, that the plaintiff would deed defendant Fulton her interest in their residence, and that he, in turn, would pay plaintiff the value of this interest.

In March 1980, plaintiff filed suit against defendant to enforce the separation agreement. On 2 December 1980, while this original action was pending, the North Carolina Supreme Court handed down State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980). This opinion reversed a Court of Appeals decision and held that a marriage ceremony performed by a person ordained by the Universal Life Church was not a valid ceremony of marriage for purposes of a bigamy prosecution.

Defendant Fulton thereupon filed an Amended Answer and subsequently moved for summary judgment on the grounds that a valid marriage was a condition precedent to a binding separation agreement, and that the parties had never been lawfully married to one another as their marriage ceremony had been performed by a minister of the Universal Life Church. Summary judgment was granted by Judge James H. Pou Bailey on 10 June 1981. Plaintiff appealed from that order. On 3 July 1981, the North Carolina General Assembly passed an act which validated marriages performed by Universal Life Ministers prior to that date, unless they had already been invalidated by a court of competent jurisdiction. This "curative statute" is currently codified at G.S. Sec. 51-1.1 (1984). On 14 July 1981, plaintiff withdrew her appeal from the order granting summary judgment. Plaintiff filed another action, apparently similar to the instant one, on 22 June 1981, upon which she took a voluntary dismissal without prejudice. This action was refiled as the instant case on 11 January 1983.

III

Both defendants argue that G.S. Sec. 51-1.1 (1984) validated the marriage between defendant and plaintiff, and that plaintiff is thus precluded from bringing an action predicated upon an invalid marriage. We agree. The text of G.S. Sec. 51-1.1 (1984) follows:

Any marriages performed by ministers of the Universal Life Church prior to July 3, 1981, are validated, unless they have been invalidated by a court of competent jurisdiction, provided that all other requirements of law have been met and the marriages would have been valid if performed by an official authorized by law to perform wedding ceremonies.

Plaintiff, however, advances several arguments to rebut the contention that her marriage is validated by the statute. First, she contends that by its reference to the "Universal Life Church" rather than the "Universal Life Church, Inc.," the statute is inapplicable here. This suggestion is without merit. Courts are permitted to supply obvious omissions to a statute in order to carry out legislative intent. Abernethy v. Bd. of Comm'rs of Pitt County, 169 N.C. 631, 86 S.E. 577 (1915).

Plaintiff next contends that to validate her marriage would deprive her of property without due process of law since at the time the curative statute was passed, she had already instituted this lawsuit. This contention is also without merit. First, the statute does not exempt cases pending in litigation at the time of its enactment. More importantly, the statute does not deprive appellant in any way; it simply gives her the same protection of the law available to all other married women. See In re Heath, 292 N.C. 369, 233 S.E.2d 889 (1977) (for proceeding to survive repeal of underlying statute authorizing proceeding or creating cause of action, there must be a saving clause in repealing act).

Finally, plaintiff argues that the order which granted summary judgment in favor of defendant Fulton in plaintiff's original suit to enforce the separation agreement, is an invalidation of the marriage by a court of competent jurisdiction, and the curative statute, by its own terms, is inapplicable. We again disagree. An order granting summary judgment in an action to enforce a separation agreement cannot be deemed the equivalent of a judicial determination that the marriage was invalid. First, there is no evidence that Judge Bailey's order expressly declared that the marriage was invalid. Second, although matters determined by summary judgment are considered final determinations on the merits and thus res judicata in subsequent actions, T.A. Loving Co. v. Latham, 15 N.C.App. 441, 190 S.E.2d 248 (1972), this doctrine is only applicable when there is an identity of parties, subject matter, and of issues. Kleibor v. Rogers, 265 N.C. 304, 144 S.E.2d 27 (1965). The only identity that exists between the original action and the present one is that of parties.

Finally, our General Statutes contain the exclusive means by which a divorce or annulment must be obtained. Not only was no such statutory procedure ever utilized by either party, the method by which divorce or annulment is obtained, and that by which a summary judgment is granted, are dissimilar.

N.C.Gen.Stat. Sec. 50-10 (1984) provides that, in an action for divorce or annulment, the material facts in every complaint must be found by a judge or a jury. See Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703 (1961). The trial court in the original action did not make such findings of fact. See also N.C.Gen.Stat. Sec. 50-4 (1984) ("What marriages may be declared void on application of either party"); Lea v. Lea, 104 N.C. 603, 10 S.E. 488 (1899) (action brought under current G.S. Sec. 50-4 (1984) is, procedurally speaking, an action for divorce).

If Judge Bailey's order can be said to invalidate the marriage, it does so by implication only. We know of no authority supporting the termination of a marriage by such indirect means, and we would hardly encourage the dissolution of marriages outside statutory formalities.

As the marriage between plaintiff and defendant Fulton was never invalidated, then G.S. Sec. 51-1.1 (1984) applies to validate the marriage. The net effect of the statute is to render the marriage valid from its inception, as the marriage in question was voidable, rather than void. While a voidable marriage is valid for all civil purposes until annulled by a competent tribunal, in a direct proceeding, a void marriage is a nullity and may be impeached at any time. Geitner v. Townsend, 67 N.C.App. 159, 312 S.E.2d 236, disc. rev. denied, 310 N.C. 744, 315 S.E.2d 702 (1984). In North Carolina, only bigamous marriages have thus far been declared absolutely void. 1 R. Lee, North Carolina Family Law Sec. 18 (4th ed. 1979); Redfern v. Redfern, 49 N.C.App. 94, 270 S.E.2d 606 (1980). All other marriages are voidable. See, e.g., Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963) (despite statutory language, marriage involving under age party is merely voidable, not void, and may be ratified). As the curative statute validated the marriage from its inception, and as the marriage was never terminated by divorce, annulment, or by any sort of judicial decree, the marriage between...