Kiser v. Kiser, 499PA88

• Citation: 385 S.E.2d 487,325 N.C. 502
• Decision Date: 09 November 1989
• Docket Number: No. 499PA88,499PA88
• Court: United States State Supreme Court of North Carolina
• Parties: Frances Pratt KISER v. Winford J.B. KISER.

Page 487

385 S.E.2d 487

325 N.C. 502

Frances Pratt KISER v. Winford J.B. KISER.

No. 499PA88.

Supreme Court of North Carolina.

Nov. 9, 1989.

[325 N.C. 503] On plaintiff's petition for discretionary review prior to determination by the Court of Appeals, pursuant to N.C.G.S. § 7A-31(b), of an order granting defendant's motion for a jury trial entered by Vaden, J., on 3 October 1988 in District Court, Guilford County. Heard in the Supreme Court 10 April 1989 and 11 September 1989.

Walter W. Baker, Jr. and Jeffrey L. Mabe, High Point, for plaintiff-appellant.

Joe D. Floyd, Schoch, Schoch and Schoch by Arch Schoch, Jr. and Michael W. Sigler, High Point, for defendant-appellee.

MARTIN, Justice.

This case raises the question of whether there is a right to trial by jury in an equitable distribution action under the North Carolina Constitution. We answer the question in the negative.

In brief, the facts show that the plaintiff filed a complaint requesting an absolute divorce from her husband and equitable distribution of all marital property. In his answer, the defendant requested a jury trial to resolve issues of fact concerning several matters in controversy, including valuation and acquisition of certain property, intent to make a gift to the marital estate of certain property, and alleged dissipation of marital assets.

In response, the plaintiff moved for an order denying trial by jury. The trial court ruled in favor of the defendant's motion, thus permitting the jury trial. Notice of appeal was immediately given by the plaintiff. This being a case of first impression An examination of the historical development of the right to trial by jury in this state is helpful in understanding the constitutional guarantee as it exists today. North Carolina has had three constitutions during the course of its history. Sanders, A Brief History of the Constitutions of North Carolina, in North Carolina History 795 (J.L. Cheney, Jr. ed. 1981). The first constitution, which was promulgated in 1776, contained a provision expressly preserving the right to trial by jury. That provision, article I, section 14, declared:

with this Court and because of the important legal questions involved, this Court agreed to hear the case on discretionary review prior to determination by the Court of Appeals, pursuant to N.C.G.S. § 7A-31(b).

That in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.

N.C. Const. of 1776, art. I, § 14.

This constitution did not include a separate Judicial Article as does the current constitution, but rather left the organization of the court system in the hands of the legislators. Sanders, A Brief History of the Constitutions of North Carolina, in North Carolina History 795 (J.L. Cheney, Jr. ed. 1981). Although most American jurisdictions did not recognize a right to trial by jury in equity cases at that time, the North Carolina legislature expressly provided such a right by statute in 1782. 1782 N.C.Sess.Laws ch. 11, § 3. See Van Hecke, Trial by Jury in Equity Cases, 31 N.C.L.Rev. 157 (1952-53); cf. Chesnin and Hazard, Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999 (1974) (demonstrating the use of jury trials in eighteenth century courts of equity). Prior to the passage of that statute, the legislature had denied equity jurisdiction entirely to judges because of the sentiment that all issues of fact in North Carolina should be tried by jury and the belief that this right to a jury trial would be infringed upon if a judge was permitted to sit as the trier of fact in a court of equity. 1 Ashe, History of North Carolina 714 (1908). History shows that the legislature finally bent to pressure from attorneys to establish equitable jurisdiction in the superior courts in 1782, but only after expressly establishing a statutory right to trial by jury in equity cases brought in those courts. 1782 N.C.Sess.Laws ch. 11, § 3; Van Hecke, Trial by Jury in Equity Cases, 31 N.C.L.Rev. 157, 159 (1952-53). Under that statute, North Carolina courts routinely provided binding jury verdicts for questions of fact arising in cases in equity. Van Hecke, Trial by Jury in Equity Cases; see, e.g., Strudwick v. Ashe, 7 N.C. 207 (1819); Williams v. Howard, 7 N.C. 74 (1819); Thigpen v. Balfour, 6 N.C. 242 (1813); Jordan v. Black, 6 N.C. 30 (1811); Jackson v. Marshall's Adm'r., 5 N.C. 323 (1809); Smith v. Bowen, 3 N.C. 296 (1804); Mourning v. Davis, 3 N.C. 219 (1802); Scott v. McDonald, 3 N.C. 98 (1799).

The citizens of North Carolina ratified their second constitution in 1868. With only a few grammatical changes, that constitution retained the language found in article I, section 14 of the Constitution of 1776 regarding substantive rights to a jury trial. N.C. Const. of 1868, art. I, § 19. In the time between the drafting of the original constitution and the drafting of the Constitution of 1868, however, procedures regarding the right to trial by jury in equity cases had undergone changes in North Carolina. See generally Van Hecke, Trial by Jury in Equity Cases, 31 N.C.L.Rev. 157, 159-60 (1952-53). In 1823, the legislature replaced the statutory right to trial by jury in equity cases with a statutory right to an advisory jury only in those cases. ¹ Despite this statutory change, however, equity cases continued to be tried before a binding jury through the device of a In addition to the substantive right to a jury trial found in article I of the original constitution, the Constitution of 1868 contained a Judicial Article which included a section addressing jury trials. That section, article IV, section 1, stated:

feigned issue. See generally Chesnin and Hazard, Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999 (1974). Through this procedure, the jury in the law courts would determine the feigned issue, thus deciding the factual question in the underlying equity case as well.

The distinction between actions at law and suits in equity, and the forms of all such actions and suits shall be abolished, and there shall be in this State but one form of action, for the enforcement or protection of private rights or the redress of private wrongs which shall be denominated a civil action.... Feigned issues shall be abolished and the fact at issue tried by order of court before a jury.

N.C. Const. of 1868, art. IV, § 1. ²

This Court consistently held that article IV, section 1 of the Constitution of 1868 was drafted with the clear intent of abolishing burdensome procedural differences between cases tried in equity and those tried at law. See, e.g., Worthy v. Shields, 90 N.C. 192 (1884); Chasteen v. Martin, 81 N.C. 51 (1879); Lee v. Pearce, 68 N.C. 76 (1873). In that respect this Court held in Lee:

The provision in our present Constitution, by which the distinction between actions at law and suits in equity is abolished, and the subsequent legislation affects only the mode of procedure, and leaves the principles of law and equity intact.... [I]n other words the principles of both systems are preserved, the only change being, that these principles are applied and acted on in one court and in one mode of procedure.

Id. at 79-80. Accordingly, this section created no additional substantive rights to trial by jury in all civil cases, but rather assured that the jury trial rights substantively guaranteed by article I, section 19 (now article I, section 25) would apply equally to questions of fact arising in cases brought in equity as well as cases brought at law.

Our third and current constitution, which was ratified in 1970, also contains two sections addressing trial by jury. Article I, the Declaration of Rights section, addresses the substantive constitutional right to trial by jury in civil cases in almost the exact language found in the original Constitution of 1776, stating:

Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.

N.C. Const. of 1971, art. I, § 25.

In addition to preserving this substantive right to trial by jury under article I, the current constitution again reiterates the abolition of procedural distinctions between cases brought in equity and those brought at law in article IV, the judicial section of the constitution. Section 13 of article IV, which parallels article IV, section 1 (later article IV, section 11) of the Constitution of 1868 states in relevant part:

(1) Forms of Action. There shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action, and in which there shall be a right to have issues of fact tried before a jury.

N.C. Const. of 1971, art. IV, § 13(1).

Thus, article I, section 25 contains the sole substantive guarantee of the important right to trial by jury under the state constitution while article IV, section 13 ensures that the right as defined in article I will be available in all civil cases, regardless of whether they sound in law or equity.

The right to trial by jury under article I has long been interpreted by this Court to be found only where the prerogative existed by statute or at common law at the time the Constitution of 1868 was adopted. In re Huyck Corp. v. Mangum, Inc., 309 N.C. 788, 309 S.E.2d 183 (1983); N.C. State Bar v. Dumont, 304 N.C. 627, 286 S.E.2d 89 (1982); In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); In re Wallace, 267 N.C. 204, 147 S.E.2d 922 (1966); Utilities Commission v. Trucking Co., 223 N.C. 687, 28 S.E.2d 201 (1943); Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897 (1943); Railroad v. Parker, 105 N.C....