Opinion
No. COA12–1234.
2013-06-4
Carlos SIMPSON, Plaintiff v. Juana AVILA, Defendant.
Carlos Simpson, pro se, for plaintiff-appellee. Law Office of Sarah C. D'Amato, by Sarah Carr D'Amato, for defendant-appellant.
Appeal by defendant on writ of certiorari from order entered 19 December 2011 by Judge Lunsford Long in Chatham County District Court. Heard in the Court of Appeals 13 March 2013. Carlos Simpson, pro se, for plaintiff-appellee. Law Office of Sarah C. D'Amato, by Sarah Carr D'Amato, for defendant-appellant.
CALABRIA, Judge.
Juana Avila (“defendant”) appeals on writ of certiorari from an order finding that the purported marriage between defendant and Carlos Simpson (“plaintiff”) was null and void and annulling the marriage. We reverse and remand.
Plaintiff and defendant (collectively “the parties”) met in June 2001. According to the marriage license, filed with the Chatham County Register of Deeds, the parties were married on 21 August 2002, in Chatham County, North Carolina. Both parties claimed this was their second marriage and that their last marriages had ended in divorce. The marriage application required a date when the last marriage ended and the parties' license indicated that defendant was divorced in July 2001. In April 2003, defendant applied for naturalization in the United States. On this application, defendant indicated that she was divorced in Acapulco in February 2002.
At some point, the parties separated and began steps to dissolve their marriage. On 18 April 2011, plaintiff was ordered to pay defendant post-separation support. On 10 June 2011, plaintiff filed a complaint, pro se, for annulment, alleging that defendant was still married to her first husband, Silverio Dominguez (“Dominguez”) when the parties married, and thus he was entitled to an annulment. In the complaint, plaintiff indicated that he had previously sought a copy of defendant's divorce decree, but defendant had failed to provide the information. Defendant answered, denying that she was married at the time she entered into a marriage with plaintiff and claiming that she “was under no legal obligation to provide the [p]laintiff with a copy of her divorce decree....” Defendant also moved for Rule 11 sanctions, claiming that plaintiff assisted defendant “in obtaining the divorce [from Dominguez] in 2002.”
On 25 July 2011, a hearing was conducted in Chatham County District Court. At this hearing, defendant produced a document she contended was her divorce judgment, but the court questioned its validity because it was unsigned by either defendant or Dominguez and because it was not “certified to be a true and correct copy by any official in Mexico.” After hearing defendant's testimony and examining the purported divorce judgment, the court continued the case, and indicated that defendant must present evidence to prove the divorce occurred.
The case was heard again on 12 September 2011 and at this time defendant produced a different document, alleging it was proof of her divorce. There were four documents introduced which contained four different dates of divorce: July 2000, July 2001, February 2002, and April 2002. The trial court delayed its ruling to investigate the authenticity of the documents and seek assistance from the School of Government.
On 19 December 2011, the trial court entered an order, finding that there were inconsistencies in defendant's testimony at each hearing and that defendant had offered several different dates of divorce. Based on defendant's testimony, the court found that neither defendant nor Dominguez were domiciled in Mexico at the time of the alleged divorces. The trial court concluded that the purported divorce judgments were void and not entitled to comity and that defendant was married to Dominguez when she married plaintiff. Therefore, the court determined that the purported marriage between plaintiff and defendant was null and void and annulled the marriage. Defendant appeals.
Defendant argues that the trial court committed reversible error by concluding as a matter of law that the marriage between the parties was void ab initio. Specifically, defendant contends that the trial court did not make findings of fact or conclusions of law, which established that plaintiff had overcome the presumption that his marriage to defendant was valid. We agree.
On appeal from a judgment entered after a bench trial, the standard of review is “whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.” Cartin v. Harrison, 151 N.C.App. 697, 699, 567 S.E.2d 174, 176 (2002) (citation omitted). “The well-established rule is that findings of fact by the trial court supported by competent evidence are binding on the appellate courts even if the evidence would support a contrary finding. Conclusions of law are, however, entirely reviewable on appeal.” Mussa v. Palmer–Mussa, –––N.C. ––––, ––––, 731 S.E.2d 404, 408–09 (2012) (citation omitted).
Either party to a marriage may apply to the district court to have the marriage declared void if the marriage was “contracted contrary to the prohibitions contained in the Chapter entitled Marriage, or declared void by said Chapter” and the district court “may declare such marriage void from the beginning, subject, nevertheless, to G.S. 51–3.” N.C. Gen.Stat. § 50–4 (2011). “All marriages between any two persons ... either of whom has a husband or wife living at the time of such marriage ... shall be void.” N.C. Gen.Stat. § 51–3 (2011). However, the law presumes a second marriage to be valid. Parker v. Parker, 46 N.C.App. 254, 257, 265 S.E.2d 237, 239 (1980). Furthermore, “[p]roof that one party had not obtained a divorce is not sufficient to overcome the presumption.” Id. “[W]hen the existence of a second marriage is established before the finder of fact, the second marriage is presumed valid until the ‘ attacking party ’ demonstrates that the second marriage is invalid.'' Mussa, 366 N .C. at ––––, 731 S.E.2d at 409. After the second marriage is established, the burden shifts to the plaintiff to show that (1) the defendant's prior marriage was lawful and (2) that the first marriage had not been dissolved at the time plaintiff and defendant were married. Id. at ––––, 731 S.E.2d at 410.
In the instant case, the evidence supported a finding that a marriage occurred between plaintiff and defendant. The trial court found that the parties were purportedly married on 8 August 2002 and the parties' marriage certificate was entered into evidence. According to the guidelines in Mussa, the burden shifts to plaintiff to show that (1) the defendant's prior marriage was lawful and (2) that the first marriage had not been dissolved at the time plaintiff and defendant were married. Id. Here, plaintiff satisfied the first requirement. Defendant testified that she was previously married and offered documents purporting to be divorce judgments between defendant and Dominguez. If defendant and Dominguez were never married, they could not subsequently be divorced. The trial court's finding that defendant and Dominguez were married in Mexico in 1996 is supported by the evidence and satisfies the first requirement of Mussa.
However, defendant contends that there are no findings of fact, nor conclusions of law, indicating that plaintiff proved the second requirement, that defendant's first marriage was not dissolved at the time plaintiff and defendant married. The trial court made procedural findings of fact, which clarified that plaintiff had the burden of proving that defendant's prior marriage was not dissolved at the time she married plaintiff. The trial court also made findings of fact that the evidence offered regarding defendant's divorce from her prior marriage was conflicting.
At the 25 July 2011 hearing, defendant testified that she accompanied her husband to the United States in May 2000, that they separated in March 2001 and that they filed for divorce on 17 July 2001 in Mexico. She brought a purported divorce decree at the hearing that “was dated July 15, 2000 and was registered July 18, 2001.” The language in the purported divorce decree was entirely in Spanish, was unsigned by either defendant or her former husband, and was not “certified to be a true and correct copy by any official in Mexico.”
At the 12 September 2011 hearing, defendant offered a different document, which purported to be another divorce judgment. This “purported divorce was entered on April 11, 2002 and was registered June 5, 2002....” But “this document was based on a year of separation, and stated that the date of separation was January 20, 2000; however, the parties did not separate until March, 2001 as established by defendant's testimony at the July 25, 2011 hearing.” In addition, the trial court also found that two other dates were offered as potential dates for defendant's divorce. Plaintiff produced two legal documents in which defendant had provided two different dates of her divorce: her marriage certificate to plaintiff alleging she was divorced in July 2001 and a naturalization application alleging she was divorced in February 2002. Based on this information the court found:
11. The record establishes that defendant has asserted four different potential dates of divorce: the July 15, 2000 date ...; the July, 2001 date ...; the April 11, 2002 date ... and the February, 2002 date.... None of these purported dates of divorce have been shown to have any validity or authenticity and the discrepancies in the dates have not been explained....
Based on these findings, the trial court concluded that both of the purported divorce judgments offered were void and not entitled to comity. Therefore, the trial court declared that the purported marriage between plaintiff and defendant was null and void, and annulled the marriage.
We agree with the trial court that the documents produced at the hearing did not confirm that defendant had obtained a valid divorce. However, we also agree with defendant that the findings of fact and conclusions of law do not meet the requirements of the Mussa Court. The trial court did not make findings indicating that plaintiff met his burden of proving that the first marriage “had not been dissolved at the time plaintiff and defendant were married.” Mussa at ––––, 731 S.E.2d at 410. Therefore, we must remand the case for further findings of fact which specifically address the second prong of the Mussa test. If the trial court determines more evidence is required to support findings of additional facts, another hearing may be held to gather the necessary evidence. See Bodie v. Bodie, ––– N.C.App. ––––, ––––, 727 S.E.2d 11, 21 (2012) (“The trial court may, in its discretion, agree to receive additional evidence concerning [the] unresolved issues.”).
Since the trial court failed to make sufficient findings of fact to support its conclusion that plaintiff's marriage to defendant was null and void, we reverse and remand the case for additional findings.
Reversed and Remanded.
Report per Rule 30(e).