Intestate Succession--election of life estate in marital home--
presumption of validity of second marriage
Even though respondents, decedent's children, contend that
petitioner was not the wife of intestate decedent at the time of
his death since petitioner allegedly had never been validly
divorced from her first husband when she married decedent, the
trial court did not abuse its discretion by finding that
petitioner was married to decedent at the time of his death and
that petitioner was entitled to elect a life estate in the
marital home in addition to a fee simple interest in the
household furnishings in lieu of an intestate share of the estate
because respondents failed to meet their burden of proof to
overcome the presumption of the validity of petitioner's second
marriage to decedent when petitioner presented evidence of a
marriage license between petitioner and decedent.
Essex, Richards, Morris, Jordan & Matus, P.A., by Stephen H.
Morris and Lisa T. Kelly, for petitioner-appellee.
Clark, Griffin & McCollum, L.L.P., by Richard S. Clark and
Bobby H. Griffin, for respondents-appellants.
HUDSON, Judge.
On 2 February 1999, petitioner filed a Notice of Election of
Life Estate in the Matter of the Estate of Daniel R. Hanner. On 4
March 1999, Daniel R. Hanner, Jr., a respondent in this issue,
filed an answer to petitioner's Notice praying that the petition be
denied. Respondent averred that petitioner was not the wife of
decedent at the time of his death. The issue was heard in a
special proceeding by the Clerk of Superior Court in Union Countyon 30 November 1999. The Clerk of Court found that petitioner was
married to the decedent at the time of his death and "made an
Election of Life Estate in the usual dwelling place of the decedent
. . . along with a fee simple interest in the household furnishings
located therein. . . ." The Clerk of Court entered an order on 16
December 1999 that a jury "shall be appointed who shall allot and
set apart" the life estate and fee simple interest in the property.
Respondents, the decedent's son and daughter, appealed the Clerk of
Court's Order. The Union County Superior Court heard respondents'
appeal de novo and entered judgment on 23 May 2000. The court
found that petitioner was married to decedent at the time of his
death, and that she was entitled to a life estate in the real
property in addition to a fee simple interest in the household
furnishings. Respondents appealed, and we affirm the trial court.
Petitioner married Craig T. Evers on 1 September 1978. They
separated and Mr. Evers filed a Petition for Dissolution of
Marriage with the Thirteenth Judicial District Court of New Mexico
seeking divorce from petitioner. On 15 August 1991, the court
entered a "FINAL DECREE" that appeared to dissolve the marriage
between Mr. Evers and petitioner. The decretal part of the decree,
however, appears to be part of a form which merely restates the
allegation of grounds for divorce. Both parties signed the "FINAL
DECREE" and married other persons soon afterward.
Petitioner married the decedent, Daniel R. Hanner, Sr., on 3
March 1992 in South Carolina, and they had no children during their
marriage. The couple lived together at 9323 Machado Drive, Indian
Trail, Union County, North Carolina up until the death of decedent,Mr. Hanner, on 1 October 1998. Decedent was survived by petitioner
and his two children from a previous marriage, Daniel R. Hanner,
Jr. and Cathryn McKnight.
Decedent Daniel R. Hanner, Sr. died intestate and petitioner
was appointed administrator of the estate. Petitioner filed a
Notice of Election of Life Estate, pursuant to N.C. Gen. Stat. §
29-30 (1999), in which she elected to take a life estate in the
marital home instead of her intestate share of the estate. At some
point, petitioner requested from the district court in New Mexico
a copy of her divorce decree from Craig Evers. On 29 October 1999,
evidently without any prompting from the parties involved, the
Thirteenth Judicial District Court of New Mexico entered a nunc pro
tunc "FINAL DECREE OF DIVORCE" for petitioner and Craig Evers.
This Decree ordered:
1. That the marriage of the parties is hereby
dissolved on the grounds of incompatibility.
2. That the effective date of this Decree
shall be considered as of August 15, 1991,
because it is clear from the attached Exhibit
"A", that the parties had a good faith basis
to believe they were divorced on that date,
and that the Honorable Martin G. Pearl
believing that he was dissolving the marriage
between the parties at the time of the signing
thereof.
The respondents objected to petitioner receiving a life estate in
the marital property, based on their contention that petitioner had
never been actually divorced and thus, she and the deceased were
never validly married. Thus began this case.
On appeal, respondents raise five assignments of error.
Because we hold that respondents failed to overcome the presumption
that the marriage between petitioner and the decedent was valid, we need only address respondents' second assignment of error. Our
Supreme Court, in Kearney v. Thomas, first articulated the
presumption of the validity of a second marriage: "[a] second or
subsequent marriage is presumed legal until the contrary be proved,
and he who asserts its illegality must prove it. In such case the
presumption of innocence and morality prevail over the presumption
of the continuance of the first or former marriage." 225 N.C. 156,
164, 33 S.E.2d 871, 877 (1945) (citations omitted). The Court in
Denson v. Grading Co. reiterated this presumption:
'[t]he decided weight of authority . . . is
that when two marriages of the same person are
shown, the second marriage is presumed to be
valid; that such presumption is stronger than
or overcomes the presumption of the
continuance of the first marriage, so that a
person who attacks a second marriage has the
burden of producing evidence of its
invalidity. When both parties to the first
marriage are shown to be living at the time of
the second marriage, it is presumed in favor
of the second marriage that the first was
dissolved by divorce.'
28 N.C. App. 129, 131, 220 S.E.2d 217, 219 (1975) (quoting Parker
v. American Lumber Corp., 56 S.E.2d 214, 216 (Va. 1949)). Here,
respondents have that burden. Petitioner presented a marriage
license issued to Daniel Richard Hanner, Sr. (decedent) and
Patricia Harris Evers (petitioner) on 3 March 1992 in York County,
South Carolina. This evidence is sufficient to invoke the
presumption that petitioner's marriage to the decedent was valid.
See Mayo v. Mayo, 73 N.C. App. 406, 410, 326 S.E.2d 283, 286 (1985)
(holding that the first wife successfully rebutted the presumption
that husband's second marriage was valid after the second wifeinvoked the presumption of legitimacy).
Respondents argue that petitioner's previous marriage to Craig
Evers was not validly dissolved, meaning that petitioner's
subsequent marriage to decedent was invalid. Respondent's
introduction of the "FINAL DECREE" entered in the Thirteenth
Judicial District Court of New Mexico does not meet respondents'
burden. We need not decide whether this "FINAL DECREE" is valid or
not, because we note that from the record it appears that the court
in New Mexico believed that it was taking an action amounting to a
final divorce between petitioner and Craig Evers.
(See footnote 1)
Here, as in other domestic law decisions, "appellate review is
limited to a determination of whether there was a clear abuse of
discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829,
833 (1985). We find no abuse of discretion in the trial court's
finding that respondents did not meet their burden of proof to
overcome the presumption of the validity of petitioner's marriage
to the decedent. Therefore, we do not address the other issues
raised by respondents.
Affirmed.
Judges McGEE and JOHN concur.
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