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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
KELLY GOODWIN CLARK, Executrix of the
Estate of JAMES LESTER GOODWIN,
No. 03 CVD 6867
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
Booth Harrington & Johns, L.L.P., by A. Frank Johns, for
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for
Defendant Wesley Foust-Graham appeals from a district court
order annulling her marriage to the late James Lester Goodwin. We
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 eachday 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
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 respectto 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.
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 capacity as executrix of
Goodwin's estate, was entitled to pursue Goodwin's annulment suit.
This assignment of error is overruled.
In her second argument on appeal, Foust-Graham contends that
the trial court erred by submitting the issue of undue influence to
the jury because a marriage may not be voided based upon a finding
of undue influence. We do not agree.
The marriage of a person who is at the time incapable of
contracting from want of will is voidable. N.C. Gen. Stat. § 51-3
(2003); Ivery, 258 N.C. at 730, 129 S.E.2d at 463 (holding that
such a marriage is not void ipso facto; but, if and when declaredvoid in a legally constituted action, . . . is void ab initio).
Thus, for example, it is generally accepted that in North Carolina
a marriage procured by duress is voidable because one of the
parties suffered from want of will. See Suzanne Reynolds, 3 Lee's North
Carolina Family Law § 3.22 (5th ed. rev. 1993) (applying N.C. Gen.
Stat. §§ 51-1 and 51-3 and the common law of contracts); Taylor v.
White, 160 N.C. 38, 40, 75 S.E. 941, 942 (1912) ('All marriages
procured by force or fraud, or involving palpable error, are
void[able], for here the element of mutual consent is wanting, so
essential to every contract.') (citation omitted). Significantly,
our Supreme Court has characterized duress as the extreme of undue
influence. In re Estate of Loftin, 285 N.C. 717, 722, 208 S.E.2d
670, 674-75 (1974). However, neither the Supreme Court, nor this
Court, has addressed whether undue influence is a ground for
Undue influence is said to exist where there has been a
fraudulent influence over the mind and will of another to the
extent that the professed action is not freely done but is in truth
the act of the one who procures the result. Id. 'There are four
general elements of undue influence: (1) a person who is subject to
influence; (2) an opportunity to exert influence; (3) a disposition
to exert influence; and (4) a result indicating undue influence.'
In re Will of Dunn, 129 N.C. App. 321, 328, 500 S.E.2d 99, 104
(citation omitted), disc. review denied in part and dismissed in
part, 348 N.C. 693, 511 S.E.2d 645 (1998). Our Supreme Court hasidentified the following factors as relevant in determining whether
a testamentary document was the result of undue influence:
1. Old age and physical and mental weakness
[of the victim].
2. That the [alleged victim] is in the home
of the beneficiary and subject to his
constant association and supervision.
3. That others have little or no opportunity
to see [the victim].
4. That the will is different from and
revokes a prior will.
5. That it is made in favor of one with whom
there are no ties of blood.
6. That it disinherits the natural objects
of his bounty.
7. That the beneficiary has procured its
In re Andrews, 299 N.C. 52, 55, 261 S.E.2d 198, 200 (1980)
Where these circumstances have been present, undue influence
has been recognized as a potential ground for the postmortem
invalidation of action taken during a decedent's life. See In re
Will of Sechrest, 140 N.C. App. 464, 469, 537 S.E.2d 511, 515
(2000) (will caveats), disc. review denied, 353 N.C. 375, 547
S.E.2d 16-17 (2001); Dunn, 129 N.C. App. at 327-28, 500 S.E.2d at
103-04 (will revocations). Significantly, undue influence has also
been recognized as a potential ground for nullifying documents
executed by persons in anticipation of marriage or divorce.
Loftin, 285 N.C. at 722-23, 208 S.E.2d at 674-75 (prenuptial
agreement); Coppley v. Coppley, 128 N.C. App. 658, 664-66, 496S.E.2d 611, 617 (separation agreements), disc. review denied, 348
N.C. 281, 502 S.E.2d 846 (1998).
Consistent with the definition of undue influence and the
application of the doctrine by the courts of this state, we hold
that if a person's consent to marry was procured by undue
influence, he was incapable of contracting from want of will,
such that the marriage is voidable pursuant to N.C. Gen. Stat.
§ 51-3. Accordingly, a marriage may be annulled on this ground
where the facts and circumstances so warrant.
In the instant case, there was evidence pertaining to each of
the factors which our Supreme Court has identified as relevant in
analyzing undue influence. See Andrews, 299 N.C. at 55, 261 S.E.2d
at 200. Specifically, Goodwin was elderly at the time of the
marriage, and there was testimony tending to establish that he was
suffering from dementia and/or Alzheimer's disease. It is not
disputed that he was subject to constant association with, and
supervision by, Foust-Graham and that he had little association
with his family or friends in the months immediately preceding the
marriage. The marriage left Goodwin's previously existing estate
plan in doubt and placed Foust-Graham in a position to take action
that would substantially reduce the amount that Goodwin's daughter
would inherit. Further, there was evidence that Foust-Graham
procured the marriage, including Goodwin's apparent confusion as to
why he was at the magistrate's office, the fact that Foust-Graham
had driven Goodwin to the magistrate's office, and the fact that
the marriage was undertaken suddenly. Accordingly, the jury couldfind that Goodwin was subject to undue influence, that Foust-Graham
had the opportunity and disposition to exert undue influence, and
that the marriage occurred as a result of undue influence. See
Dunn, 129 N.C. App. at 328, 500 S.E.2d at 104 (setting forth
elements of undue influence). As a finding of undue influence is
tantamount to a finding that Goodwin was incapable of contracting
from want of will, the trial court did not err by submitting undue
influence to the jury as a potential ground for annulment.
This assignment of error is overruled.
Throughout her brief, Foust-Graham also makes several
miscellaneous assertions in support of her main arguments on
appeal. We note that these assertions also lack merit.
For example, Foust-Graham contends that construing want of
will to include a decision procured by undue influence is
inconsistent with the constitutionally protected status of
marriage. Though the United States Supreme Court has held that
states may not unreasonably infringe upon the right to marry, it
has expressly rejected the notion that every state regulation
which relates in any way to the incidents of or prerequisites for
marriage must be subjected to rigorous scrutiny. Zablocki v.
Redhail, 434 U.S. 374, 386, 54 L. Ed. 2d 618, 631 (1978). To the
contrary, reasonable regulations that do not significantly
interfere with decisions to enter into the marital relationship may
legitimately be imposed. Id. Permitting a marriage to be voided
where the consent to marry was procured by undue influence neithersignificantly interferes with the right to marry nor
unconstitutionally exceeds the state's prerogative to impose
reasonable regulations upon the right to marry.
Likewise, Foust-Graham insists that the jury's verdict is
inconsistent inasmuch as it found that Goodwin did not marry
without giving his consent but also found that Foust-Graham exerted
undue influence upon him. In essence, the jury declined to
invalidate the marriage due to lack of consent where the evidence
tended to show that Goodwin expressed a willingness to marry Foust-
Graham at the wedding ceremony, but found that Goodwin's consent,
although given, was not freely given because he was the victim of
undue influence exerted by Foust-Graham. We are unpersuaded that
these findings are inconsistent.
Foust-Graham further argues that, notwithstanding the
foregoing analysis, her marriage to Goodwin was unassailable
because there was evidence tending to show that their nuptials were
followed by cohabitation and sexual intercourse, and such post-
marriage activity was sufficient to preclude annulment. As already
indicated, N.C. Gen. Stat. § 51-3 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. It follows that a marriage procured by
the undue influence of one of the spouses is nevertheless
invulnerable to an attack on this ground if either of the parties
is dead and the marriage was followed by both cohabitation and thebirth of issue. In the instant case, however, there was no
evidence tending to show the birth of issue into the union between
Foust-Graham and Goodwin. As such, N.C. Gen. Stat. § 51-3 does not
preclude an annulment based on undue influence. See Ivery, 258
N.C. at 730, 129 S.E.2d at 463 (In the instant case, the marriage
. . . was followed by cohabitation but not the birth of issue.
Hence, the second proviso of N.C. Gen. Stat. § 51-3 does not
In addition, we have considered the remaining arguments in
Foust-Graham's brief and have determined that they lack merit. The
corresponding assignments of error are overruled.
In conclusion, given the facts and circumstances of the
instant case, we hold that (1) the executrix of Goodwin's estate
was entitled to continue his action for annulment following his
death, and (2) the trial court did not err by submitting undue
influence to the jury as a potential ground for annulment. This
holding makes it unnecessary for us to address the cross
assignments of error presented. The trial court's order is
Judges HUNTER and LEVINSON concur.
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