1. Appeal and Error--preservation of issues-_impermissibly changing theory on appeal
The trial court did not err by permitting defendant husband to seek an annulment even
though plaintiff wife contends defendant earlier took the position that the parties were legally
married, because: (1) plaintiff has impermissibly sought to change the theory presented in the
instant appeal from that which was presented to the trial court for determination; and (2) unlike in
Fungaroli v. Fungaroli, 53 N.C. App. 270 (1981), this case does not implicate the full faith and
credit clause or the public policy in favor of it that would preclude defendant's right to seek an
annulment of the marriage.
2. Annulment-_fraud_-concealment of number of prior marriages--Georgia law
The trial court did not err by annulling the parties' marriage on the ground of fraud even
though the only misrepresentation concerned the number of plaintiff wife's prior marriages,
because: (1) applying Georgia law, based on the parties being married and living a portion of their
married life in Georgia, the nature of consent by the parties required to constitute an actual
contract of marriage was voluntary consent without any fraud practiced upon either; (2) the
Georgia application for a marriage license required the bride and groom to disclose, upon oath,
the number of previous marriages, the method by which those marriages were dissolved, the
grounds for dissolution, and the date and place; (3) contrary to plaintiff's assertion, hiding five of
seven previous marriages does not fall within a de minimus standard even if that standard existed;
and (4) none of the cases from other jurisdictions cited by plaintiff involve a party hiding as many
previous marriages as in the instant case.
H. Paul Averette for plaintiff-appellant.
Charles W. McKeller for defendant-appellee.
CALABRIA, Judge.
Cheryl W. Mayo (“plaintiff”) appeals from a judgment of
annulment of her marriage to Frank E. Mayo (“defendant”). We
affirm. On 17 February 1999, plaintiff and defendant applied for a
marriage license in Georgia. Each of them represented, in the
block designated “number of previous marriages,” two previous
marriages. Plaintiff and defendant married on 9 April 1999. In
2001, defendant learned and later confirmed plaintiff had been
previously married seven times rather than two times.
Subsequently, defendant accepted employment and moved to California
and then communicated to plaintiff that he considered the marital
relationship at an end.
Plaintiff filed for a divorce from bed and board, abandonment,
indignities, and adultery in Transylvania County on 3 September
2002, seeking post-separation support, alimony, and equitable
distribution. In plaintiff's complaint, she alleged the existence
of a lawful marriage. Defendant admitted the existence of a valid
marriage in his answer. After protracted litigation dealing with,
inter alia, post-separation support in favor of plaintiff and
interim distributions, a separate judgment of absolute divorce was
entered on 25 March 2003. Thereafter on 11 March 2004, defendant
submitted a motion in the cause for an annulment of the marriage.
After conducting a hearing on the issues, the trial court entered
a judgment annulling the marriage between the parties. From that
judgment, plaintiff appeals, asserting the trial court erred in (1)
permitting defendant to seek an annulment after earlier taking the
position that the parties were legally married and (2) annulling
the marriage on grounds of fraud when the only misrepresentation
concerns the number of prior marriages.I. Contrary Positions
[1] Plaintiff asserts in her first assignment of error that
defendant's pleadings include admissions of a lawful marriage, and
annulment should not have been allowed in light of these
admissions. We disagree.
At the hearing, plaintiff raised two initial challenges to the
annulment proceeding: jurisdiction and standing. With respect to
the standing argument, plaintiff argued defendant lacked standing
to seek an annulment on the grounds that he was seeking to have the
marriage annulled after a judgment of absolute divorce was entered.
Specifically, plaintiff argued the following at the hearing:
So here you have a Movant who is trying to ask
the Court for an annulment . . . but has
already gotten a divorce from the person he's
asking the Court to render the Annulment for.
So I think there's a serious issue of standing
to even raise that . . . . I've never heard
of anyone coming in later after a divorce has
been granted and then . . . asking that . . .
the prior marriage be declared null . . . . I
don't think there is [standing to do that].
In her brief to this Court, however, plaintiff does not argue
defendant lacked standing. Rather, plaintiff argues “defendant's
ready admission that the parties were lawfully married in his
pleadings, coupled with his lengthy silence on his alleged ground
for an annulment necessarily demonstrate that the defendant was
precluded from seeking an annulment.” In so doing, plaintiff has
impermissibly sought to change the theory presented in the instant
appeal (defendant is bound by the representations in his pleadings)
from that which was presented to the trial court for determination
(defendant cannot seek an annulment because a judgment of divorcehad already been entered). See Weil v. Herring, 207 N.C. 6, 10,
175 S.E. 836, 838 (1934) (noting our courts do not permit the
submission of new theories, not previously argued, because “the law
does not permit parties to swap horses between courts in order to
get a better mount [on appeal]”).
Moreover, plaintiff cites and primarily relies on this Court's
holding in Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787
(1981), involving a plaintiff husband who filed a complaint for
divorce in North Carolina and, after being ordered by a North
Carolina court to pay alimony and transfer custody of the child to
the defendant wife, sought a decree of annulment in the courts of
Virginia. The Virginia court annulled the parties' marriage, and
this Court subsequently declined to give effect to the Virginia
decree. Along with other reasons given, this Court noted it would
violate North Carolina's public policy to give full faith and
credit to the Virginia decree where plaintiff went to another state
and sought an annulment in contradiction to his previous
representations of a valid marriage solely to extinguish the
defendant wife's right to alimony. Id., 53 N.C. App. at 279, 280
S.E.2d at 793. This case does not implicate the full faith and
credit clause or the public policy in favor of it; accordingly,
Fungaroli does not preclude defendant's right to seek an annulment
of the marriage. This assignment of error is overruled.
II. Grounds for Annulment
[2] In her second assignment of error, plaintiff argues the
trial court erred in annulling the marriage because “plaintiff'salleged concealment of the number of her prior marriages [does] not
rise to the level of fraud that is necessary to sustain an
annulment.” Initially, we note the parties sought and the trial
court applied Georgia law in determining substantively whether an
annulment should be granted the parties, who were married and lived
a portion of their married life in Georgia.
Under Georgia law, the nature of consent by the parties
required to constitute an actual contract of marriage is voluntary
consent “without any fraud practiced upon either.” Ga. Code Ann.
§ 19-3-4 (2004). “Marriages of persons . . . fraudulently induced
to contract shall be void” unless there occurs by the party so
defrauded “a subsequent consent and ratification of the marriage,
freely and voluntarily made, accompanied by cohabitation as husband
and wife[,]” which renders the marriage valid. Ga. Code Ann. § 19-
3-5 (2004). An annulment, under Georgia law, operates in the same
manner as “a total divorce between the parties of a void marriage
and shall return the parties thereto to their original status
before marriage.” Ga. Code Ann. § 19-4-5 (2004). The parties have
not cited, nor can we find, a Georgia case concerning the effect of
a misrepresentation concerning the number of prior marriages on the
validity of the marriage. However, we do note that the Georgia
application for a marriage license requires the bride and groom to
disclose, under oath, the number of previous marriages, the method
by which those marriages were dissolved, the grounds for
dissolution, and the date and place. We hold plaintiff's argument,
that her concealment of five of her seven previous marriages doesnot “constitute[] sufficient fraud to serve as a basis to annul a
marriage,” is erroneous for two reasons.
First, the statutory law of Georgia is couched in terms of
“any” fraud. The relevant question, therefore, is whether there
exists fraud, not whether the existing fraud is sufficient. We do
not read the term “any” to mean that there might not exist some de
minimus standard in Georgia which would not justify annulling a
marriage; however, a misrepresentation hiding five previous
marriages while disclosing two does not, in our opinion, fall
within such a de minimus standard.
Second, none of the cases from other jurisdictions cited by
plaintiff involve a party hiding as many previous marriages as in
the instant case. Certainly, the greater the concealed number of
marriages, the more force has the argument of the injured party.
The application for a marriage license in Georgia further evinces
that state's interest in the circumstances of previous marriages,
which are given under oath. In light of the statutory language of
Georgia, the requirements of disclosure on the application for a
marriage license in Georgia, and the comparison between the number
of concealed versus the number of revealed marriages, we perceive
no error in the trial court's annulment of the marriage in the
instant case. This assignment of error is overruled.
Affirmed.
Judges McGEE and ELMORE concur.
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