5. The divorce record from Jackson County,
Missouri, contains recitals of
jurisdiction and service, and those facts
are deemed to import absolute verity
unless contradicted by other parts of the
record.
6. The record of the divorce of John E.
Burrell and Hazelene Burrell from Jackson
County . . . does not contain
contradicting findings sufficient to
overcome the presumption of its validity.
7. The divorce decree entered in Jackson
County, Missouri is entitled to full
faith and credit in the State of North
Carolina.
8. At the time of his death, John E. Burrell
was legally married to Valerie James
Burrell.
The court then declared Valerie to be John's lawful widow and
surviving spouse, dismissed Valerie and Hazelene's claims, and
divided the costs equally between the two women. Hazelene appealed
the judgment and order.
[1] Hazelene first argues that it was error for the trial
court to enforce the Missouri divorce decree because the Missouri
court lacked jurisdiction to enter the divorce decree. Hazelene
avers that she did not receive proper service, and as a result, the
“fundamental standards of due process were not satisfied to obtain
jurisdiction over” her because she did not have the minimumcontacts with Missouri required by
International Shoe and
Worldwide
Volkswagen. She also claims that the trial court did not make the
findings and conclusions of law required by N.C. Gen. Stat. § 1A-1,
Rule 52, arguing that the trial court instead made findings of fact
that were essentially conclusions of law and not ultimate facts.
“The standard by which we review the findings is whether any
competent evidence exists in the record to support them.”
Hollerbach v. Hollerbach, 90 N.C. App. 384, 387, 368 S.E.2d 413,
415 (1988). Findings of fact and conclusions of law “allow
meaningful review by the appellate courts.”
O'Neill v. Southern
Nat. Bank, 40 N.C. App. 227, 231, 252 S.E.2d 231, 234 (1979).
“Findings of fact are conclusive if supported by competent
evidence, irrespective of evidence to the contrary.
”
Oliver v.
Bynum, 163 N.C. App. 166, 169, 592 S.E.2d 707, 710 (2004)
(citation
omitted).
We first address Hazelene's concern that the trial court
erroneously “made 'findings' which were effectively conclusions of
law.” N.C. Gen. Stat. § 1A-1, Rule 52 requires that a court, when
trying a matter without a jury, must “find the facts specially and
state separately its conclusions of law thereon and direct the
entry of the appropriate judgment.” N.C. Gen. Stat. § 1A-1, Rule
52
(2005).
“A 'conclusion of law' is a statement of the law
arising on the specific facts of a case which determines the issues
between the parties.”
In re Everette, 133 N.C. App. 84, 85, 514
S.E.2d 523, 525 (1999). “'[I]f [a] finding of fact is essentially
a conclusion of law . . . it will be treated as a conclusion of lawwhich is reviewable on appeal.'”
In re R.A.H., 182 N.C. App. 52,
60, 641 S.E.2d 404, 409 (2007)(citations omitted) (alteration in
original).
We acknowledge that the classification of a
determination as either a finding of fact or a
conclusion of law is admittedly difficult. As
a general rule, however, any determination
requiring the exercise of judgment, or the
application of legal principles, is more
properly classified a conclusion of law.
Everette, 133 N.C. App. at 85, 514 S.E.2d at 525 (citations and
quotations omitted).
Hazelene only argues that findings of fact Nos. 13 and 14 are
improperly categorized as findings of fact. However, we cannot
agree that these findings should be conclusions of law. We have
had an opportunity to review the documents addressed by findings of
fact Nos. 13 and 14 and it is apparent that no “exercise of
judgment” or “application of legal principles” is necessary to make
the statements to which Hazelene objects. The receipt of service
is plainly marked “deliver to addressee only,” shows a delivery
date of 11 October 1969, and bears a signature that reads,
“Hazelene Burrell.” These markings do not contradict the Missouri
divorce decree.
Hazelene next argues that the district court “failed to apply
logical reasoning from the evidentiary facts to make a finding to
determine that the Missouri judgment was adequately supported by
competent evidence.” She reasons that the trial court's decision
does not take into account contradictory evidence in the record.
However, as stated above, findings of fact are conclusive uponappeal so long as they are supported by competent evidence,
regardless of the existence of contradictory evidence.
We have reviewed the exhibits submitted for the trial court's
review, and we hold that competent evidence does exist to support
the findings of fact objected to by Hazelene, save finding of fact
No. 15.
Hazelene argues that the Missouri divorce decree is
invalid because she did not receive proper notice. A sticking
point is the recurrent use of “Mazelene” in place of “Hazelene” on
the summons and other court documents. However,
our Supreme Court
has stated, “It is also well established that a name merely
misspelled is nevertheless the same name.”
Cogdell v. Telegraph
Co., 135 N.C. 431, 438, 47 S.E. 490, 493 (1904) (citations and
quotations omitted). More recently, this Court reasoned:
Although service of process should correctly
state the name of the parties, a mistake in
the names is not always a fatal error, and as
a general rule a mistake in the given name of
a party who is served will not deprive the
court of jurisdiction. 62 Am. Jur. 2d Process
§ 18 (1972). As stated in
Patterson v.
Walton, 119 N.C. 500, 501, 26 S.E. 43 (1896),
“Names are to designate persons, and where the
identity is certain a variance in the name is
immaterial.” Also, error or defects in the
pleadings not affecting substantial rights are
to be disregarded.
Id. When original process
has been served properly and amendments to it
are to make process and pleadings consistent,
the court will retain jurisdiction.
Fountain
v. County of Pitt, 171 N.C. 113, 87 S.E. 990
(1916).
Jones v. Whitaker, 59 N.C. App. 223, 225-26, 296 S.E.2d 27, 29
(1982).
Jones distinguished itself from cases in which the proper
party was never served, holding that a party does not suffer
prejudice from a misspelled name if that party receives service.
Id. at 226, 296 S.E.2d at 30. Here, it appears that Hazelene did
receive service, as evidenced by her signature upon the receipt.
As to the issue of that signature's authenticity, we have
held:
Where acceptance of service is used, there is
a rebuttable presumption that service was
proper if the return of process bears the
defendant's signature and is dated. In order
to overcome this presumption, a defendant must
produce clear, unequivocal, and convincing
evidence of the alleged defect.
If supported
by such evidence, the findings of the trial
court are binding on this Court, although the
conclusions of law may be reviewed
de novo.
Freeman v. Freeman, 155 N.C. App. 603, 607, 573 S.E.2d 708, 711
(2002)
(citations omitted). Hazelene asserts that she successfully
rebutted the presumption of proper service by producing clear,
unequivocal, and convincing evidence that the signature is not
hers. We cannot agree.
In
Freeman, the wife argued that the signature upon the
receipt of service was not hers and had been forged by her husband.
Id. at 607, 573 S.E.2d at 711-12.
She successfully rebutted the
presumption by presenting testimony by handwriting experts that the
signature was not hers.
Id. In addition, Mrs. Freeman presented
evidence that she and her husband continued to live together as a
married couple after the purported divorce
.
Id. at 608, 573 S.E.2d
at 712. The husband even listed Mrs. Freeman as his wife on an
application for disability benefits.
Id. After reviewing the
evidence, “[t]he trial court specifically found defendant's
evidence to be 'clear, unequivocal and convincing' that defendant
had not been served with process.”
Id. Hazelene argues that it was impossible for her to have
received the summons because she did not live at the address where
it was delivered, although she admits to having lived there fifteen
years earlier. Although both Hazelene and her sister, Ethel
Campbell, testified that Hazelene had moved away from the address
in question by the time the summons was signed, it appears that the
judge did not find that testimony credible for the reasons stated
below. Although a handwriting expert is not required in every
case, one might have been helpful here. Valerie submitted
photocopies of Hazelene's signature from other documents for our
comparison with the signature on the summons; to the untrained eye,
they look passably similar.
Valerie also submitted a general warranty deed dated 30 June
1998 that lists “HAZELENE W. BURRELL, unmarried” as the grantee.
A deed of trust from the same date lists the grantor as “HAZELENE
W. BURRELL. AN UNMARRIED WOMAN.” These documents suggest that
Hazelene held herself out to the public as an unmarried woman.
They also diminish Hazelene's credibility. Before submitting these
documents into evidence, Valerie's counsel asked Hazelene at least
five times, in various iterations, whether Hazelene had ever
presented herself as being not married to John Burrell. When faced
with the documents that clearly contradicted her previous answers,
Hazelene later explained that she had listed herself as unmarried
for a particular reason: John Burrell had bad credit and the bank
would not have given Hazelene the loan if she had included his name
on the application. Hazelene's response diminishes her credibilityfurther because it is apparent that this claim of being unmarried
was thought out in advance, and not a clerical error or oversight.
It is well-settled that in a bench trial, the trial judge “has the
duty to pass upon the credibility of the witnesses who testify. He
decides what weight shall be given to the testimony and the
reasonable inferences to be drawn therefrom.”
General Specialties
Co. v. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979).
Accordingly, we hold that the trial court did not err by
concluding that the Missouri divorce decree was valid. The trial
court's findings of fact are supported by competent evidence, and
those findings of fact in turn support the conclusions of law.
[2] Finally, Hazelene objects to finding of fact No. 15, which
states, “Both Respondents announced in open court that they
voluntarily dismissed their claims.” She avers that she did not
voluntarily dismiss any claims other than her counterclaims, in
contradiction with the trial court's finding and corresponding
order dismissing her remaining claims. She contends that she
dismissed only her claims against Wiseman Mortuary. The transcript
confirms that both Hazelene and Valerie dismissed only their claims
against Wiseman Mortuary. Therefore, we vacate that portion of the
trial court's order that addresses the dismissal of respondents'
claims.
Affirmed in part, vacated in part.
Judges MCGEE and STEPHENS concur.
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