Opinion
No. 868DC623
Filed 17 February 1987
Husband and Wife 12 — bigamous marriage — compliance with separation agreement not required The trial court did not err in declaring that plaintiff was relieved of his obligation to support defendant and that defendant was not entitled to receive payments from plaintiff pursuant to the parties' deed of separation where defendant admitted that she participated in a bigamous marriage ceremony while the parties were still married to each other. N.C.G.S. 31A-1.
APPEAL by defendant from Jones (Arnold O.), Judge. Judgment entered 16 January 1986 in District Court, WAYNE County. Heard in the Court of Appeals 9 December 1986.
Cecil P. Merritt for plaintiff, appellee.
Hulse Hulse, by B. Geoffrey Hulse, for defendant, appellant.
Judge GREENE dissenting.
This is a civil action wherein plaintiff seeks to be relieved of an obligation to make certain payments to his wife, defendant, pursuant to a deed of separation entered into between them. Plaintiff also seeks custody of a minor child, and a "divorce from bed and board." Defendant filed an answer praying that plaintiff not receive the relief prayed for in the complaint and a counterclaim seeking specific performance of the deed of separation.
After a hearing, the trial judge made the following pertinent findings of fact:
3. Three (3) children were born of the marriage of the parties of whom only ELIZABETH RENEE TAYLOR, born June 17, 1968, is a minor child.
4. The parties executed a written separation agreement on October 5, 1984, which provides in pertinent part in Paragraph 2 thereof, "Husband shall pay to Wife for her support and for support of the children the sum of ONE THOUSAND DOLLARS ($1,000.00) per month for one year, the payments beginning on October 10, 1984 and ending on September 10, 1985; thereafter, Wife shall receive one-half of the retirement pay of the Husband (the retirement pay at this time is EIGHT HUNDRED TWENTY-SEVEN AND 77/100 ($827.77) per month) and shall receive one-half of said retirement pay as it may increase or decrease until her remarriage or death."
5. In Paragraph 7 of the separation agreement, the parties agreed, "except as expressly set forth herein, each party does hereby waive any and all rights — past, present, and future — which either party may have against the other for support, alimony, alimony pendente lite, any claim under the Equitable Distribution Act, and all other claims which the parties may have by reason of the marriage."
6. The Plaintiff paid to the Defendant the sum of ONE THOUSAND DOLLARS ($1,000.00) per month through and including the month of May, 1985, pursuant to the terms of the separation agreement.
7. On April 8, 1985, the Defendant applied for a license to marry George Dwight Davis at Dillon, South Carolina, at 5:25 p.m. She subsequently went with George Dwight Davis to Lumberton, North Carolina where they registered at Motel 6 and spent the night together and then returned to Dillon, South Carolina on April 9, 1985.
8. On April 9, 1985 at 5:25 p.m., the Defendant participated in a marriage ceremony with George Dwight Davis at Dillon, South Carolina and a License and Certificate for Marriage was duly issued to them by the State of South Carolina.
9. The Defendant, Margie V. Taylor, testified that she went through a marriage ceremony with George Dwight Davis for the purpose of trying to lure him back to North Carolina.
10. The Defendant, Margie V. Taylor, testified that she had not cohabited with George Dwight Davis in the State of North Carolina since entering into the marriage ceremony with him.
11. The Plaintiff, Martin L. Taylor, testified that he was married to Margie V. Taylor on April 9, 1985; Margie V. Taylor testified that she has not divorced Martin L. Taylor.
12. Thereafter, the Defendant lived from time to time with George Dwight Davis in the State of Florida and has received some support from George Dwight Davis since April 9, 1985.
13. The parties stipulated that the Plaintiff shall have the care, custody and control of the minor child, ELIZABETH RENEE TAYLOR and that the Defendant shall have the privilege of visiting with said child at reasonable times and intervals and so long as such visits do not interfere with the health, education and welfare of said child and the Court finds that such custody and visitation will be in the best interest of said child.
Based on these findings, the judge made the following conclusions of law:
1. The obligation of the Plaintiff to pay support for the Defendant as provided in Paragraph 2 of the separation agreement between the parties dated October 5, 1984 was terminated upon the marriage ceremony of the Defendant on April 9, 1985 at Dillon, South Carolina.
2. The Plaintiff has paid the Defendant all sums due for her support under the separation agreement and owes the Defendant nothing pursuant to Defendant's Counterclaim.
3. The custody of the minor child, ELIZABETH RENEE TAYLOR, should be awarded to the Plaintiff and the Defendant should have reasonable visitation with said child.
The trial court entered a judgment ordering that plaintiff have exclusive custody of the minor child, declaring that the marriage ceremony of defendant at Dillon, South Carolina on 9 April 1985 terminated plaintiff's obligation pursuant to the deed of separation to support defendant, and that defendant take nothing by her counterclaim and pay the costs of the action. Defendant appealed.
We note at the outset that the record does not indicate that the trial court entered a judgment with respect to plaintiff's prayer for "divorce from bed and board." We also point out that defendant took no exception to any of the findings of fact made by the trial court; nor does she contend in her brief that the findings of fact are not supported by the evidence. In her brief, defendant makes no contention regarding the order of custody. The minor child in question became eighteen years of age on 17 June 1986.
The only questions raised on appeal relate to the bigamous marriage ceremony entered into between defendant and George Dwight Davis in Dillon, South Carolina on 9 April 1985. Defendant, in fact, testified that she and George Dwight Davis participated in the marriage ceremony in Dillon on 9 April 1985. Defendant contends the trial court erred in allowing evidence regarding the bigamous marriage ceremony. Evidence regarding the bigamous marriage ceremony was and is relevant and material, and the trial court did not err in hearing such evidence and considering it in the judgment entered.
G.S. 31A-1, in pertinent part, provides:
(a The following persons shall lose the rights specified in subsection (b) of this section:
. . .
(5) A spouse who knowingly contracts a bigamous marriage.
(b) The rights lost as specified in subsection (a) of this section shall be as follows:
. . .
(6) Any rights or interests in the property of the other spouse which by a settlement before or after marriage were settled upon the offending spouse solely in consideration of the marriage.
We think the statute is clear, and is an absolute bar to defendant's claim to have plaintiff pay her one-half of his retirement pay pursuant to the deed of separation entered into on 5 October 1984. It can hardly be argued that defendant's right to claim one-half of her spouse's retirement benefits was not a property right settled upon her in the deed of separation entered into after the marriage solely in consideration of the marriage. Defendant, the offending spouse, would have no right to claim anything from plaintiff, her spouse, if she was not in fact married to him at the time he and she entered into the deed of separation which required her husband, plaintiff, to pay her, his spouse, $1,000 per month for one year and, thereafter, one-half of his retirement benefits. We hold, therefore, that the trial judge did not err in declaring that plaintiff was relieved of his obligation to support defendant and that defendant was not entitled to receive the payments from her spouse pursuant to the deed of separation and in dismissing her counterclaim. We are not prepared to ignore the plain language of G.S. 31A-1 with respect to the facts of this case.
The judgment appealed from is affirmed.
Affirmed.
Judge JOHNSON concurs.
Judge GREENE dissents.