Duncan v. Duncan

NO. COA12-399-2

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

BARBARA R. DUNCAN
Plaintiff,

v. Macon County
No. 05 CVD 338
JOHN H. DUNCAN,
Defendant.

Appeal by Defendant from the following orders and judgment

entered in the District Court, Macon County: order entered 15

October 2007 by Judge Monica Leslie; orders entered 31 March and

4 September 2008 by Judge Richard K. Walker; order entered 18

September 2009 and judgment entered 2 September 2010 by Judge

Steven J. Bryant; and orders entered 14 April 2011 and 18 January

2012 by Judge Richard K. Walker. Originally heard in the Court of

Appeals 11 September 2012, with opinion filed 2 October 2012.

Reconsidered pursuant to an opinion of the North Carolina Supreme

Court, entered 13 June 2013.

Siemens Family Law Group, by Jim Siemens, and Ruley Law
Offices, by Douglas A. Ruley, for Plaintiff.

Hyler & Lopez, PA, by Stephen P. Agan and George B. Hyler,
Jr., for Defendant.

DILLON, Judge.
 -2-
I. Factual & Procedural Background

Barbara R. Duncan (Plaintiff) and John H. Duncan (Defendant)

exchanged vows in two separate marriage ceremonies in North

Carolina occurring twelve years apart. The first ceremony occurred

on 15 October 1989 (the 1989 ceremony) and was presided over by

Hawk Littlejohn, who held himself out to be a Cherokee medicine

man1 and who was ordained as a minister by the Universal Life

Church. In 2001, the parties’ estate planning attorney expressed

his concern that the 1989 ceremony was not valid; and, accordingly,

on 14 October 2001, Plaintiff and Defendant participated in a

second ceremony at the First Presbyterian Church in Franklin, North

Carolina (the 2001 ceremony).

In 2005, Plaintiff commenced this action seeking, inter alia,

divorce, equitable distribution, alimony, and child support,

alleging that the parties’ date of marriage was 15 October 1989,

the date of the 1989 ceremony. Defendant filed responsive

pleadings alleging, inter alia, that Hawk Littlejohn was not

authorized under North Carolina law to perform a valid marriage

ceremony; and, therefore, the parties’ date of marriage was 14

October 2001, the date of the 2001 ceremony. Accordingly,

1 In Defendant’s verified complaint, he alleged that Hawk
Littlejohn was not, in fact, a Native American but had changed his
name from his given name, Larry Snyder.
 -3-
Defendant prayed the trial court to declare the 1989 ceremony

invalid under North Carolina law.

Following a hearing, the trial court entered an order on 15

October 2007 (the 2007 order), concluding that the 1989 ceremony

resulted in a valid marriage, that 15 October 1989 was “the date

of marriage for all matters related to this Chapter 50 action” and

that Defendant was estopped from contesting the validity of the

1989 ceremony.2

The trial court subsequently entered a number of additional

orders and an equitable distribution judgment. Defendant appeals

from the 2007 order and from a number of subsequently entered

orders that he contends were affected by the 2007 order. Defendant

also appeals from an order in which the trial court concluded that

Plaintiff was “actually substantially dependent on [] Defendant

for her support as of the date of separation” and a separate order

in which the trial court held open the issue of whether to award

attorney’s fees. Because the trial court left open the award of

attorney’s fees, this Court, relying on our Supreme Court’s

decision in Bumpers v. Cmty. Bank of N. Va., 364 N.C. 195, 695

2 In late 2007, Defendant appealed from the 2007 order. However,
this Court dismissed the interlocutory appeal for lack of
jurisdiction. Duncan v. Duncan, 193 N.C. App. 752, 761 S.E.2d 71,
2008 WL 4911807 (2008) (unpublished).
 -4-
S.E.2d 442 (2010), reasoned that Defendant’s appeal was

interlocutory and dismissed it as untimely. Duncan v. Duncan, ___

N.C. App. ___, ___, 732 S.E.2d 390, 392 (2012).

Following discretionary review, our Supreme Court reversed,

holding that an open request for attorney’s fees does not prevent

a judgment on the merits from being final. Duncan v. Duncan, 366

N.C. 514, 742 S.E.2d 799 (2013). On remand from our Supreme Court,

we now consider the merits of Defendant’s appeal.

II. Analysis

Defendant’s arguments on appeal are essentially that (1) the

trial court erred in its 2007 order by determining that 15 October

1989 was the date of marriage for all matters related to this

action; and (2) the trial court erred in its order in which it

determined that Plaintiff was actually substantially dependent on

Defendant for her support as of the date of separation. For the

reasons stated below, we affirm the orders of the trial court.

A. Date of Marriage

Defendant argues that the 1989 ceremony was invalid; and,

therefore, that the trial court erred in establishing the date of

marriage based on the 1989 ceremony. As an initial matter, we

hold that the issue regarding the validity of the 1989 ceremony

was properly before the trial court. A marriage based on a
 -5-
ceremony in North Carolina not properly solemnized pursuant to the

requirements of N.C. Gen. Stat. § 51-1 is voidable. See Fulton

v. Vickery, 73 N.C. App. 382, 387, 326 S.E.2d 354, 358 (1985)

(stating that a marriage performed by a minister of the Universal

Life Church, not otherwise cured by N.C. Gen. Stat. § 51-1.1, was

voidable). A party may apply to the court for a declaration that

a voidable marriage “be declared void from the beginning[.]” N.C.

Gen. Stat. § 50-4 (2013). However, a voidable marriage remains

valid “for all civil purposes, until annulled by a competent

tribunal in a direct proceeding.” Geitner v. Townsend, 67 N.C.

App. 159, 161, 312 S.E.2d 236, 238 (1984) (emphasis added).

Here, in his counterclaim, Defendant prays the court for an

order “to declare [the 1989 ceremony] invalid[,]” which we believe

is an application under N.C. Gen. Stat. § 50-4 for an order to

“declare [a voidable] marriage void[,]” to the extent that the

parties’ marriage is based on the 1989 ceremony. In other words,

we believe that N.C. Gen. Stat. § 50-4 applies in this case even

though Defendant does not seek to annul his marriage in toto -

indeed, he admits that he and Plaintiff were lawfully married by

virtue of their 2001 ceremony - but merely requests that the court

declare the marriage invalid insomuch as it is based on the 1989

ceremony. Further, where one party sues for divorce, we believe
 -6-
that a counterclaim by the opposing party seeking an order to

declare the marriage invalid constitutes a “direct proceeding.”

See Sprinkle v. N.C. Wildlife, 165 N.C. App. 721, 735, 600 S.E.2d

473, 482 (2004) (holding that “a counterclaim is in the nature of

an independent proceeding[, and] the filing of a counterclaim is

to initiate a ‘civil action’”).

In this case, Defendant argues that the trial court erred by

concluding that the 1989 ceremony was properly solemnized and by

concluding that he “was judicially and equitably estopped from

arguing” otherwise. For the reasons below, we believe that the

trial court erred by concluding that the 1989 ceremony was properly

solemnized and that Defendant was judicially estopped from

contesting the validity of the 1989 ceremony; however, we do not

believe that the trial court erred by concluding that Defendant

was equitably estopped from contesting the validity of the 1989

ceremony. Therefore, we affirm the 2007 order to the extent that

it concludes that Defendant is equitably estopped from challenging

the validity of the 1989 ceremony and the date of marriage, for

purposes of this action, to be 15 October 1989.

1. The 1989 Ceremony Was Voidable

Regarding the validity of the 1989 ceremony, Defendant does

not argue that the ceremony did not take place. Rather, he
 -7-
contends that Hawk Littlejohn, who officiated the ceremony, was

not authorized under the North Carolina law in effect at that time

to solemnize a marriage.

Our Supreme Court has held that “[a] common law marriage or

marriage by consent is not recognized by this State.” State v.

Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980). Rather,

“[t]o constitute a valid marriage in this State, the requirements

of G.S. 51-1 must be met.” Id. at 486, 272 S.E.2d at 353. The

version of N.C. Gen. Stat. § 51-1 in effect in 1989 required, in

pertinent part, that the parties “‘express their solemn intent to

marry in the presence of (1) an ordained minister of any religious

denomination; or (2) a minister authorized by his church; or (3)

a magistrate.’” Pickard v. Pickard, 176 N.C. App. 193, 196, 625

S.E.2d 869, 872 (2006) (quoting Lynch, 301 N.C. at 487, 272 S.E.2d

at 354).3 However, when it is established that a marriage ceremony

has occurred – as is the case here – “the burden of showing that

it was an invalid marriage rests on the party asserting its

invalidity.” Overton v. Overton, 260 N.C. 139, 143, 132 S.E.2d

349, 352 (1963); see also Kearney v. Thomas, 225 N.C. 156, 163, 33

3 N.C. Gen. Stat. § 51-1 was amended in 2001 to add a provision
which authorizes a ceremony to be valid as long as it is held “[i]n
accordance with any mode of solemnization recognized by any
religious denomination, or federally or State recognized Indian
Nation or Tribe.” N.C. Gen. Stat. § 51-1(2) (2013).
 -8-
S.E.2d 871, 876 (1945) (stating that where there is “proof that a

marriage ceremony took place, it will be presumed that it was

legally performed and resulted in a valid marriage”). Accordingly,

Defendant bore the burden of demonstrating that Hawk Littlejohn

was not authorized under N.C. Gen. Stat. § 51-1 to solemnize the

1989 marriage ceremony. Based on the evidence that was before the

trial court, we believe that Defendant met this high burden.

The record on appeal contains a statement of the evidence

that was presented to the trial court, pursuant to Rule 9(c) of

our Appellate Rules.4 With regard to the evidence presented before

the trial court concerning Hawk Littlejohn’s authority to

solemnize the 1989 ceremony, the Rule 9(c) statement sets forth

that the parties made the court aware of the Supreme Court’s 1980

opinion in Lynch, supra; and, further, that the parties stipulated

that Hawk Littlejohn had performed the 1989 ceremony, that he was

a minister ordained by the Universal Life Church, and that the

relevant facts regarding the Universal Life Church as it applies

in this case were essentially the same as described by the Supreme

Court in Lynch.

4 The record states that the audio recording of the hearing has
been lost.
 -9-
In Lynch, our Supreme Court reversed a bigamy conviction of

a defendant where one of his two marriages was solemnized before

a Universal Life Church minister. Lynch, supra. The Court

described the Universal Life Church as a church, headquartered in

Modesto, California, with “no traditional doctrine” who “will

ordain anyone, without question to his/her faith,” and that their

ministers, which number over 7 million, have the authority to

officiate at marriages but otherwise are “not require[d] to give

up [their] membership with any other church to be a minister of

the ULC, Inc.” Id. at 483, 272 S.E.2d at 351. The Court further

described that the process of receiving certification as an

ordained minister in the Universal Life Church involved simply

mailing one’s name, address and ten dollars to the Church’s

California headquarters, and that the Church did not require any

further proceedings or training as a requirement for ordination.

Id. In reversing the bigamy conviction, the Court stated as

follows:

A ceremony solemnized by a [layman] who bought
for $10.00 a mail order certificate giving him
‘credentials of minister’ in the Universal
Life Church, Inc. – whatever that is – is not
a ceremony of marriage to be recognized for
purposes of a bigamy prosecution in the State
of North Carolina. The evidence does not
establish – rather, it negates the fact – that
[the “minister”] was authorized under the laws
of this State to perform a marriage ceremony.
 -10-

Id. at 488, 272 S.E.2d at 355 (emphasis added).

Since the record shows that Plaintiff stipulated that the

“relevant facts” concerning the Universal Life Church and Hawk

Littlejohn’s ordination as a minister therein were essentially the

same as described by our Supreme Court in Lynch, and since our

Supreme Court in Lynch stated that evidence that an individual was

ordained by the Universal Life Church – as the Church is described

in that case - “negates the fact that [the individual] was

authorized under the laws of this State to perform a marriage

ceremony,” we are compelled in the present case to conclude that

Defendant met his high burden of demonstrating that Hawk Littlejohn

was not authorized under the applicable version of N.C. Gen. Stat.

§ 51-1 to solemnize the 1989 ceremony.

We do not agree with the trial court’s conclusion that N.C.

Gen. Stat. § 51-1.1 passed by our Legislature in 1981, the year

after Lynch was decided, renders the 1989 ceremony valid.

Specifically, the trial court correctly found that “the

Legislature passed N.C. Gen. Stat. Sec. 51-1.1 in 1981, prior to

the parties [sic] marriage, which expressly validated all

marriages performed by ministers of the Universal Life Church prior

to July 3, 1981[,]” but then erroneously concluded that “the effect

of [N.C. Gen. Stat. § 51-1.1] is to give legislative approval to
 -11-
marriages performed by ministers of the Universal Life Church[.]”

In other words, we believe the trial court erred by concluding

that our Legislature intended to give its approval to marriage

ceremonies performed by ministers of the Universal Life Church,

even if they were performed after 3 July 1981, because we believe

the express terms of the statute validated only those otherwise

voidable marriages solemnized by a minister of the Universal Life

Church before 3 July 1981. See Meza v. Div. of Soc. Servs., 364

N.C. 61, 66, 692 S.E.2d 96, 100 (2010) (stating that “[w]hen the

language of a statute is clear and without ambiguity, it is the

duty of this Court to give effect to the plain meaning of the

statute, and judicial construction of legislative intent is not

required”).

Indeed, in Fulton v. Vickery, this Court described N.C. Gen.

Stat. § 51-1.1 as a “curative statute.” 73 N.C. App. at 385, 326

S.E.2d at 357. In other words, by limiting the scope of the

statute only to those marriages performed prior to 3 July 1981,

the Legislature intended to provide relief to any “innocent” couple

whose marital status was suddenly put in doubt by the Lynch

decision. However, had the Legislature intended to validate

otherwise voidable marriages solemnized by the Universal Life
 -12-
Church for all time, it could have easily done so.5

In this case, since the trial court found that the parties

were married by Hawk Littlejohn on a date after 3 July 1981, the

curative effect of N.C. Gen. Stat. § 51-1.1 would not apply.

Accordingly, the parties’ marriage – as based on the 1989 ceremony

– was voidable, and subject to attack in a direct proceeding

pursuant to N.C. Gen. Stat. § 50-4.

2. Judicial Estoppel

Defendant argues that the trial court erred by concluding

that, even if the 1989 ceremony was voidable, Defendant was

judicially estopped from contesting its validity. We agree.

Our Supreme Court has stated that three factors are to be

considered in applying the doctrine of judicial estoppel: (1)

whether a party’s position in a legal proceeding is clearly

inconsistent with an earlier position taken in a legal proceeding;

(2) whether the party succeeded in persuading a court to accept

the party’s earlier position; and (3) whether the party seeking to

assert the inconsistent position would derive some unfair

5 There is no evidence in the record regarding the current criteria
for ordination in the Universal Life Church; and, accordingly, we
express no opinion about marriages that might have been solemnized
by other Universal Life Church ministers since Lynch. Further, we
express no opinion regarding the voidability of marriages
solemnized by a Universal Life Church minister under the current
version of N.C. Gen. Stat. § 51-1.
 -13-
advantage or impose an unfair detriment on the opposing party.

Whitacre v. BioSignia, Inc., 358 N.C. 1, 29, 591 S.E.2d 870, 888-

89 (2004).

In this case, the trial court’s order does not contain any

finding that Defendant took the position in this or any other

judicial proceeding that the 1989 ceremony was valid. Rather, the

record reflects that Defendant denied in his initial pleading in

this action Plaintiff’s allegation that they were married in 1989.

Accordingly, we hold that the trial court erred by concluding that

Defendant was judicially estopped from contesting the validity of

the 1989 ceremony.

3. Equitable Estoppel

Defendant argues that the trial court erred by concluding

that he is equitably estopped from challenging the validity of the

1989 ceremony. Specifically, he argues that Plaintiff is barred

from asserting equitable estoppel because she has “unclean hands”

by having participated in the 1989 ceremony. Plaintiff, on the

other hand, argues that estoppel6 does apply in this case. In

6The trial court concluded that Defendant was “equitably estopped”
from challenging the validity of the 1989 ceremony. In the cases
cited by the parties, the reviewing courts employ both the
doctrines of “equitable estoppel” and “quasi-estoppel.” Our
Supreme Court has described “quasi-estoppel” as a “branch of
equitable estoppel” with the key distinction being that the former
“may operate without detrimental reliance on the part of the party
 -14-
support of their respective positions, each party has cited

opinions from this Court and our Supreme Court which address the

propriety of estopping a party from challenging the validity of a

void or voidable marriage. We have carefully reviewed these cases

and believe that the trial court correctly concluded that Defendant

was equitably estopped from challenging the validity of the 1989

ceremony.

Whether principles of estoppel apply “turn[s] on the

particular facts of each case.” Mayer, 66 N.C. App. at 535, 311

S.E.2d at 668. The application of estoppel in divorce actions in

North Carolina can be illustrated in three cases decided by this

Court, Hurston v. Hurston, 179 N.C. App. 809, 635 S.E.2d 451

(2006); Redfern v. Redfern, 49 N.C. App. 94, 270 S.E.2d 606 (1980);

and Mayer, supra, each of which involved (1) a wife seeking post-

marriage support from her husband; (2) the husband seeking to avoid

such obligation by asserting that the marriage was void based on

the fact that either he or his putative wife had failed to obtain

a valid divorce from a prior marriage; and (3) the wife contending

invoking the estoppel.” Whitacre, 358 N.C. at 18, 591 S.E.2d at
882. We believe that the distinction is insignificant in the
present case and believe that the cases considering either doctrine
are helpful in our resolution of this issue. See Mayer v. Mayer,
66 N.C. App. 522, 532-36, 311 S.E.2d 659, 666-69 (1984) (relying
on analyses in cases applying “equitable estoppel” though applying
“quasi-estoppel” principles).
 -15-
that her putative husband was estopped from contesting the validity

of their marriage. We compare each of these decisions below.

Hurston, a case relied upon by Defendant, involved facts at

one extreme of the spectrum. There, it was the wife who had been

previously married and who had obtained an invalid Dominican

Republic divorce. Therefore, we held in Hurston that the wife

could not assert estoppel because she had “unclean hands,”

reasoning that though her putative husband “might have been

negligent” by not ever questioning during the marriage the validity

of the wife’s first divorce, “it was the [wife] who did not obtain

the valid divorce decree before attempting to enter into another

marriage[,]” describing her as being “culpably negligent.”

Hurston, 179 N.C. App. at 815, 635 S.E.2d at 454. Accordingly, we

held that the husband was not equitably estopped from contesting

the validity of the marriage.

Redfern involved facts on the other extreme of the spectrum.

Specifically, in Redfern, it was the husband – and not the wife -

who had been previously married and had entered the second marriage

before, unbeknownst to his putative wife, the divorce decree from

his first marriage had been signed. This Court determined that

the husband was culpably negligent in failing to obtain a signed

divorce decree; and, therefore, he was estopped from contesting
 -16-
the validity of the second marriage as his defense to avoid paying

support to his putative wife. Redfern, 49 N.C. App. at 97, 270

S.E.2d 608-09.

The facts in Mayer fall between the extremes of Hurston and

Redfern. Like the wife in Hurston, the wife in Mayer had obtained

an invalid Dominican Republic divorce in an attempt to end her

first marriage. However, unlike the putative second husband in

Hurston, the putative second husband in Mayer was involved in

helping his wife obtain the invalid Dominican divorce from her

first husband. Specifically, the putative second husband had

insisted that his wife obtain the Dominican divorce and had

accompanied her there to help her obtain the divorce. The putative

second husband, nonetheless, argued that his wife should not be

able to assert estoppel since “the equities in this case weigh no

more heavily for [the wife] than for him since [inter alia] she

and he are in pari delicto [in that she participated equally with

him to obtain the Dominican divorce].” Mayer, 66 N.C. App. at

531, 311 S.E.2d at 666. This Court concluded that even though no

children had been born to the marriage and though the parties had

not been married for that long, the scales of equity still tipped

towards allowing the wife to assert estoppel to bar her putative

second husband’s defense to her claim for spousal support. Id. at
 -17-
66 N.C. App. at 535, 311 S.E.2d at 668. Specifically, this Court

stated that to allow a party to a marriage to challenge the

validity of that marriage where he was actively involved in

obtaining an invalid divorce for his putative spouse and which was

relied upon by his putative spouse would cause “matrimonial

uncertainty.” Id. We note that in Taylor v. Taylor, our Supreme

Court cited our analysis in Mayer with approval, quoting our

reasoning that “‘in spite of the criticism that the application of

a quasi-estoppel doctrine circumvents a state’s divorce law, it

would be even more inimical to our law and to our public policy to

permit [the husband] to avoid his marital obligations by acting

inconsistently with his prior conduct.” 321 N.C. 244, 250-51, 362

S.E.2d 542, 546-47 (1987) (citation omitted) (alteration in

original).

We believe that the facts in the present case – as found by

the trial court in the 2007 order - are most similar to the facts

in Mayer. Specifically, the findings suggest that both Plaintiff

and Defendant were equally negligent in relying on Hawk

Littlejohn’s credentials. Accordingly, we believe that the trial

court correctly applied the law in concluding that Defendant was

equitably estopped from challenging the validity of the 1989

ceremony.
 -18-
The scales of equity might have tipped towards Defendant had

the evidence shown that Plaintiff had actually known at the time

of the 1989 ceremony that Hawk Littlejohn was not authorized to

solemnize a North Carolina marriage or that she had misrepresented

to Defendant prior to the 1989 ceremony that she had engaged in

some due diligence to determine the validity of Hawk Littlejohn’s

credentials where she, in fact, had not done so. Further, had

Plaintiff not agreed to participate in the 2001 ceremony, the

scales of equity would have swayed against her, at least with

respect to any benefit she seeks in this action that relates to

the period of the marriage occurring after she had learned in 2001

that her marriage was voidable. However, there is no evidence in

the record indicating that Plaintiff was any more culpable than

the wife in Mayer. We note that Defendant has pled allegations

that might enhance Plaintiff’s culpability, including allegations

about her expertise in Native American culture and her desire and

insistence that she and Defendant participate in the traditional

Cherokee ceremony officiated by Hawk Littlejohn. However, there

is nothing in the Rule 9(c) statement indicating that any testimony

or other evidence was presented to the trial court regarding these

allegations. Rather, the Rule 9(c) statement simply recites that

the parties both testified and that the testimonial evidence
 -19-
supported many of the trial court’s findings in the 2007 order.

Accordingly, we affirm the trial court’s determination that

the date of marriage for purposes of this action is 15 October

1989. Further, because we hold that the trial court did not err

in concluding that 15 October 1989 was the date of marriage for

all matters related to this action, we necessarily hold that the

trial court did not err in basing all subsequent orders on that

date of marriage.

III. Dependent Spouse Determination

In his final argument, Defendant contends that, in its 31

March 2008 order, the trial court erred in making its conclusion

of law 2, which states as follows:

Taking into account the income and expenses of
the parties living as [a] family unit for the
several months prior [to] the separation of
the parties, . . . Plaintiff is without
sufficient means to maintain her accustomed
standard of living and . . . Plaintiff is,
therefore, a dependent spouse in that she is
actually substantially dependent
on . . . Defendant for her support as of the
date of separation. Further, given
that . . . Plaintiff’s income is not
sufficient to meet her monthly
expenses, . . . Plaintiff is substantially in
need of maintenance and support.

Defendant, however, makes no argument in his brief that any

specific findings in the order are not supported by competent

evidence. Defendant only nonspecifically argues that “the trial
 -20-
court erred in its legal conclusion #2 that . . . [P]laintiff is

‘actually substantially dependent on . . . Defendant for her

support as of the date of separation,’ . . . as that conclusion

was based on a finding that is not supported by the evidence.”

“Findings of fact to which no error is assigned ‘are presumed to

be supported by competent evidence and are binding on appeal.’”

Pascoe v. Pascoe, 183 N.C. App. 648, 650, 645 S.E.2d 156, 157

(2007) (citation omitted). This Court has held that when an

appellant, as here, fails to argue specifically in his brief that

contested findings of fact were unsupported by the evidence, any

such argument is abandoned. Peters v. Pennington, 210 N.C. App.

1, 16, 707 S.E.2d 724, 735 (2011) (citation omitted). Since

Defendant made no argument as to which, if any, of the findings of

fact in the trial court’s 31 March 2008 order were unsupported,

“this Court is therefore bound to accept as true the information

therein.” Pascoe, 183 N.C. App. at 651, 645 S.E.2d at 158

(citation omitted). We have nevertheless reviewed the relevant

findings of fact and conclude that they are supported by competent

record evidence and are binding on appeal. Therefore, we hold

that the trial court did not err in finding Plaintiff to be

actually substantially dependent on Defendant, and Defendant’s

argument to the contrary is without merit.
 -21-
AFFIRMED.

Judge DAVIS concurs.

Judge McGEE concurs in result with separate opinion.
 -22-
NO. COA12-399-2

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

BARBARA R. DUNCAN
Plaintiff-Appellee,

v. Macon County
No. 05 CVD 338
JOHN H. DUNCAN,
Defendant-Appellant.

McGEE, Judge, concurring in result with separate opinion.

I concur in Section II A. 3., Equitable Estoppel, and in

Section III, Dependent Spouse Determination, of the majority’s

opinion. I agree that the trial court did not err in ruling that

Defendant was equitably estopped from denying 15 October 1989 as

the date of marriage. I write separately because I believe the

remainder of Section II of the majority opinion is dicta, which

unnecessarily, and perhaps erroneously, addresses issues better

left to future panels of this Court, should these issues again

arise.

I.

Though I do not believe we need to, or should, address any

issues beyond equitable estoppel in Section II, I am concerned

with the statement of the majority that “Defendant met his high
 -23-
burden [of] show[ing] that Hawk Littlejohn was not authorized under

the applicable version of N.C. Gen. Stat. § 51-1 to solemnize the

1989 ceremony.” I am not at all certain Defendant met his burden

in this regard, and would much prefer we not address this issue in

dicta.

Initially, pursuant to N.C. Gen. Stat. § 51-1, a marriage

ceremony results in a valid marriage if, inter alia, it is

conducted “[i]n the presence of a minister authorized by a

church[.]” N.C. Gen. Stat. § 51-1 (2013). Though I tend to agree

with the majority opinion that Hawk Littlejohn’s association with

the Universal Life Church does not satisfy the requirements of

N.C.G.S. § 51-1 in light of precedent of this Court and our Supreme

Court, the majority fails to consider Hawk Littlejohn’s

uncontested status as a Cherokee Medicine Man.

The trial court made the following relevant findings of fact

in its 15 October 2007 order:

10. That, on . . . October 15th, 1989, . . .
Plaintiff and Defendant participated in a
marriage ceremony performed by Hawk
Littlejohn, a Cherokee Medicine Man;

. . . .

12. That the ceremony was attended by friends
and family, had several sweat lodges, there
was an exchange of corn and blankets, bagpipes
were played and the exchanging of gold wedding
bands took place. Further, . . . Defendant
 -24-
wore a kilt for the ceremony;

. . . .

27. That the parties in this case expressed
their solemn intent to marry at a traditional
Cherokee ceremony attended by family and
friends[.]

. . . .

29. That . . . Defendant failed to produce any
evidence or offer controlling law that Hawk
Littlejohn was not . . . "authorized by his
church" to perform weddings in accordance with
the traditions of the Cherokee Indian Nation
or in accordance with N.C. Gen. Stat. Sec. 51-
1.

Defendant does not challenge the portion of finding of fact

twenty-nine that states: “Defendant failed to produce any evidence

or offer controlling law that Hawk Littlejohn was not

. . . ‘authorized by his church’ to perform weddings in accordance

with the traditions of the Cherokee Indian Nation or in accordance

with N.C. Gen. Stat. Sec. 51-1.” Because Defendant does not

challenge this portion of finding of fact twenty-nine, it is

binding on appeal. Bethea v. Bethea, 43 N.C. App. 372, 374, 258

S.E.2d 796, 798 (1979). Further, Defendant does not argue on

appeal that Hawk Littlejohn, as a Cherokee Medicine Man, was not

authorized to perform weddings. Having failed to challenge this

finding, or the conclusions based upon it, Defendant has abandoned

any such challenge. N.C.R. App. P. 28(b)(6) (“Assignments of error
 -25-
not set out in the appellant's brief, or in support of which no

reason or argument is stated or authority cited, will be taken as

abandoned.”); Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp.

Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008).

Because Defendant has failed to challenge the validity of the

1989 marriage based on one of the grounds found by the trial court

in support of its ruling, Defendant has abandoned that challenge.

I therefore disagree with the majority opinion’s statement that

“Defendant met his high burden [of] show[ing] that Hawk Littlejohn

was not authorized under the applicable version of N.C. Gen. Stat.

§ 51-1 to solemnize the 1989 ceremony” on this ground as well.

I would also note that the issue of whether Hawk Littlejohn,

or another Native American religious figure, could validly perform

marriages pursuant to N.C.G.S. § 51-1 before it’s amendment on 1

October 2001 has never been answered by our appellate courts. In

dissenting from the majority opinion in Pickard, supra, that a

marriage performed by Hawk Littlejohn in 1991 was valid through

the application of judicial estoppel, the dissenting judge made

the argument that the marriage was valid as performed, due in part

to Hawk Littlejohn’s status as a Cherokee Medicine Man. Pickard,

176 N.C. App. at 203-04, 625 S.E.2d at 876. Though the dissent in

Pickard does not constitute controlling law, the argument included
 -26-
therein has never been directly addressed in North Carolina, and

the majority does not address it here, though the trial court in

this matter ruled the 1989 marriage valid, in part, for similar

reasons.

II.

Finally, though not an issue argued on this appeal, I disagree

with the definitive statement of the majority declaring the 1989

ceremony invalid, and thus the resulting marriage “voidable,”

because I recognize a possibility, as of yet undecided by any

appellate court of this state, that the 1989 ceremony resulted in

a valid marriage by action of statute.

Our General Assembly, on 10 May 2001, approved legislation to

amend N.C.G.S. § 51-1 and other statutes (“the Act”). The Act was

titled, in part: “MARRIAGE—LICENSING—SOLEMNIZATION[:] AN ACT TO

AMEND THE MARRIAGE STATUTES TO BROADEN THE LIST OF PERSONS

AUTHORIZED TO SOLEMNIZE MARRIAGES; TO VALIDATE A MARRIAGE LICENSED

AND SOLEMNIZED BY A FEDERALLY RECOGNIZED INDIAN TRIBE OR NATION[.]”

2001 North Carolina Laws S.L. 2001-62 (H.B. 142) (emphasis added).

By Section 1 of H.B. 142, N.C.G.S. § 51-1 was amended in part to

read:

A valid and sufficient marriage is created by
the consent of a male and female person who
may lawfully marry, presently to take each
other as husband and wife, freely, seriously
 -27-
and plainly expressed by each in the presence
of the other, either:

(1) a. In the presence of an ordained
minister of any religious denomination,
a minister authorized by a church, or a
magistrate; and

b. With the consequent declaration by the
minister or magistrate that the persons
are husband and wife; or

(2) In accordance with any mode of
solemnization recognized by any
religious denomination, or federally or
State recognized Indian Nation or Tribe.

N.C.G.S. § 51-1 (emphasis added).

The relevant enacting language of H.B. 142 is as follows:

“[Section 1] of this act becomes effective October 1, 2001.” 2001

North Carolina Laws S.L. 2001-62 (H.B. 142), Section 18. Because

the Act was enacted in part to validate marriages performed in

accordance with recognized Native American nations or tribes, and

because there is no temporal restriction in the enacting language7,

I would not declare the 1989 marriage in this matter invalid and

voidable, and would not imply that other marriage ceremonies

performed in a similar manner before 1 October 2001, are invalid

and therefore voidable.

7 For example, the General Assembly could have used language
similar to “The remainder of this act applies to marriage
ceremonies performed on or after October 1, 2001,” but did not.
 -28-
I therefore limit my concurrence in Section II to the

following: Assuming, arguendo, the 1989 marriage ceremony was

invalid, and the resulting marriage was voidable, Defendant is

equitably estopped from denying the validity of that marriage.