Taylor v. Taylor

Judge Greene

dissenting.

I believe the trial judge erred in declaring plaintiff relieved of his obligation to support defendant. I disagree with the majority that the language of N.C. Gen. Stat. Sec. 31A-l(b)(6) creates a bar to defendant’s claim under the separation agreement.

I

Plaintiff asserts that N.C. Gen. Stat. Sec. 31A-1 requires the forfeiture of defendant’s contractual right to alimony because defendant entered into a bigamous marriage.

The relevant portions of Section 31A-1 are found in subsections (a)(5) and (b)(6). Read together, they provide that “[a] spouse who knowingly contracts a bigamous marriage” shall lose “[a]ny 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.” The majority determined the rights given by a separation agreement are 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.” I disagree.

I first note there is no case law addressing the meaning of subsection (b)(6). I also note Professor Lee found the section to be unclear. See generally 2 R. Lee, North Carolina Family Law Sec. 219, n. 20 (4th ed. 1980). Professor Lee also said: “It is doubtful that separation agreements, contemplating a separation or a divorce, are affected by N.C. Gen. Stat. Sec. 31A-l(b)(6).” Id.

This Court has held that property agreements are valid and may be entered into at any time either before, during or after marriage. Buffington v. Buffington, 69 N.C. App. 483, 488, 317 S.E. 2d 97, 100 (1984). Relying upon Buffington, the plaintiff contends that subsection (b)(6) now encompasses agreements settling property made during the marriage in contemplation of divorce. I, however, would not conclude that all property settlement agreements and/or separation agreements, are included in the language of N.C. Gen. Stat. Sec. 31A-1(b)(6).

In Buffington, this Court held that N.C. Gen. Stat. Sec. 50-20 had abolished the common law rule that property settlements entered into prior to the date of separation were void. 69 N.C. App. *397at 488, 317 S.E. 2d at 100. Plaintiffs argument does not aid in the interpretation of the statute at hand since the language upon which subsection (b)(6) turns is the phrase “solely in consideration of the marriage.” I construe that language to mean “solely in consideration of entering marriage.” It is clear the agreement here was entered into in contemplation of the separation or divorce, in other words, in contemplation of ending a marriage. Indeed, this Court has previously indicated that the right to support set out in a separation agreement does not arise out of the marriage, but arises out of contract. See Haynes v. Haynes, 45 N.C. App. 376, 381-82, 263 S.E. 2d 783, 786 (1980).

Additionally, if subsection (b)(6) includes separation agreements, as the majority holds, then separation agreements are unenforceable after the divorce, unless they are incorporated into the divorce decree. This is so because N.C. Gen. Stat. Sec. 31A-1 (a)(1) states that the spouse forfeits any rights enumerated in section (b) once the divorce is entered or the marriage is annulled. In North Carolina, separation agreements have been enforceable contracts after the divorce, even without incorporation into the divorce decree. Haynes at 381-82, 263 S.E. 2d at 786.

I would hold that Section 3lA-l(b)(6) does not include separation agreements. Therefore, the bigamous marriage entered into by defendant would not result in forfeiture of her rights under the agreement entered into by she and plaintiff.

II

Since I would hold that N.C. Gen. Stat. Sec. 31A-1 would not require forfeiture of the defendant’s rights, two additional issues are raised: (1) whether “remarriage,” as used in the separation agreement, includes a bigamous marriage, and (2) whether defendant is estopped from asserting that her remarriage is bigamous.

A

N.C. Gen. Stat. Sec. 51-3 states “[a]ll marriages . . . between persons either of whom has a husband or wife living at the time of such marriage . . . shall be void.” This is commonly known as bigamy.

A bigamous marriage is void ab initio in this state. Ivery v. Ivery, 258 N.C. 721, 727, 129 S.E. 2d 457, 460 (1963); Pridgen v. *398Pridgen, 203 N.C. 533, 537, 166 S.E. 591, 593 (1932). Since it is a nullity, it can be collaterally attacked at any time and no legal rights flow from it. Cunningham v. Brigman, 263 N.C. 208, 211, 139 S.E. 2d 353, 355 (1964). Therefore, I would hold that a bigamous marriage is a void marriage and cannot be considered a remarriage.

B

Our courts have held that equity can suspend the operation of N.C. Gen. Stat. Sec. 51-3. In an action for divorce, a party may be estopped from asserting that a current marriage is bigamous in order to avoid paying alimony. Mayer v. Mayer, 66 N.C. App. 522, 311 S.E. 2d 659, disc. rev. denied, 311 N.C. 760, 321 S.E. 2d 140 (1984); Redfern v. Redfern, 49 N.C. App. 94, 270 S.E. 2d 606 (1980); McIntyre v. McIntyre, 211 N.C. 698, 191 S.E. 507 (1937). “Under quasi-estoppel doctrine, one is not permitted to injure another by taking a position inconsistent with prior conduct, regardless of whether the person had actually relied upon that conduct.” Mayer at 532, 311 S.E. 2d at 666.

By entering into the marriage ceremony performed in South Carolina, defendant impliedly represented she was not then married to any other person. Such conduct is inconsistent with her present assertion that the South Carolina “marriage” is void. However, plaintiff has not been injured by defendant’s conduct: he simply has not been relieved of the obligations arising from his marriage to her. Neither plaintiff nor defendant have entered into any new obligations by virtue of defendant’s actions; the only obligation presented in the case is that created prior to the South Carolina marriage ceremony.

While it is true defendant might be estopped to assert the invalidity of the South Carolina marriage in an action by George Dwight Davis on the ground that it was bigamous, I find no inequity in allowing her to assert the voidness of her South Carolina marriage ceremony in this particular action. While some may find defendant’s conduct to be of questionable morality, courts are guided by principles of law and equity. Plaintiff would not be estopped from asserting the voidness of the South Carolina marriage.

*399III

In its judgment, the trial court directed defendant take nothing by her counterclaim. In light of my dissent, I would hold the trial court erred in denying the counterclaim and remand the action to the trial court for a new trial.

I vote to reverse and remand.