IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-85
Filed: 15 November 2016
Martin County, No. 00 CVD 177
FLORENCE BAILEY HINTON, Plaintiff,
v.
WILLIE GEORGE HINTON II, Defendant.
Appeal by movants from order entered 17 November 2015 by Judge Darrell B.
Cayton, Jr. in Martin County District Court. Heard in the Court of Appeals 8 June
2016.
The Jones Law Group, PLLC, by Jacinta D. Jones and Maria E. Bruner, for
plaintiff-appellee.
Trimpi & Nash LLP, by John G. Trimpi, for movants-appellants.
DAVIS, Judge.
This appeal arises from a divorce judgment that incorrectly listed the name of
the couple’s son instead of the name of the husband. Because of this error, the divorce
judgment was set aside fifteen years later. Bryon A. Long, Nyesha H. Riddick, and
Darvin A. Felton (collectively “Movants”) — who are all children of the husband —
subsequently sought to intervene in the proceedings and have the order setting aside
the divorce judgment vacated. Movants appeal from the trial court’s 17 November
HINTON V. HINTON
Opinion of the Court
2015 order denying their motion to intervene. After careful review, we vacate the
order in part and remand for further proceedings.
Factual Background
Florence Bailey Hinton (“Mrs. Hinton”) and Willie George Hinton, Sr. (“Mr.
Hinton”) were married in August 1974, and two children were born of the marriage:
Raronzee J. Hinton and Willie George Hinton, II (“Willie”). The couple separated in
August 1998, and Mrs. Hinton filed a complaint for divorce in Martin County District
Court on 12 April 2000. In the caption of the complaint and on the accompanying
summons, the name of the defendant was incorrectly listed as “Willie George Hinton,
II.” In the body of the complaint, Mrs. Hinton alleged that “Plaintiff and Defendant
were married” and requested “that the bonds of matrimony heretofore existing
between the parties be dissolved and the Plaintiff be granted an absolute divorce from
the Defendant.”
On 18 April 2000, Mr. Hinton received a copy of the summons and complaint,
and on 25 April 2000, he filed an answer to the complaint. In the caption to his
answer, Mr. Hinton listed his correct name: “Willie George Hinton, Sr.” His answer
admitted all of the allegations contained in Mrs. Hinton’s complaint. The court issued
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Opinion of the Court
a divorce judgment (the “Divorce Judgment”) on 12 May 2000 that contained the
incorrect name “Winton George Hinton, II”1 as the defendant.
Mr. Hinton died intestate on 17 May 2015 after spending three weeks in the
hospital. Although he never remarried, Mr. Hinton fathered three children outside
of his marriage to Mrs. Hinton — Bryon A. Long, Nyesha H. Riddick, and Darvin A.
Felton, who are the movants in this action. On 6 May 2015, prior to Mr. Hinton’s
death but after he entered the hospital, Mrs. Hinton filed a motion (1) to set aside the
Divorce Judgment pursuant to Rule 60(b)(4) of the North Carolina Rules of Civil
Procedure, asserting that it was void on its face due to impossibility in that it
purported to have granted her a divorce from her son rather than from her husband;
and (2) in the alternative, to correct the defendant’s name on the Divorce Judgment
pursuant to Rule 60(b)(1). On 29 May 2015, after Mr. Hinton’s death, Mrs. Hinton
amended her motion to delete the request to correct the error, leaving only the motion
to set aside the Divorce Judgment.
On 4 June 2015, a hearing was held before the Honorable Darrell B. Cayton,
Jr. to determine whether the Divorce Judgment should be set aside. On 9 June 2015,
the trial court entered an order, stating as follows:
1. The parties had proper notice of this hearing and are
properly before this Court.
1 While it is not clear from the record why the name “Winton” — rather than “Willie” —
appeared on the Divorce Judgment, the listing of the defendant’s first name as “Winton” does not form
the basis for any of the issues presented in this appeal.
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HINTON V. HINTON
Opinion of the Court
2. [Mrs. Hinton] through her former counsel intended to
file an absolute divorce action from her husband, Willie
George Hinton, Sr., however a Civil Summons and
Complaint for Absolute Divorce was ultimately filed and
served upon Defendant Willie George Hinton II. This Court
entered a divorce judgment based upon one year’s
separation from Willie George Hinton II on May 12, 2000.
2. [sic] [Mrs. Hinton’s] lawful husband, Willie George
Hinton, Sr., filed an answer in this action. Willie George
Hinton, Sr., was not at the time of filing and has never been
made a proper party to this action.
3. Defendant Willie George Hinton II was not married to
[Mrs. Hinton] but rather is the (now adult) child of [Mrs.
Hinton] and Willie George Hinton, Sr., born of the
marriage between [Mrs. Hinton] and Willie George Hinton,
Sr.
4. Neither [Mrs. Hinton] nor Willie George Hinton, Sr.,
who died after the filing of this Motion but prior to its
hearing, remarried following the entry of the prior divorce
judgment.
5. The prior judgment entered on May 12, 2000, obtains
an absolute divorce judgment from Willie George Hinton
II, a person to whom [Mrs. Hinton] was never married.
Accordingly, the prior absolute divorce judgment of this
Court is void due to impossibility.
Based on these findings, the trial court granted Mrs. Hinton’s motion and set aside
the Divorce Judgment.
On 15 June 2015, Movants filed a motion to intervene, a motion to substitute
parties or to abate or continue, a motion to alter or amend judgment, and a motion
for a new trial. In support of these motions, Movants filed affidavits in which they
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HINTON V. HINTON
Opinion of the Court
asserted, inter alia, that (1) they had initially learned at their father’s wake that Mrs.
Hinton was seeking to correct the defendant’s name on the Divorce Judgment; (2)
they later discovered that Mrs. Hinton was instead trying to set aside the Divorce
Judgment; and (3) upon realizing her true intentions, Movants retained counsel to
prevent Mrs. Hinton from obtaining this relief.
In their motion to intervene, Movants stated, in pertinent part, as follows:
4. The aforesaid children of Willie G. Hinton have an
interest as tenants in common in the real property owned
by their father at his death and have a claim as heirs to his
assets after the payment of claims of the estate and
creditors. Plaintiff’s claim would undermine their
ownership interests in the event that she had the right to
claim a spouse's allowance or an intestate share or qualify
as administratrix.
On 28 August 2015, a hearing on Movants’ motions was held before Judge
Cayton. On 17 November 2015, the court entered an order containing the following
findings of fact:
1. The parties and movants had proper notice of this
hearing and are properly before this Court.
2. In this action . . . [Mrs. Hinton] through her former
counsel intended to file an absolute divorce action from her
husband, Willie George Hinton, Sr., however a Civil
Summons was issued in the name of Defendant Willie
George Hinton II and a Complaint for Absolute Divorce
was filed and validly served upon Defendant Willie George
Hinton II.
3. The summons and complaint were served upon
Defendant Willie George Hinton II, the only defendant in
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HINTON V. HINTON
Opinion of the Court
this action. Service of process was accomplished by
Sheriff’s service by delivering said process to Robert Hinton
at 906 Raleigh Street, Elizabeth City, North Carolina.
Movants, through their various affidavits, verify that
Robert Hinton was over the age of eighteen (18) years at
that time, and that he and Willie George Hinton II resided
at that address.
4. Defendant Willie George Hinton II was not married to
[Mrs. Hinton] but rather is the (now adult) child of [Mrs.
Hinton] and Willie George Hinton, Sr., born of the
marriage between [Mrs. Hinton] and Willie George Hinton,
Sr.
5. [Mrs. Hinton’s] lawful husband, Willie George Hinton,
Sr., filed an answer in this action, admitting the allegations
in [Mrs. Hinton’s] complaint, including that [Mrs. Hinton]
was married to Willie George Hinton II.
6. This Court entered a divorce judgment based upon one
year’s separation from Willie George Hinton II May 12,
2000.
7. On May 29, 2015, [Mrs. Hinton] filed an Amended
Motion to Set Aside the prior judgment entered on May 12,
2000, following the death of Willie George Hinton, Sr.
8. On June 4, 2015, the Court held a hearing upon [Mrs.
Hinton’s] motion. The Defendant, Willie George Hinton, II,
was properly served and present for said hearing. Finding
that an absolute divorce judgment from Willie George
Hinton II, a person to whom [Mrs. Hinton] was never
married, is void ab initio due to impossibility, this Court
entered an order on June 9, 2015, setting aside the May 12,
2000 divorce judgment after reviewing the record,
considering the arguments of counsel and receiving no
objection from the Defendant Willie George Hinton II.
9. No summons or amended summons was issued in the
name of Willie George Hinton, Sr. or served upon Willie
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HINTON V. HINTON
Opinion of the Court
George Hinton, Sr., extending the Court’s jurisdiction over
Willie George Hinton, Sr., personally. Nothing in the
record establishes any defect in service as to Willie George
Hinton, Sr[.]
10. No amendment of [Mrs. Hinton’s] complaint, or issue
of fact raised in the answer filed by Willie George Hinton,
Sr., established that [Mrs. Hinton] was married to Willie
George Hinton, Sr., rather than Defendant Willie George
Hinton, II. Nothing provided the Court with subject matter
jurisdiction over the marriage between [Mrs. Hinton] and
Willie George Hinton, Sr.
11. While the names of Willie George Hinton II and Willie
George Hinton, Sr., are similar, Defendant Willie George
Hinton II and Willie George Hinton, Sr., are distinct and
separate individuals. Nothing in the record establishes
that the summons or [Mrs. Hinton’s] complaint contains a
misnomer or misdescription as to the identity of the party
intended to be sued.
12. Willie George Hinton, Sr., is not, and has never been,
a party to this action entitled to notice and an opportunity
to be heard.
13. Amending the identity of the Defendant from the
named Defendant Willie George Hinton II to Willie George
Hinton, Sr., amounts to an improper substitution or entire
change of parties.
14. Movants, who are the heirs of Willie George Hinton,
Sr., have no interest in this action as their ancestor, Willie
George Hinton, Sr. is not, and has never been, a party to
this action.
Based on these findings of fact, the trial court made the following pertinent
conclusions of law:
3. Willie George Hinton, Sr., has never been a party to this
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HINTON V. HINTON
Opinion of the Court
action.
4. No substitution of a party to represent the interests of
Willie George Hinton, Sr., in this action following his death
is necessary or proper.
5. No alteration, amendment or modification of the prior
order entered on June 9, 2015 to correct the name of the
Defendant is necessary or proper.
6. No new trial is necessary or proper in that Willie George
Hinton, Sr., nor his heirs or anyone purporting to represent
his interests, are parties entitled to notice and an
opportunity to be heard.
7. This Court’s prior order, entered on June 9, 2015 upon
the Court’s own review of the record and consideration of
the arguments of counsel, without objection from either the
Plaintiff or the Defendant, was properly entered and is
affirmed.
Based on these conclusions of law, the trial court ordered the following:
1. The Motion to Intervene, Motion to Alter or Amend
Judgment, Motion for New Trial, and Motion to Substitute
Parties or to Abate or Continue are denied.
2. The prior order of this Court entered June 9, 2015 is
affirmed in that the divorce judgment entered May 12,
2000 is set aside.
On 11 December 2015, Movants filed a written notice of appeal.
Analysis
Movants seek review from this Court over the trial court’s 9 June and 17
November 2015 orders in their entirety. However, because Movants are not currently
parties to this action, the only issue they are entitled to raise in the present appeal is
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HINTON V. HINTON
Opinion of the Court
whether the trial court erred in the portion of its 17 November 2015 order denying
their motion to intervene.
Motions to intervene are governed by Rule 24 of the North Carolina Rules of
Civil Procedure, which states, in pertinent part, as follows:
(a) Intervention of right. — Upon timely application
anyone shall be permitted to intervene in an action:
(1) When a statute confers an unconditional right to
intervene; or
(2) When the applicant claims an interest relating
to the property or transaction which is the subject of
the action and he is so situated that the disposition
of the action may as a practical matter impair or
impede his ability to protect that interest, unless the
applicant’s interest is adequately represented by
existing parties.
(b) Permissive intervention. — Upon timely application
anyone may be permitted to intervene in an action.
(1) When a statute confers a conditional right to
intervene; or
(2) When an applicant’s claim or defense and the
main action have a question of law or fact in
common. . . . In exercising its discretion the court
shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of
the original parties.
N.C. Gen. Stat. § 1A-1, Rule 24 (2015).
Movants assert that the trial court erred in failing to grant their motion to
intervene pursuant to Rule 24(a)(2). “[A] party is entitled to intervene pursuant to
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Opinion of the Court
N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) in the event that he or she can demonstrate (1)
an interest relating to the property or transaction, (2) practical impairment of the
protection of that interest, and (3) inadequate representation of the interest by
existing parties.” Bailey & Assocs., Inc. v. Wilmington Bd. of Adjust., 202 N.C. App.
177, 185, 689 S.E.2d 576, 583 (2010). “This Court reviews a trial court's decision
granting or denying a motion to intervene pursuant to N.C. Gen. Stat. § 1A-1, Rule
24(a)(2), on a de novo basis.” Id.
The sole finding in the trial court’s 17 November 2015 order expressly
addressing Movants is finding No. 14, which states: “Movants, who are the heirs of
Willie George Hinton, Sr., have no interest in this action as their ancestor, Willie
George Hinton, Sr. is not, and has never been, a party to this action.” Finding No. 12
reiterates the trial court’s conclusion that “Willie George Hinton, Sr., is not, and has
never been, a party to this action entitled to notice and an opportunity to be heard.”
When a “finding includes a mixed question of fact and law . . . [it is] fully
reviewable by this Court.” Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 548,
356 S.E.2d 578, 586-87 (1987) (citation omitted). As explained below, we conclude
that the above-quoted findings are fatally flawed because they are premised on an
erroneous legal determination regarding Mr. Hinton’s status as a party.
While Mrs. Hinton’s complaint for divorce incorrectly listed Willie — as
opposed to Mr. Hinton — as the defendant, Mr. Hinton filed an answer to the
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HINTON V. HINTON
Opinion of the Court
complaint thirteen days after the complaint was filed. His handwritten answer
stated as follows:
State of North Carolina File No. 00CVD 177
Martin County
Name of Defendant:
Willie George Hinton, Sr.
Address:
906 Raleigh St.
City State Zip Code
Elizabeth City, N.C. 27909
To Each of The Plaintiff(s) Named Below:
Florence Bailey Hinton
906 Hunter St.
Elizabeth City, N.C. 27909
Defendant answers complaint of Plaintiff says [sic]:
That Defendan[t] admits to all of the complaints from 1
Thru [sic] 5 are true.
Wherefore, the defendant answers the Plaintiff’s prayers
that the bonds of Matrimony heretofore existing between
the parties be dissolved and the defendant be granted an
absolute divorce from the Plaintiff.
This the 20th day of April 2000.
Willie George Hinton
Defendant
By filing this answer, Mr. Hinton expressly became a party to the action and
submitted himself to the jurisdiction of the court. See N.C. Gen. Stat § 1-75.7 (when
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HINTON V. HINTON
Opinion of the Court
a party “makes a general appearance in an action[,]” the court has personal
jurisdiction over him).
Accordingly, we vacate the portion of the trial court’s 17 November 2015 order
denying Movants’ motion to intervene and remand this matter to the trial court for
reconsideration of the motion under Rule 24. See Anderson v. Seascape at Holden
Plantation, LLC, 232 N.C. App. 3, 10, 753 S.E.2d 691, 698 (2014) (“Therefore, we
reverse the trial court’s order denying the POA’s motion to intervene and remand for
further proceedings.”)
Conclusion
For the reasons stated above, we vacate the portion of the trial court’s 17
November 2015 order denying Movants’ motion to intervene and remand for further
proceedings not inconsistent with this opinion.
VACATED IN PART AND REMANDED.
Judges ELMORE and Judge DIETZ concur.
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