Ivory v. Greer Bros.

HEDRICK, Judge.

The findings of fact of the Industrial Commission, when supported by competent evidence, are conclusive on appeal. G.S. § 97-86; Inscoe v. DeRose Industries, Inc., 292 N.C. 210, 232 S.E. 2d 449 (1977) [Citations omitted.]; Gaines v. L. D. Swain & Son, Inc., 33 N.C. App. 575, 235 S.E. 2d 856 (1977). The question before this Court in this case is whether competent evidence was adduced at the hearing before Chairman Stephenson to support the following challenged findings of fact:

Findings Of Fact

2. James and Mary lived together continuously as man and wife from the date of their marriage until they separated in 1968. Mary thereafter continued to reside in the home which they occupied at 1301 Willowdale Drive, Durham, North Carolina, to the date of the hearing in this case. Mary had absolutely no contact with James from the date of their separation until sometime during the year 1976 when James showed up at the Willowdale Drive address and talked to Mary. No legal documents of any type were ever served on Mary concerning any divorce, although James knew at all times where Mary was living. When James returned to Mary’s home in 1976 he did not tell Mary he had remarried but Mary informed him when he tendered a present to her that she could not accept it for the reason that she had remarried.

3. On December 11, 1972 Mary obtained an absolute divorce in the General Court of Justice, District Court Division of Durham County. This was the only divorce ever obtained by Mary or James.

4. On January 31, 1972 James and Shirley Elizabeth Neblett (hereinafter “Shirley”) obtained a marriage license in Richmond, Virginia. On the application for license James stated that he was single and this was his first marriage, when in truth and in fact it was his second “marriage” and he was at that time still legally wed to Mary. James and Shirley went through a “marriage” ceremony in Hastings, Virginia on January 31, 1972. James told Shirley he had never been married before but had one illegitimate son. Shirley thereafter lived with him continuously until about ten months prior to his death. James was then having difficulty obtaining work in the Richmond area so he went to temporarily stay with his mother, Sally V. Ivory, in North Carolina, but when he could do so would return to his home with Shirley in Virginia. In fact, he spent three nights with Shirley during the latter part of November of 1977.

5. When James and Shirley went through a marriage ceremony in Virginia on January 31, 1972 James was still legally married to Mary. At that time he could not legally enter into a marriage contract with anyone else and said “marriage” was therefore void ab initio. For this reason, Shirley was not the “widow” of James.

6. At the time of his death James left surviving as his sole whole dependents his three minor children, Maurice Ivory, Sulisa Ivory, and Tony A. Ivory who are entitled to all compensation due by reason of the death.

From these facts the Commission concluded that the “marriage” between James and Shirley was a nullity and thus the three minor children were entitled to all benefits due by reason of James’s death. The appellant asserts that the evidence was not sufficient to support the findings upon which these conclusions were based for the reason that the evidence was not sufficient to overcome the presumption in law that the second marriage is the valid one. That presumption has been well-stated as follows:

“A second or subsequent marriage is presumed legal until the contrary be proved, and he who asserts its illegality must prove it. In such case the presumption of innocence and morality prevail over the presumption of the continuance of the first or former marriage.”

Kearney v. Thomas, 225 N.C. 156, 164, 33 S.E. 2d 871, 877 (1945) [citations omitted]. While it is true that the presumption exists, our Supreme Court has held that the issue of the validity of the second or subsequent marriage is properly submitted to the finder of facts which, in a case like the one before us, must decide whether the party contesting the marriage’s validity has produced sufficient evidence to overcome the presumption. Id.; see also Chalmers v. Womack, 269 N.C. 433, 152 S.E. 2d 505 (1967).

In the case at bar, the fact-finder has determined that Mary, the party with the burden of proof, did offer enough evidence to rebut the presumption that James’s marriage to Shirley was valid. We agree. The findings of fact on the issue are amply supported by competent evidence in the record, namely: Mary and James were married in 1962 and lived together thereafter until 1968; Mary live at the same address after she and James separated, but she did not hear anything from him until he came back to visit in 1976; Mary was never served with any legal process regarding a divorce action instituted by James; Mary obtained an absolute divorce from James on 11 December 1972, some ten months after James purported to marry Shirley; when James applied for a license to marry Shirley, he told the clerk that he was single and had never been married before; James never told Shirley that he had been married before; James never told Mary that he had remarried.

From this evidence the Commission found that James was still married to Mary when he went through the marriage ceremony with Shirley and therefore concluded that the subsequent “marriage” was void ab initio. We think the Commission properly so found and concluded.

Appellant relies on Denson v. C. R. Fish Grading Co., Inc., 28 N.C. App. 129, 220 S.E. 2d 217 (1975), for the proposition that “[t]he mere proof that one party had not obtained a divorce [e.g., by a showing of no notice or service of divorce proceedings] is not sufficient to overcome the presumption, since the other party might have obtained a divorce.” Id. at 131, 220 S.E. 2d at 219. That is a correct statement of the law which obtains in this State, but Denson also held that the question of whether a first wife of a deceased employee had overcome the presumption of the validity of a subsequent marriage was a question of fact for the Commission. In that case, the Commission found as a fact that the first wife had not overcome the presumption. Its finding was supported by the record which established only that the first wife had never been served with any notice of a divorce obtained by her husband.

Conversely, in the case at hand, the Commission has found as a fact that the first wife has overcome the presumption. Its finding is supported by competent evidence of record, including evidence in addition to the lack of notice to Mary that James had ever instituted divorce proceedings. Its finding will thus not be disturbed on appeal. Accordingly, the Opinion and Award appealed from, dated 22 May 1979, is affirmed.

Affirmed.

Judges Vaughn and Clark concur.