North Carolina Absolute Divorce Ex-husband Stranger Declaratory Judgment Lawyers Attorneys

HAROLD MAXWELL, JR. v. SANDRA E. WOODS, alias SANDRA E. MAXWELL

COURT OF APPEALS OF NORTH CAROLINA

May 20, 1980, Heard in the Court of Appeals

July 1, 1980, Filed

Defendant was married to William J. Woods on 6 October 1962. On 19 May 1969, defendant obtained a decree of absolute divorce from Woods by judgment of the District Court for Carteret County on the ground of one year's separation. Plaintiff and defendant were married on or about 15 March 1974.

Sometime thereafter, plaintiff transferred a piece of property to himself and defendant as tenants by the entirety. Plaintiff had purchased the property on 1 March 1974 and executed a note and deed of trust to secure the purchase. The Plaintiff new husband filed a declaratory judgment against his wife sought to establish that a decree of divorce between his wife and her former husband was void and that, therefore, plaintiff's subsequent marriage to defendant was void ab initio. Plaintiff also sought to have himself declared fee simple owner of a piece of property which he conveyed to himself and defendant as tenants by the entirety. The trial court concluded that plaintiff had no standing to attack collaterally the prior adjudication of divorce between defendant and Woods. Plaintiff appealed.

Issue:

Whether the trial court erred in concluding that plaintiff had no standing to attack collaterally the prior adjudication of divorce between defendant and Woods (defendant's Ex-husband)?

The Court states that this case is controlled by the case of Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617 (1956). The trial court found that the judgment role in the Carteret divorce action was in all respects regular on its face. Plaintiff does not contend otherwise. In Carpenter, our Supreme Court held that, as against challenge on the ground of false swearing, by way of pleading and of evidence, relating to the cause or ground for divorce, a divorce decree, in all respects regular on the face of the judgment roll, is at most voidable, not void. Even though there is proof that defendant and Woods had not lived separate and apart for one year as of the time of their divorce, the divorce judgment is not void but merely voidable.

From the above observation this court held that the Plaintiff does not have standing to attack collaterally the divorce decree between defendant and Woods because he is a stranger to the decree who is not prejudiced as to some pre-existing right by the decree. Since the marriage of plaintiff and defendant is not void on the grounds at issue in this appeal, this court need not consider plaintiff's claim that he be declared the sole owner of the real estate transferred by him to himself and defendant as tenants by the entirety.

This Court affirmed the trial court Judgment.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina Absolute Divorce Ex-husband Stranger Declaratory Judgment Lawyers Attorneys

By: Atchuthan Sriskandarajah

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