{ "id": 8321751, "name": "CHERYL W. MAYO, Plaintiff v. FRANK E. MAYO, Defendant", "name_abbreviation": "Mayo v. Mayo", "decision_date": "2005-08-16", "docket_number": "No. COA04-1334", "first_page": "844", "last_page": "848", "citations": [ { "type": "official", "cite": "172 N.C. App. 844" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "53 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520737 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc-app/53/0270-01" ] }, { "cite": "Ga. Code Ann. \u00a7 19-4-5", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "Ga. Code Ann. \u00a7 19-3-5", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "Ga. Code Ann. \u00a7 19-3-4", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "280 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838", "parenthetical": "noting our courts do not permit the submission of new theories, not previously argued, because \"the law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\"" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10", "parenthetical": "noting our courts do not permit the submission of new theories, not previously argued, because \"the law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "53 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520737 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0270-01" ] } ], "analysis": { "cardinality": 510, "char_count": 10218, "ocr_confidence": 0.762, "pagerank": { "raw": 2.091489473597207e-07, "percentile": 0.7604474237687217 }, "sha256": "7b2bddf7e6250b55875aa14ebd4dda02dd09d8fb064f65d62d7da46c51e380c6", "simhash": "1:df2bc4262f472126", "word_count": 1623 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ELMORE concur." ], "parties": [ "CHERYL W. MAYO, Plaintiff v. FRANK E. MAYO, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\n. Cheryl W. Mayo (\u201cplaintiff\u2019) appeals from a judgment of annulment of her marriage to Frank E. Mayo (\u201cdefendant\u201d). We affirm.\nOn 17 February 1999, plaintiff and defendant applied for a marriage license in Georgia. Each of them represented, in the block designated \u201cnumber of previous marriages,\u201d two previous marriages. Plaintiff and defendant married on 9 April 1999. In- 2001, defendant learned and later confirmed plaintiff had been previously married seven times rather than two times. Subsequently, defendant accepted employment and moved to California and then communicated to plaintiff that he considered the marital relationship at an end.\nPlaintiff filed for a divorce from bed and board, abandonment, indignities, and adultery in Transylvania County on 3 September 2002, seeking post-separation support, alimony, and equitable distribution. In plaintiff\u2019s complaint, she alleged the existence of a lawful marriage. Defendant admitted the existence of a valid marriage in his answer. After protracted litigation dealing with, inter alia, post-separation support in favor of plaintiff and interim distributions, a separate judgment of absolute divorce was entered on 25 March 2003. Thereafter on 11 March 2004, defendant submitted a motion in the cause for an annulment of the marriage. After conducting a hearing on the issues, the trial court entered a judgment annulling the marriage between the parties. From that judgment, plaintiff appeals, asserting the trial court erred in (1) permitting defendant to seek an annulment after earlier taking the position that the parties were legally married and (2) annulling the marriage on grounds of fraud when the only misrepresentation concerns the number of prior marriages.\nI. Contrary Positions\nPlaintiff asserts in her first assignment of error that defendant\u2019s pleadings include admissions of a lawful marriage, and annulment should not have been allowed in light of these admissions. We disagree.\nAt the hearing, plaintiff raised two initial challenges to the annulment proceeding: jurisdiction and standing. With respect to the standing argument, plaintiff argued defendant lacked standing to seek an annulment on the grounds that he was seeking to have the marriage annulled after a judgment of absolute divorce was entered. Specifically, plaintiff argued the following at the hearing:\nSo here you have a Movant who is trying to ask the Court for an annulment. . . but has already gotten a divorce from the person he\u2019s asking the Court to render the Annulment for. So I think there\u2019s a serious issue of standing to even raise that..... I\u2019ve never heard of anyone coming in later after a divorce has been granted and then . . . asking that . . . the prior marriage be declared null.... I don\u2019t think there is [standing to do that].\nIn her brief to this Court, however, plaintiff does not argue defendant lacked standing. Rather, plaintiff argues \u201cdefendant\u2019s ready admission that the parties were lawfully married in his pleadings, coupled with his lengthy silence on his alleged ground for an annulment necessarily demonstrate that the defendant was precluded from seeking an annulment.\u201d In so doing, plaintiff has impermissibly sought to change the theory presented in the instant appeal (defendant is bound by the representations in his pleadings) from that which was presented to the trial court for determination (defendant cannot seek an annulment because a judgment of divorce had already been entered). See Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (noting our courts do not permit the submission of new theories, not previously argued, because \u201cthe law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\u201d).\nMoreover, plaintiff cites and primarily relies on this Court\u2019s holding in Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981), involving a plaintiff husband who filed a complaint for divorce in North Carolina and, after being ordered by a North Carolina court to pay alimony and transfer custody of the child to the defendant wife, sought a decree of annulment in the courts of Virginia. The Virginia court annulled the parties\u2019 marriage, and this Court subsequently declined to give effect to the Virginia decree. Along with other reasons given, this Court noted it would violate North Carolina\u2019s public policy to give full faith and credit to the Virginia decree where plaintiff went to another state and sought an annulment in contradiction to his previous representations of a valid marriage solely to extinguish the defendant wife\u2019s right to alimony. Id., 53 N.C. App. at 279, 280 S.E.2d at 793. This case does not implicate the full faith and credit clause or the public policy in favor of it; accordingly, Fungaroli does not preclude defendant\u2019s right to seek an annulment of the marriage. This assignment of error is overruled.\nII. Grounds for Annulment\nIn her second assignment of error, plaintiff argues the trial court erred in annulling the marriage because \u201cplaintiffs alleged concealment of the number of her prior marriages [does] not rise to the level of fraud that is necessary to sustain an annulment.\u201d Initially, we note the parties sought and the trial court applied Georgia law in determining substantively whether an annulment should be granted the parties, who were married and lived a portion of their married life in Georgia.\nUnder Georgia law, the nature of consent by the parties required to constitute an actual contract of marriage is voluntary consent \u201cwithout any fraud practiced upon either.\u201d Ga. Code Ann. \u00a7 19-3-4 (2004). \u201cMarriages of persons . . . fraudulently induced to contract shall be void\u201d unless there occurs by the party so defrauded \u201ca subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife[,]\u201d which renders the marriage valid. Ga. Code Ann. \u00a7 19-3-5 (2004). An annulment, under Georgia law, operates in the same manner as \u201ca total divorce between the parties of a void marriage and shall return the parties thereto to their original status before marriage.\u201d Ga. Code Ann. \u00a7 19-4-5 (2004). The parties have not cited, nor can we find, a Georgia case concerning the effect of a misrepresentation concerning the number of prior marriages on the validity of the marriage. However, we do note that the Georgia application for a marriage license requires the bride and groom to disclose, under oath, the number of previous marriages, the method by which those marriages were dissolved, the grounds for dissolution, and the date and place. We hold plaintiffs argument, that her concealment of five of her seven previous marriages does not \u201cconstitute!] sufficient fraud to serve as a basis to annul a marriage,\u201d is erroneous for two reasons.\nFirst, the statutory law of Georgia is couched in terms of \u201cany\u201d fraud. The relevant question, therefore, is whether there exists fraud, not whether the existing fraud is sufficient. We do not read the term \u201cany\u201d to mean that there might not exist some de minimus standard in Georgia which would not justify annulling a marriage; however, a misrepresentation hiding five previous marriages while disclosing two does not, in our opinion, fall within such a de minimus standard.\nSecond, none of the cases from other jurisdictions cited by plaintiff involve a party hiding as many previous marriages as in the instant case. Certainly, the greater the concealed number of marriages, the more force has the argument of the injured party. The application for a marriage license in Georgia further evinces that state\u2019s interest in the circumstances of previous marriages, which are given under oath. In light of the statutory language of Georgia, the requirements of disclosure on the application for a marriage license in Georgia, and the comparison between the number of concealed versus the number of revealed marriages, we perceive no error in the trial court\u2019s annulment of the marriage in the instant case. This assignment of error is overruled.\nAffirmed.\nJudges McGEE and ELMORE concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "H. Paul Averette for plaintiff-appellant.", "Charles W. McKellerfor defendant-appellee." ], "corrections": "", "head_matter": "CHERYL W. MAYO, Plaintiff v. FRANK E. MAYO, Defendant\nNo. COA04-1334\n(Filed 16 August 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 impermissibly changing theory on appeal\nThe trial court did not err by permitting defendant husband to seek an annulment even though plaintiff wife contends defendant earlier took the position that the parties were legally married, because: (1) plaintiff has impermissibly sought to change the theory presented in the instant appeal from that which was presented to the trial court for determination; and (2) unlike in Fungaroli v. Fungaroli, 53 N.C. App. 270 (1981), this case does not implicate the full faith and credit clause or the public policy in favor of it that would preclude defendant\u2019s right to seek an annulment of the marriage.\n2. Annulment\u2014 fraud \u2014 concealment of number of prior marriages \u2014 Georgia law\nThe trial court did not err by annulling the parties\u2019 marriage on the ground of fraud even though the only misrepresentation concerned the number of plaintiff wife\u2019s prior marriages, because: (1) applying Georgia law, based on the parties being married and living a portion of their married life in Georgia, the nature of consent by the parties required to constitute an actual contract of marriage was voluntary consent without any fraud practiced upon either; (2) the Georgia application for a marriage license required the bride and groom to disclose, upon oath, the number of. previous marriages, the method by which those marriages were dissolved, the grounds for dissolution, and the date and place; (3) contrary to plaintiff\u2019s assertion, hiding five of seven previous marriages does not fall within a de minimus standard even if that standard existed; and (4) none of the cases from other jurisdictions cited by plaintiff involve a party hiding as many previous marriages as in the instant case.\nAppeal by plaintiff from judgment entered 28 May 2004 by Judge Laura Bridges in Transylvania County District Court. Heard in the Court of Appeals 18 May 2005.\nH. Paul Averette for plaintiff-appellant.\nCharles W. McKellerfor defendant-appellee." }, "file_name": "0844-01", "first_page_order": 874, "last_page_order": 878 }