{ "id": 8300928, "name": "CARL GLENN PICKARD, JR., Plaintiff v. JANE EDWARDS PICKARD, Defendant", "name_abbreviation": "Pickard v. Pickard", "decision_date": "2006-02-21", "docket_number": "No. COA05-426", "first_page": "193", "last_page": "205", "citations": [ { "type": "official", "cite": "176 N.C. App. 193" } ], "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": "594 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631237, 12631238 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "citing Graham v. Martin, 149 N.C. App. 831, 561 S.E.2d 583 (2002)" } ], "opinion_index": 0, "case_paths": [ "/se2d/594/0194-02", "/se2d/594/0194-01" ] }, { "cite": "358 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631237, 12631320, 12631321, 12631259, 12631260, 12631261 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "citing Graham v. Martin, 149 N.C. App. 831, 561 S.E.2d 583 (2002)" } ], "opinion_index": 0, "case_paths": [ "/se2d/594/0194-02", "/se2d/596/0020-02", "/se2d/596/0020-01", "/se2d/594/0033-02", "/se2d/594/0033-01", "/se2d/594/0034-02" ] }, { "cite": "532 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9302102 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0742-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "887" }, { "page": "888-89", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "year": 2004, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "561 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "149 N.C. App. 831", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9132526 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0831-01" ] }, { "cite": "589 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 542", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959205 ], "year": 2003, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0542-01" ] }, { "cite": "409 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "330 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509699 ], "year": 1991, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0143-01" ] }, { "cite": "442 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "497", "parenthetical": "citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)" } ], "opinion_index": 0 }, { "cite": "336 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539559 ], "year": 1994, "pin_cites": [ { "page": "291", "parenthetical": "citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0284-01" ] }, { "cite": "411 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "650" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520747 ], "year": 1992, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0014-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "33 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "225 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601928 ], "year": 1945, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0156-01" ] }, { "cite": "272 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "354", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567995 ], "year": 1980, "pin_cites": [ { "page": "487", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0479-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 51-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1977, "opinion_index": 0 }, { "cite": "315 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400561, 2399698, 2394071, 2398716, 2396287 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0744-03", "/nc/310/0744-04", "/nc/310/0744-01", "/nc/310/0744-02", "/nc/310/0744-05" ] }, { "cite": "312 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "238" }, { "page": "239" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525883 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "161" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0159-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "270 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519371 ], "year": 1980, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0058-01" ] }, { "cite": "598 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "589" }, { "page": "590" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995613 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "30" }, { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0001-01" ] }, { "cite": "19 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275062 ], "weight": 2, "year": 1836, "opinion_index": 1, "case_paths": [ "/nc/19/0177-01" ] }, { "cite": "259 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "298 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572737 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0465-01" ] }, { "cite": "35 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275025 ], "year": 1852, "opinion_index": 1, "case_paths": [ "/nc/35/0289-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 51-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "387" } ], "opinion_index": 1 }, { "cite": "28 S.E. 416", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1897, "pin_cites": [ { "page": "418" } ], "opinion_index": 1 }, { "cite": "121 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653809 ], "year": 1897, "pin_cites": [ { "page": "656-57" } ], "opinion_index": 1, "case_paths": [ "/nc/121/0650-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 51-3.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2003, "opinion_index": 1 }, { "cite": "59 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681863 ], "weight": 3, "year": 1860, "pin_cites": [ { "page": "143", "parenthetical": "evidence to support an annulment \"ought to be so overwhelming as to leave not a doubt about the facts thus declared.\"" }, { "page": "143" }, { "page": "143" } ], "opinion_index": 1, "case_paths": [ "/nc/59/0141-01" ] }, { "cite": "332 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720010, 4723567, 4719316, 4724474, 4724541 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0599-03", "/nc/313/0599-01", "/nc/313/0599-02", "/nc/313/0599-05", "/nc/313/0599-04" ] }, { "cite": "326 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "358" }, { "page": "358" } ], "opinion_index": 1 }, { "cite": "73 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524126 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "387" }, { "page": "387" }, { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/nc-app/73/0382-01" ] }, { "cite": "270 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "49 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519521 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/49/0094-01" ] }, { "cite": "33 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "876" } ], "opinion_index": 1 }, { "cite": "225 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601928 ], "year": 1945, "pin_cites": [ { "page": "163" } ], "opinion_index": 1, "case_paths": [ "/nc/225/0156-01" ] }, { "cite": "272 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1980, "pin_cites": [ { "page": "354" }, { "page": "354-55", "parenthetical": "1980" }, { "page": "354" }, { "page": "354" }, { "page": "354" } ], "opinion_index": 1 }, { "cite": "301 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567995 ], "weight": 5, "year": 1980, "pin_cites": [ { "page": "487" }, { "page": "488" }, { "page": "488" }, { "page": "487" }, { "page": "488" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0479-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 51-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 1977, "opinion_index": 1 }, { "cite": "315 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400561, 2399698, 2394071, 2398716, 2396287 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0744-03", "/nc/310/0744-04", "/nc/310/0744-01", "/nc/310/0744-02", "/nc/310/0744-05" ] }, { "cite": "312 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "239" }, { "page": "239" } ], "opinion_index": 1 }, { "cite": "67 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525883 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "163" }, { "page": "163" } ], "opinion_index": 1, "case_paths": [ "/nc-app/67/0159-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 1 } ], "analysis": { "cardinality": 1085, "char_count": 30040, "ocr_confidence": 0.749, "pagerank": { "raw": 6.209811994104169e-08, "percentile": 0.3844758902932179 }, "sha256": "b7f1466eeb1d8ed88988ae6a6878b755db42e15dc86951789ce9e6be058141c4", "simhash": "1:19ea642ed49716f1", "word_count": 4766 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEVINSON concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "CARL GLENN PICKARD, JR., Plaintiff v. JANE EDWARDS PICKARD, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nCarl Glenn Pickard (\u201cplaintiff\u2019) appeals from the trial court\u2019s order denying the annulment of his marriage to Jane Edwards Pickard (\u201cdefendant\u201d). As discussed below, we affirm.\nHawk Littlejohn (\u201cLittlejohn\u201d), a Cherokee Indian, married plaintiff and defendant in the Native American tradition on 7 June 1991. Plaintiff is a physician employed by the University of North Carolina at Chapel Hill (\u201cUNC\u201d). Plaintiff had met Littlejohn at the UNC medical school where Littlejohn lectured as a Cherokee shaman or \u201cmedicine man.\u201d Littlejohn performed healings and conducted ceremonies in accordance with Cherokee traditions. Littlejohn also possessed a certificate stating that he was ordained as a minister in the Universal Life Church.\nDefendant initially desired to be married in a traditional Christian ceremony. Plaintiff persuaded defendant to be married in the Cherokee tradition with Littlejohn performing the ceremony. When Littlejohn performed the wedding ceremony, both the parties believed the ceremony was legally sufficient to bind plaintiff and defendant as husband and wife. Littlejohn conducted the parties\u2019 ceremony in accordance with the Cherokee marriage tradition. The parties received a North Carolina license and certificate of marriage on 3 December 2002, which was filed in the Caswell County Register of Deeds office.\nAfter the ceremony, and for the next eleven years, the parties lived together and conducted themselves as husband and wife. In 1998, plaintiff initiated proceedings to adopt defendant\u2019s adult biological daughter. In his amended petition for adult adoption, and as a requisite of the adoption, plaintiff provided a sworn statement that he was \u201cthe stepfather of the adoptee, having married her natural mother.\u201d Plaintiff also listed his marital status as \u201cmarried.\u201d The clerk of superior court in Caswell County filed an amended decree of adoption on 9 November 1998, based on plaintiff\u2019s assertions.\nOn 9 April 2002, the parties separated. On 23 April 2002, plaintiff filed a complaint for annulment of his eleven-year marriage to defendant. On 23 May 2002, defendant answered and denied that plaintiff was entitled to an annulment. After plaintiff presented his evidence, defendant moved for a directed verdict. Counsel for both parties argued and briefed defenses of collateral estoppel and res judicata. On 3 February 2003, the court informed the parties through correspondence that defendant\u2019s motion for directed verdict was denied.\nOn 28 May 2003, defendant filed a motion to amend the pleadings alleging the defenses of collateral estoppel and res judicata. A delay occurred due to the illness of the presiding judge. On 7 May 2004, defendant presented evidence. At the conclusion of defendant\u2019s evidence, defendant\u2019s motion for a directed verdict was denied.\nOn 27 September 2004, the trial court filed a judgment concluding that the marriage ceremony was not properly solemnized because Littlejohn was not qualified to perform a marriage ceremony. The court denied plaintiff\u2019s claim for annulment because plaintiff had asserted under oath, judicially admitted and proved his marriage to defendant in the adoption proceeding. Plaintiff appeals. Defendant argues cross assignments of error.\nPlaintiff first argues that the trial court erred in allowing defendant\u2019s motion to amend her answer to include the defenses of estoppel, collateral estoppel and res judicata. We disagree.\n\u201cThe trial court\u2019s decision regarding a party\u2019s motion to amend the pleadings will not be disturbed on appeal unless an abuse of discretion is shown.\u201d Stetser v. TAP Pharm. Prods., Inc., 165 N.C. App. 1, 30, 598 S.E.2d 570, 589 (2004). After the filing of a responsive pleading, \u201ca party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (2003). \u201cRule 15(a) contemplates liberal amendments to the pleadings, which should always be allowed unless some material prejudice is demonstrated.\u201d Stetser, 165 N.C. App. at 31, 598 S.E.2d at 590. \u201cSome of the reasons for denying a motion to amend include undue delay by the moving party, unfair prejudice to the nonmoving party, bad faith, futility of the amendment, and repeated failure to cure defects by previous amendments.\u201d Id. \u201cThe objecting party has the burden of satisfying the trial court that he would be prejudiced by the granting or denial of a motion to amend.\u201d Watson v. Watson, 49 N.C. App. 58, 60, 270 S.E.2d 542, 544 (1980).\nHere, the court\u2019s allowance of the amendment did not prejudice plaintiff\u2019s ability to present evidence related to the additional defenses. The court deferred its ruling on amendment until it had heard evidence on estoppel, and permitted both parties to submit briefs if they desired. Plaintiff never argued at trial that he was prejudiced in his ability to present evidence on these issues; he merely contended that the issues could not be considered because they had not been included in the original answer. We conclude that the court did not abuse its discretion in permitting amendment of defendant\u2019s answer.\nPlaintiff argues that the trial court erred when it denied the annulment. We do not agree.\nA party to a marriage may seek an annulment in accordance with N.C. Gen. Stat. \u00a7 50-4 (2003). The statute provides:\nThe district court, during a session of court, on application made as by law provided, by either party to a marriage contracted contrary to the prohibitions contained in the Chapter entitled Marriage, or declared void by said Chapter, may declare such marriage void from the beginning, subject, nevertheless, to G.S. 51-3.\nN.C. Gen. Stat. \u00a7 50-4 (2003). This Court stated in Geitner v. Townsend, \u201c[a] voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time.\u201d 67 N.C. App. 159, 161, 312 S.E.2d 236, 238, disc. review denied, 310 N.C. 744, 315 S.E.2d 702 (1984). N.C. Gen. Stat. \u00a7 51-1 (1977) was the statute in effect that governed marriage ceremonies when plaintiff and defendant were married. The statute required the parties to \u201cexpress their solemn intent to marry in the presence of (1) an ordained minister of any religious denomination, or (2) a minister authorized by his church or (3) a magistrate.\u201d State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980) (internal quotation marks omitted).\nOur Supreme Court has stated: \u201c[u]pon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage.\u201d Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945). The burden of proof rests upon plaintiff to prove by the greater weight of the evidence grounds to void or annul the marriage to overcome the presumption of a valid marriage. Townsend, 67 N.C. App. at 163, 312 S.E.2d at 239.\nWe begin by noting that the dissent states that Littlejohn was an ordained minister. However, although the trial court found that Littlejohn possessed a certificate stating that he was ordained by the Universal Life Church, \u201c[t]hat at no time was Hawk Littlejohn a minister of the gospel licensed to perform marriages.\u201d The court also found and concluded that Littlejohn\u2019s ordination was not cured by N.C. Gen. Stat. \u00a7 50-1.1. Because these findings have not been challenged, they are conclusive on appeal. Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C. App. 14, 22, 411 S.E.2d 645, 650 (1992).\n\u201cThe well-established rule is that findings of fact by the trial court supported by competent evidence are binding on the appellate courts even if the evidence would support a contrary finding.\u201d Scott v. Scott, 336 N.C. 284, 291, 442 S.E.2d 493, 497 (1994) (citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)). \u201cAs to findings in a bench trial, we review matters of law de novo.\u201d State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 548-49, 589 S.E.2d 391, 397 (2003), disc. review denied, 358 N.C. 241, 594 S.E.2d 194 (2004) (citing Graham v. Martin, 149 N.C. App. 831, 561 S.E.2d 583 (2002)), disc. rev. denied, 358 N.C. 241, 594 S.E.2d 194 (2004).\nIn its judgment, the trial court concluded as law that although the parties\u2019 marriage was not properly solemnized pursuant to statute, plaintiff was estopped from obtaining an annulment on several grounds, including judicial estoppel, quasi-estoppel, collateral estoppel and res judicata. As discussed below, we conclude that judicial estoppel applies here and affirm the trial court\u2019s judgment on that basis.\n\u201c[judicial estoppel seeks to protect courts, not litigants, from individuals who would play \u2018fast and loose\u2019 with the judicial system.\u201d Whitacre P\u2019ship v. BioSignia, Inc., 358 N.C. 1, 26, 591 S.E.2d 870, 887 (2004). In addition, \u201cbecause of its inherent flexibility as a discretionary equitable doctrine, judicial estoppel plays an important role as a gap-filler, providing courts with a means to protect the integrity of judicial proceedings where doctrines designed to protect litigants might not adequately serve that role.\u201d Id. In adopting the framework of the United States Supreme Court as stated in New Hampshire v. Maine, 532 U.S. 742, 149 L. Ed. 2d 968 (2001), the North Carolina Supreme Court has set forth three factors to be considered in applying judicial estoppel:\nFirst, a party\u2019s subsequent position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party\u2019s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding might pose a threat to judicial integrity by leading to inconsistent court determinations or the perception that either the first or the second court was misled. Third, courts consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.\nId. at 29, 591 S.E.2d at 888-89 (internal quotation marks and citations omitted). Here, plaintiff takes the position that his marriage is voidable, a position clearly inconsistent with his sworn statements in the adoption proceedings. The court initially accepted plaintiff\u2019s earlier assertion that he was married to defendant in permitting his adoption of defendant\u2019s daughter. Although the second adoption order did not explicitly so find, it was based nonetheless on plaintiff\u2019s sworn assertion that he was married to defendant. Finally, plaintiff would impose an unfair detriment on defendant by undoing an eleven-year marriage were he allowed to proceed with his inconsistent position here. The trial court\u2019s application of judicial estoppel was proper, and we affirm its denial of plaintiffs petition for annulment.\nThis opinion does not address and certainly does not validate any form of \u201ccommon law marriage.\u201d Neither party here claimed to have a common law marriage, and no such issue has been raised before this Court. Our decision is based only upon the application of judicial estoppel to the case before us.\nBecause we conclude that the trial judge properly denied annulment on grounds of judicial estoppel, we need not address plaintiffs other arguments or defendant\u2019s cross-assignment of error.\nAffirmed.\nJudge LEVINSON concurs.\nJudge TYSON dissents in a separate opinion.", "type": "majority", "author": "HUDSON, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion holds plaintiff-husband is judicially estopped from obtaining an annulment and denying his eleven-year marriage to defendant-wife because he asserted in a sworn statement that he and defendant were married during the adoption proceeding of defendant\u2019s daughter. Defendant\u2019s cross assignments of error and appeal from the trial court\u2019s conclusion that the wedding ceremony was not properly solemnized and failed to comply with North Carolina\u2019s marriage statutes has merit. That portion of the trial court\u2019s order should be reversed, and plaintiff\u2019s complaint should be dismissed. I respectfully dissent.\nI. Background\nIn 1991, plaintiff\u2019s and defendant\u2019s wedding was celebrated on Sourwood Farm, where solemn Cherokee ceremonies regularly occurred. Littlejohn, the shaman and minister performing the marriage, wore a ceremonial ribbon shirt. Defendant wore white. A ceremonial fire burned throughout the ceremony. Littlejohn addressed and hailed, \u201cthe creator, ancestors, four-legged creatures, two-legged creatures, creatures without legs, and winged creatures.\u201d Plaintiff and defendant exchanged blankets to symbolize their sexual fidelity. Defendant gave plaintiff poached corn to symbolize her commitment to maintain her husband\u2019s home. Plaintiff gave defendant beef jerky to symbolize that he would provide for her as his wife. The parties exchanged wedding rings, and Littlejohn publicly pronounced them as man and wife. Littlejohn presented plaintiff and defendant with a marriage stick and a marriage certificate. The parties had applied for and received a North Carolina Marriage License and Certificate of Marriage in June 1991, which was filed with the Caswell County Register of Deeds Office.\nAfter the ceremony, and for the next eleven years, the parties lived together and held themselves out as husband and wife in the following ways: (1) they visited friends and introduced themselves as husband and wife; (2) they purchased property in Caswell County, as tenants by the entirety, and the deed recited plaintiff and defendant as the grantees and as married; (3) the parties borrowed money as husband and wife; (4) the parties each contributed funds to purchase their marital home; (5) defendant left her profession to remain at home as plaintiff\u2019s wife; (6) the parties filed joint tax returns as husband and wife; (7) the parties slept together in a common marital bed and engaged in sexual relations; (8) the parties attended church together and participated in community events as husband and wife; (9) the parties served as guardians for foster children and asserted on the applications they were husband and wife; (10) plaintiff initiated and completed adoption proceedings in Caswell County for a stepparent adoption of defendant\u2019s daughter; (11) plaintiff filed a sworn statement in the amended petition for adult adoption that he was the stepfather of the adoptee and was married to her biological mother who gave her consent for the adoption; and (12) following the parties\u2019 separation, plaintiff continued to provide defendant with dependant health insurance coverage listing her as his wife.\nII. Issues\nDefendant-wife cross assigns as error the trial court\u2019s ruling that the parties\u2019 marriage was not properly solemnized. I agree with defendant.\nThe majority\u2019s opinion holds because the trial court found \u201c[t]hat at no time was Hawk Littlejohn a minister of the gospel licensed to perform marriages,\u201d and \u201cthese findings have not been challenged on appeal, they are conclusive on appeal.\u201d This \u201cfinding of fact\u201d is a \u201cconclusion of law.\u201d Defendant assigned error to the trial court\u2019s conclusion of law, which stated, \u201c[t]hat the marriage was not properly solemnized in that the person performing the marriage ceremony was not an ordained minister, nor qualified to perform the marriage ceremony.\u201d Defendant challenged this conclusion on appeal and properly preserved this issue for appellate review.\nIII. Solemnization\nA party to a marriage may seek an annulment under North Carolina law. N.C. Gen. Stat. \u00a7 50-4 (2003) provides:\nThe district court, during a session of court, on application made as by law provided, by either party to a marriage contracted contrary to the prohibitions contained in the Chapter entitled Marriage, or declared void by said Chapter, may declare such marriage void from the beginning, subject, nevertheless, to G.S. 51-3.\n\u201cIn North Carolina, only bigamous marriages have thus far been declared absolutely void. 1 R. Lee, North Carolina Family Law Sec. 18 (4th ed. 1979); Redfern v. Redfern, 49 N.C. App. 94, 270 S.E.2d 606 (1980). All other marriages are voidable.\u201d Fulton v. Vickery, 73 N.C. App. 382, 387, 326 S.E.2d 354, 358, cert. denied, 313 N.C. 599, 332 S.E.2d 178 (1985). No issue of bigamy is present before us.\nPlaintiff asserts his marriage to defendant is voidable because the marriage ceremony was not solemnized in compliance with North Carolina law. Plaintiff argues Littlejohn was not \u201can ordained\u201d minister and could not legally pronounce plaintiff and defendant to be husband and wife. Plaintiff also argues the trial court should have granted an annulment because Littlejohn did not qualify as a licensed \u201cminister authorized by his church.\u201d Plaintiff\u2019s argument fails.\nN.C. Gen. Stat. \u00a7 51-1 (1977) was the statute governing marriage ceremonies when plaintiff and defendant were married. The statute required the parties to \u201cexpress their solemn intent to marry in the presence of (1) an ordained minister of any religious denomination, or (2) a minister authorized by his church or (3) a magistrate.\u201d State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980).\nThe majority\u2019s opinion cites Kearney v. Thomas, for the proposition that \u201c[u]pon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage.\u201d 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945). A plaintiff bears the burden to overcome the presumption of a valid marriage to void or annul the marriage. Geitner v. Townsend, 67 N.C. App. 159, 163, 312 S.E.2d 236, 239, disc. rev. denied, 310 N.C. 744, 315 S.E.2d 702 (1984); see also Jackson v. Rhem, 59 N.C. 141, 143 (1860) (evidence to support an annulment \u201cought to be so overwhelming as to leave not a doubt about the facts thus declared.\u201d).\n1. Solemn Intent to Marrv\nPlaintiff and defendant \u201cexpressed] their solemn intent to marry\u201d in 1991 at a traditional Cherokee wedding ceremony attended by many witnesses before an \u201cordained minister.\u201d N.C. Gen. Stat. \u00a7 51-1. The trial court stated in finding of fact number seventeen that the parties\u2019 wedding ceremony was \u201cconducted in the \u2018Cherokee way\u2019 and [performed] in accordance with the Cherokee marriage ceremony.\u201d The ceremony was held at a location where Cherokee ceremonies and marriages take place. The parties dressed in traditional Cherokee clothing. A ceremonial fire burned throughout the ceremony. Littlejohn conducted a Cherokee spiritual wedding ceremony as he addressed and hailed the Creator and creatures in nature. Plaintiff and defendant exchanged traditional Cherokee marriage symbols. Plaintiff and defendant exchanged wedding rings, and Littlejohn publicly pronounced them to be husband and wife. Littlejohn presented plaintiff and defendant with a marriage stick and a North Carolina marriage license, which was subsequently filed with the Caswell County Register of Deeds. The statute\u2019s requirement of the parties to express a solemn intent to marry is satisfied.\nNorth Carolina acknowledges and celebrates the solemnity of a native tribal wedding ceremony and validates the ceremony as a recognized marriage as evidenced in the General Assembly\u2019s passage of N.C. Gen. Stat. \u00a7 51-3.2 (2003). The statute provides:\n(a) Subject to the restriction provided in subsection (b), a marriage between a man and a woman licensed and solemnized according to the law of a federally recognized Indian Nation or Tribe shall be valid and the parties to the marriage shall be lawfully married.\n(b) When the law of a federally recognized Indian Nation or Tribe allows persons to obtain a marriage license from the register of deeds and the parties to a marriage do so, Chapter 51 of the General Statutes shall apply and the marriage shall be valid only if the issuance of the license and the solemnization of the marriage is conducted in compliance with this Chapter.\nN.C. Gen. Stat. \u00a7 51-3.2.\nWhile this statute was enacted after plaintiff and defendant were married, the statute illustrates North Carolina\u2019s legislative intent to uphold marriages celebrated and solemnized \u201caccording to the law of a federally recognized Indian Nation or Tribe.\u201d Id.\n2. In the Presence of a Minister\nPlaintiff asked Littlejohn, an ordained minister, to perform the ceremony. Littlejohn had performed other weddings in the Cherokee tradition. Neither plaintiff nor defendant questioned Littlejohn\u2019s credentials or authority to perform the wedding ceremony for over eleven years until after the parties separated on 9 April 2002. It is undisputed that a solemn wedding ceremony occurred. The parties publicly consented to be married and both believed Littlejohn was an ordained minister authorized to perform weddings and legally qualified to pronounce them as husband and wife. Plaintiff and defendant obtained a North Carolina Marriage License, which states Littlejohn was an ordained minister.\nFor eleven years, the parties held themselves out to be legally married, and conducted all their business and personal affairs as husband and wife. Before plaintiff and defendant separated, plaintiff requested a divorce from defendant.\nPlaintiff entered into evidence a copy of Littlejohn\u2019s ordination of ministry from the Universal Life Church. Plaintiff argues these credentials were insufficient to comply with the marriage statute. He asserts Littlejohn did not possess the legal authority to validly perform the parties\u2019 wedding ceremony in North Carolina and contends the marriage is voidable.\nIn Lynch, a criminal prosecution for bigamy, our Supreme Court stated:\n\u201c[A] marriage pretendedly celebrated before a person not authorized would be a nullity.\u201d State v. Wilson, 121 N.C. 650, 656-57, 28 S.E. 416, 418 (1897). A ceremony solemnized by a Roman Catholic layman in the mail order business who bought for $ 10.00 a mail order certificate giving him \u201ccredentials of minister\u201d in the Universal Life Church, Inc. \u2014 whatever that is \u2014 is not a ceremony of marriage to be recognized for purposes of a bigamy prosecution in the State of North Carolina. The evidence does not establish \u2014 rather, it negates the fact \u2014 that Chester A. Wilson was authorized under the laws of this State to perform a marriage ceremony.\n301 N.C. at 488, 272 S.E.2d at 354-55 (1980) (emphasis supplied).\nFollowing the Court\u2019s decision in Lynch, the General Assembly enacted N.C. Gen. Stat. \u00a7 51-1.1, which provides:\nAny marriages performed by ministers of the Universal Life Church prior to July 3, 1981, are validated, unless they have been invalidated by a court of competent jurisdiction, provided that all other requirements of law have been met and the marriages would have been valid if performed by an official authorized by law to perform wedding ceremonies.\nThis statute rendered the marriage performed by an ordained minister of the Universal Life Church valid in Fulton. 73 N.C. App. at 387, 326 S.E.2d at 358. In Fulton, the parties married in 1972. 73 N.C. App. at 384, 362 S.E.2d at 356. Charles E. Vickery performed the marriage ceremony as an ordained minister by the Universal Life Church. Id. at 385, 362 S.E.2d at 356. In 1979, the Fultons entered into a separation agreement that stated that the parties were married in Chapel Hill in 1972. Id. The agreement provided that the plaintiff would deed her interest in the marital residence to the defendant. Id. The plaintiff filed suit against defendant in 1980 to enforce the agreement. Id. While the suit was pending, our Supreme Court issued the Lynch decision. Id. The defendant Fulton moved for summary judgment and argued the marriage was voidable because the marriage ceremony was performed by an ordained minister in the Universal Life Church. Id. Summary judgment was granted, and the plaintiff appealed. Id. In 1981, the General Assembly passed N.C. Gen. Stat. \u00a7 51-1.1. The plaintiff withdrew her appeal. Id. The plaintiff filed the later action in 1983. This Court stated, \u201c[a]s the marriage between plaintiff and defendant Fulton was never invalidated, then G.S. Sec. 51-1.1 (1984) applies to validate the marriage. The net effect of the statute is to render the marriage valid from its inception.\u201d Id. at 387, 362 S.E.2d at 358.\nHere, plaintiff and defendant were married in 1991. Littlejohn was licensed by the Universal Life Church on 4 June 1985 as an \u201cordained minister.\u201d Our Supreme Court stated in Lynch, \u201c[i]t is not within the power of the State to declare what is or is not a religious body or who is or is not a religious leader within the body.\u201d 301 N.C. at 488, 272 S.E.2d at 354 (citing State v. Bray, 35 N.C. 289 (1852)). Unlike the Universal Life minister in the criminal bigamy prosecution in Lynch, Littlejohn had performed many wedding ceremonies as a Cherokee Indian in the Cherokee tradition. Littlejohn was known throughout North Carolina as a Cherokee shaman and medicine man who performed various Cherokee rituals, including wedding ceremonies. Littlejohn\u2019s death certificate listed his profession as a \u201ccraftsman/medicine man.\u201d\nAlso, in Lynch, the State had the highest burden to prove the defendant had committed bigamy. The Court stated, \u201cthe State is required to establish beyond a reasonable doubt that Chester A. Wilson was an ordained minister of a religious denomination or a minister authorized by his church.\u201d Id. at 487, 272 S.E.2d at 354. The Court held that the State failed to meet their burden to prove the minister was legally ordained. Id.\nIn the present case, the burden of proof rests upon plaintiff to prove the invalidity or voidability of the marriage. Geitner, 67 N.C. App. at 163, 312 S.E.2d at 239. Plaintiff carries a heavy burden. Jackson, 59 N.C. at 143. The only evidence plaintiff offered to prove the invalidity of his marriage to defendant was that Littlejohn was ordained and licensed by the Universal Life Church. The presumption remains that plaintiff and defendant were married in accordance with N.C. Gen. Stat. \u00a7 51-1. They \u201cexpressed] their solemn intent to marry in the presence of an ordained minister.\u201d Lynch, 301 N.C. at 487, 272 S.E.2d at 354.\nPlaintiff failed to produce any evidence or offer any controlling law that Littlejohn was not an \u201cordained minister\u201d or not \u201cauthorized by his church\u201d to perform weddings in accordance with the traditions of the Cherokee Nation or in accordance with our applicable statute. N.C. Gen. Stat. \u00a7 51-1. Undisputed evidence in the record shows Littlejohn was ordained as a minister by the Universal Life Church to perform weddings and performed weddings and other solemn ceremonies in the Cherokee tradition. State v. Lynch, 301 N.C. at 488, 272 S.E.2d at 354. Defendant\u2019s cross assignment of error is meritorious.\nThe trial court erred in holding the parties\u2019 wedding was not properly solemnized under our statute. Because plaintiff failed to overcome the presumption of a valid marriage, we do not need to wade into the murky waters of a case-by-case, ad hoc, factual analysis under an equitable remedy of estoppel to uphold the validity of the parties\u2019 marriage. Because plaintiff failed to overcome his burden to show the plain requirements of the statute were not satisfied, it is wholly unnecessary to reach plaintiff\u2019s assignments of error, and his complaint should be dismissed.\nBy affirming the trial court\u2019s order on the basis of estoppel, the majority effectively validates common law marriages in North Carolina. Our Supreme Court has held:\nA common law marriage or marriage by consent is not recognized in this State. State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979); State v. Samuel, 19 N.C. 177 (1836). Consent is just one of the essential elements of a marriage. The marriage must be acknowledged in the manner and before some person prescribed in G.S. 51-1.\nId.\nIV. Conclusion\nThe parties obtained a valid North Carolina marriage license and expressed their intent to marry in the presence of witnesses and an \u201cordained minister\u201d who was \u201cauthorized by his church\u201d in a solemn Cherokee ceremony. N.C. Gen. Stat. \u00a7\u00a7 51-1 and 51-3.2. The plain language of the statute was satisfied. The latest legislative expressions were to validate marriages performed by ordained ministers of the Universal Life Church and marriages performed in the Cherokee tradition. Id.\nBecause plaintiff failed to overcome his \u201cheavy burden\u201d to annul his marriage, the trial court\u2019s order ruling the parties\u2019 ceremony was not legally solemnized should be reversed, and plaintiff\u2019s complaint should be dismissed. Jackson, 59 N.C. at 143. In light of this error, it is unnecessary to, and we should not, reach plaintiff\u2019s assignments of error. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Hatch, Little & Bunn, L.L.P, by Elizabeth T. Martin, for plaintiff-appellant.", "Walker & Bullard, P.A., by Daniel S. Bullard and James F. Walker, for defendant-appellee." ], "corrections": "", "head_matter": "CARL GLENN PICKARD, JR., Plaintiff v. JANE EDWARDS PICKARD, Defendant\nNo. COA05-426\n(Filed 21 February 2006)\n1. Pleadings\u2014 amendment of answer \u2014 res judicata and estop-pel added \u2014 no prejudice\nThe trial court did not abuse its discretion by permitting defendant to amend her answer to a marriage annulment action to include the' defenses of estoppel, collateral estoppel, and res judicata. Allowance of the amendment did not prejudice plaintiff\u2019s ability to present evidence related to the additional defenses.\n2. Marriage\u2014 annulment \u2014 judicial estoppel\nThe trial court correctly concluded that judicial estoppel applies and correctly refused to annul a marriage performed by a Cherokee shaman who was also an ordained minister in the Universal Life Church, even though the marriage was not properly solemnized pursuant to statute. The court had accepted plaintiff\u2019s assertion that he was married to defendant when he adopted defendant\u2019s daughter, and plaintiff\u2019s inconsistent position would impose an unfair detriment on defendant.\nJudge Tyson dissenting.\nAppeal by plaintiff from judgment entered 27 September 2004 by Judge Mark E. Galloway in the District Court in Caswell County. Heard in the Court of Appeals 17 November 2005.\nHatch, Little & Bunn, L.L.P, by Elizabeth T. Martin, for plaintiff-appellant.\nWalker & Bullard, P.A., by Daniel S. Bullard and James F. Walker, for defendant-appellee." }, "file_name": "0193-01", "first_page_order": 225, "last_page_order": 237 }