{ "id": 4348201, "name": "JUMA MUSSA, Plaintiff v. NIKKI PALMER-MUSSA, Defendant", "name_abbreviation": "Mussa v. Palmer-Mussa", "decision_date": "2011-12-06", "docket_number": "No. COA11-209", "first_page": "339", "last_page": "345", "citations": [ { "type": "official", "cite": "217 N.C. App. 339" } ], "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": "146 S.E. 864", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "196 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628961 ], "year": 1929, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/196/0697-01" ] }, { "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", "weight": 10, "year": 1980, "pin_cites": [ { "page": "353-54" }, { "page": "349" }, { "page": "480-81" }, { "page": "350" }, { "page": "488" }, { "page": "354-55" }, { "page": "486" }, { "page": "353" } ], "opinion_index": 0 }, { "cite": "301 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567995 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "486-87" }, { "page": "479" } ], "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.", "opinion_index": 0 }, { "cite": "326 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "358" }, { "page": "358" }, { "page": "357", "parenthetical": "divorce is a creature of statute" } ], "opinion_index": 0 }, { "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": "386-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0382-01" ] }, { "cite": "84 S.E. 703", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "168 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660287 ], "year": 1915, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0411-01" ] }, { "cite": "166 S.E. 591", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "year": 1932, "pin_cites": [ { "page": "593" }, { "page": "593" }, { "page": "593" } ], "opinion_index": 0 }, { "cite": "203 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614976 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "536" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0533-01" ] }, { "cite": "426 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524752 ], "year": 1993, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0163-01" ] }, { "cite": "697 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "375", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 51-3", "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", "weight": 6, "year": 1945, "pin_cites": [ { "page": "876", "parenthetical": "citation omitted" }, { "page": "876-77" }, { "page": "876" }, { "parenthetical": "citation omitted" } ], "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", "year": 1980, "pin_cites": [ { "page": "354", "parenthetical": "\"Whether defendant is married in the eyes of God, of himself or of any ecclesiastical body is not our concern. Our concern is whether the marriage is one the State recognizes.\"" } ], "opinion_index": 1 }, { "cite": "301 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567995 ], "year": 1980, "pin_cites": [ { "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.", "opinion_index": 1 } ], "analysis": { "cardinality": 606, "char_count": 14410, "ocr_confidence": 0.756, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3471719779801834 }, "sha256": "6da097301060f22981a1c504c7f0a9ddf4eac20794c5bb2dfdb9fcc049243ce7", "simhash": "1:bb1a474239eccf74", "word_count": 2330 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN concurs.", "Judge BRYANT dissents in a separate opinion." ], "parties": [ "JUMA MUSSA, Plaintiff v. NIKKI PALMER-MUSSA, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nJuma Mussa (\u201cplaintiff\u2019) appeals from an order dismissing plaintiff\u2019s complaint for annulment. We reverse and remand.\nI. Background\nOn 27 November 1997, plaintiff and Nikki Palmer-Mussa (\u201cdefendant\u201d) were married in Raleigh, North Carolina. The parties separated on 3 February 2009. The parties had three children together.\nEarlier in 1997, defendant participated in a wedding ceremony with Khalil Braswell (\u201cMr. Braswell\u201d). At the ceremony, defendant and Mr. Braswell consented to become husband and wife. Neither defendant nor Mr. Braswell obtained a marriage license, as they only sought to comply with Islamic marriage requirements. After the ceremony, the couple lived together in Maryland, but the marriage was never consummated.\nDefendant divorced Mr. Braswell in the manner required by Islamic law by returning the dowry and declaring that she was divorced from her husband. At the time this took place, defendant believed she was divorced since the marriage was entered into under Islamic law and ended under Islamic law. However, defendant never sought a judicial divorce or annulment and Mr. Braswell was still alive.\nAfter returning to North Carolina, defendant met plaintiff. Shortly after meeting, the parties decided to marry and remained married for twelve years. During the marriage, the parties purchased property as husband and wife, filed joint tax returns and defendant was listed as plaintiffs wife on his insurance policy.\nOn 4 December 2008, defendant filed a complaint for divorce from bed and board, in another action. As a result of those proceedings, the court granted defendant child support, post-separation support and attorney\u2019s fees. On 3 December 2009, plaintiff filed a complaint for annulment based on bigamy. Plaintiff alleged his marriage to defendant was void ab initio, pursuant to N.C. Gen. Stat. \u00a7 51-3, as defendant had been married to Mr. Braswell earlier in 1997, had never obtained an annulment or divorce from Mr. Braswell and Mr. Braswell was still living. On 2 February 2010, defendant filed an answer, affirmative defenses, motions to dismiss and a motion for attorney\u2019s fees.\nAt a trial on the matter, there was a dispute regarding the timing of defendant\u2019s disclosure regarding her previous marriage. Defendant stated she disclosed her previous marriage prior to their marriage, but plaintiff claimed he learned of the previous marriage after he and defendant married. The court entered an order on 27 July 2010 granting defendant\u2019s motion to dismiss plaintiff\u2019s claim for annulment. Defendant\u2019s request for attorney\u2019s fees was preserved for future determination.\nII. Standard of Review\nThe proper standard of review for an involuntary dismissal is \u201c(1) whether the findings of fact by the trial court are supported by competent evidence, and (2) whether the findings of fact support the trial court's conclusions of law and its judgment.\u201d Woodridge Homes Ltd. Partnership v. Gregory, _ N.C. App. __, 697 S.E.2d 370, 375 (2010) (citations omitted). The trial judge\u2019s \u201cfindings of fact are conclusive on appeal if supported by competent evidence\u201d but the \u201ctrial court\u2019s conclusions of law are reviewable de novo on appeal.\u201d Riley v. Ken Wilson Ford, Inc., 109 N.C. App. 163, 168, 426 S.E.2d 717, 720 (1993).\nIII. Bisamv\nPlaintiff argues that the trial court erred by granting defendant\u2019s motion to dismiss. We agree.\nPlaintiff contends that the first marriage was merely voidable, and since the previous marriage with Mr. Braswell had not been annulled nor was there a divorce judgment, defendant was still married to Mr. Braswell when she married plaintiff, therefore, the marriage between plaintiff and defendant was void. The dispositive issue is whether the defendant\u2019s first marriage was void ab initio or merely voidable because of the status of the person who performed the ceremony. Mr. Braswell\u2019s friend, Kareem, who performed the ceremony, was not an imam, an Islamic religious leader. His primary profession was construction. He was not even a member of the church staff or employed by the church.\nThe law recognizes a distinction between void and voidable marriages. Pridgen v. Pridgen, 203 N.C. 533, 536, 166 S.E. 591, 593 (1932). \u201c[A] void marriage is a nullity and may be impeached at any time.\u201d Id. at 537, 166 S.E. at 593. However, \u201c[a] voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding.\u201d Id. It is a long-standing rule in North Carolina that the only marriage that is absolutely void is a bigamous marriage. Watters v. Watters, 168 N.C. 411, 412, 84 S.E. 703, 704 (1915); Fulton v. Vickery, 73 N.C. App. 382, 387, 326 S.E.2d 354, 358 (1985).\nWhen defendant married Mr. Braswell in 1997, the 1977 version of N.C. Gen. Stat. \u00a7 51-1 was in effect which stated:\nThe consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, and in the presence of an ordained minister of any religious denomination, minister authorized by his church, or of a magistrate, and the consequent declaration by such minister or officer that such persons are husband and wife, shall be a valid and sufficient marriage.\nState v. Lynch, 301 N.C. 479, 486-87, 272 S.E.2d 349, 353-54 (1980). In her answer, defendant admitted that both she and Mr. Braswell participated in a ceremony, consented to take each other as husband and wife, and that each had \u201cplainly expressed his or her consent freely and seriously in the presence of the other.\u201d \u201cUpon 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).\nThe trial court found that there was insufficient evidence to find Kareem \u201chad the status of either \u2018an ordained minister\u2019 or a \u2018minister authorized by his church\u2019 \u201d...or that \u201cKareem was a magistrate.\u201d Based on the findings, the trial court concluded as a matter of law. that because there was no marriage license and \u201cinsufficient evidence that the marriage ceremony met the requirements for a valid marriage,\u201d defendant did not marry Mr. Braswell. Since there was no marriage, the trial court reasoned, there was no need for an annulment, a divorce or the death of either party to terminate the marriage.\nWhile the evidence presented at trial supported the trial court\u2019s finding that Kareem was not authorized to conduct the marriage within the statutory requirements, the court\u2019s finding does not support its\u2019 conclusion of law that defendant and Mr. Braswell were not married. The well-established law in North Carolina confirms that only bigamous marriages are void and all other marriages are voidable. See Fulton, 73 N.C. App. at 387, 326 S.E.2d at 358. Furthermore, the Court has uniformly held \u201cthat a marriage, without a license as required by statute, is valid.\u201d Sawyer v. Slack, 196 N.C. 697, 700, 146 S.E. 864, 865 (1929). Therefore, even though defendant and Mr. Braswell did not have a marriage license and the ceremony failed to meet statutory requirements, the marriage is merely voidable.\nAs stated in Pridgen, a voidable marriage is valid until a tribunal annuls the marriage in a direct proceeding. Pridgen, 203 N.C. at 537, 166 S.E. at 593. In the instant case, defendant admitted that neither a divorce nor an annulment was granted by a court in North Carolina, or any other state, and that Mr. Braswell was still living. While defendant claimed she and Mr. Braswell were divorced according to the laws of Islam, there is no authority supporting the dissolution of a marriage by religious means that can be deemed to be \u201cthe equivalent of a judicial determination\u201d regarding the validity of a marriage. See Fulton, 73 N.C. App. at 386-87, 326 S.E.2d at 357 (divorce is a creature of statute). Therefore, at the time of defendant\u2019s marriage to plaintiff, she was still married to Mr. Braswell and thus any marriage between plaintiff and defendant was bigamous, and consequently void.\nDefendant cites to Lynch to support her argument that since her marriage to Mr. Braswell failed to meet the statutory requirements, that the marriage is invalid and her marriage to plaintiff is not bigamous. In Lynch, the defendant was charged with the crime of bigamy. Lynch, 301 N.C. at 479, 272 S.E.2d at 349. The prior marriage was performed by the bride\u2019s father who had received a certificate of ordination as minister in the Universal Life Church, Inc. Id. at 480-81, 272 S.E.2d at 350. The Court held that the State had failed to prove a prior marriage because \u201c[a] ceremony solemnized by a... layman...who bought for $10.00 a mail order certificate giving him \u2018credentials of minister\u2019. . . is not a ceremony of marriage to be recognized for purposes of a bigamy prosecution in the State of North Carolina.\u201d Id. at 488, 272 S.E.2d at 354-55.\nDespite the similarities to the instant case, in Lynch the State had the burden to prove the person performing the marriage ceremony had statutory authority beyond a reasonable doubt. See Id. at 486, 272 S.E.2d at 353; 1 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 3.8, at 146 (5th ed. 1993). By holding the State failed to meet this burden, rather than annul the marriage, the Court refused to allow the bigamy conviction to stand. Id. Therefore, the holding in Lynch does not conflict with the general rule that a voidable marriage must be annulled by a direct action. Id. Furthermore, no civil case in North Carolina dealing with the issue of bigamy has chosen to follow Lynch since it was decided in 1980. Therefore, we hold that defendant\u2019s marriage to Mr. Braswell, which is invalid for want of proper solemnization, is merely voidable until annulled in a direct action by a proper tribunal.\nIV. Conclusion\nDefendant\u2019s marriage to Mr. Braswell was voidable, but defendant never took any action to terminate the marriage. As such, the marriage was still valid when defendant married plaintiff. Therefore, the marriage between plaintiff and defendant is void.\nReversed and Remanded.\nChief Judge MARTIN concurs.\nJudge BRYANT dissents in a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "BRYANT, Judge,\ndissenting.\nBecause I do not believe that North Carolina law allows the presumption of validity conferred upon a marriage to be successfully challenged absent direct evidence, I respectfully dissent.\nI agree with the majority that the plaintiff presented insufficient evidence to support the conclusion that the marriage ceremony participated in by defendant and Braswell in early 1997 met the statutory criteria set out under N.C. Gen. Stat. \u00a7 51-1 (1997) requiring the participation of \u201can ordained minister of any religious denomination,\u201d a \u201cminister authorized by his church,\u201d or \u201ca magistrate.\u201d N.C.G.S. \u00a7 51-1 (1997). Therefore, I agree with the trial court\u2019s conclusion \u201cthere is insufficient evidence that the marriage ceremony met the requirements for a valid marriage, [thus,] the Court cannot find that D.efendant married Mr. Braswell as contemplated by the statute.\u201d See Lynch, 301 N.C. at 488, 272 S.E.2d at 354 (\u201cWhether defendant is married in the eyes of God, of himself or of any ecclesiastical body is not our concern. Our concern is whether the marriage is one the State recognizes.\u201d). However, the dispositive issue is not whether defendant\u2019s first marriage was void ab initio or merely voidable but, rather, whether plaintiff met his burden of proof establishing that defendant\u2019s first marital union was valid and remained in existence at the time defendant married plaintiff.\n\u201cUpon proof that a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage.\u201d Kearney, 225 N.C. at 163, 33 S.E.2d at 876 (citation omitted). \u201c[P]roof of the second marriage adduced by the defendant, if sufficient to establish it before the jury, raises a presumption of its validity, upon which property rights growing out of its validity may be based.\u201d Id. at 163-64, 33 S.E.2d at 876-77. \u201c[W]hen the plaintiff attempts to assert a property right which is dependent upon the invalidity of a marriage, he must, as the attacking party, make good his cause by proof.\u201d Id. at 163, 33 S.E.2d at 876. \u201cThe laws of evidence do not recognize a presumption on a presumption. The facts upon which a presumption is based must be proved by direct evidence.\u201d Id. (citation omitted).\nHere, the record establishes that plaintiff and defendant were married on 27 November 1997. A marriage license was obtained, and the validity of the marriage ceremony is uncontested. Three children were produced from the union.\nBecause the validity of the current marriage was not raised as an issue before the trial court, North Carolina law confers upon it a presumption of validity. See id. If such a presumption is to be successfully countered, it must be by direct evidence, not a presumption. See id.\nPlaintiff\u2019s direct evidence failed to establish the existence of a valid prior marriage as a result of the early 1997 ceremony. Therefore, plaintiff\u2019s claim that his marriage to defendant was void ab initio cannot prevail. Further, though perhaps not a part of plaintiff\u2019s direct evidence, the record reflects that the early 1997 Islamic marriage plaintiff alleges was valid ended in divorce in a manner recognized under Islamic law. Accordingly, I dissent.", "type": "dissent", "author": "BRYANT, Judge," } ], "attorneys": [ "Steven K. Griffith, for plaintiff-appellant.", "Nikki Palmer-Mussa, pro se, for defendant-appellee." ], "corrections": "", "head_matter": "JUMA MUSSA, Plaintiff v. NIKKI PALMER-MUSSA, Defendant\nNo. COA11-209\n(Filed 6 December 2011)\nAnnulment \u2014 motion to dismiss improperly granted\u2014 bigamy \u2014 improper solemnization \u2014 religious dissolution\u2014 voidable marriage\nThe trial court erred by dismissing plaintiffs complaint for annulment. Defendant\u2019s prior marriage to another man, which was invalid for want of proper solemnization, was merely voidable until annulled in a direct action by a proper tribunal. There is no authority supporting the dissolution of a marriage by religious means that can be deemed to be the equivalent of a judicial determination regarding the validity of a marriage. Thus, any marriage between plaintiff and defendant was bigamous.\nJudge BRYANT dissenting.\nAppeal by plaintiff from order entered 27 July 2010 by Judge Christine Walczyk in Wake County District Court. Heard in the Court of Appeals 29 August 2011.\nSteven K. Griffith, for plaintiff-appellant.\nNikki Palmer-Mussa, pro se, for defendant-appellee." }, "file_name": "0339-01", "first_page_order": 349, "last_page_order": 355 }