{
  "id": 8524905,
  "name": "ROBERT HEISER v. RUBY PLESS HEISER",
  "name_abbreviation": "Heiser v. Heiser",
  "decision_date": "1984-11-06",
  "docket_number": "No. 8328DC1269",
  "first_page": "223",
  "last_page": "225",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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          "parenthetical": "since plaintiff-husband can rely upon the prior divorce decree, sounder view is to require him to do so rather than permit him to attack it at his election, depending on the fortunes or misfortunes of the marriage"
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          "parenthetical": "since plaintiff-husband can rely upon the prior divorce decree, sounder view is to require him to do so rather than permit him to attack it at his election, depending on the fortunes or misfortunes of the marriage"
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      "cite": "267 S.E. 2d 516",
      "category": "reporters:state_regional",
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      "year": 1980,
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          "page": "517"
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    {
      "cite": "47 N.C. App. 495",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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      "year": 1980,
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          "page": "497"
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  "analysis": {
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    "word_count": 638
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  "last_updated": "2023-07-14T17:51:06.115640+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge VAUGHN and Judge JOHNSON concur."
    ],
    "parties": [
      "ROBERT HEISER v. RUBY PLESS HEISER"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nI.\nThe complaint prays that plaintiff-husband be granted an annulment of his \u201cpurported marriage\u201d to defendant-wife on the following grounds: Plaintiff-husband and defendant-wife entered into a ceremony of marriage on 12 July 1974. Plaintiff-husband entered the marriage in good faith and without notice or knowledge that defendant-wife had obtained a fraudulent divorce from her prior husband. Defendant-wife obtained the prior divorce by fraud in that she represented that her then husband resided in Buncombe County, the venue of that action, when in fact to her knowledge he resided in Haywood County. The Buncombe County court relied upon defendant-wife\u2019s false representation and was induced to assert jurisdiction over her then husband upon service by publication, when in fact the court could not obtain service by publication under the true facts and circumstances. Defendant-wife thus was still married to her prior husband when she purported to marry plaintiff-husband. Plaintiff-husband therefore is entitled to an annulment of the purported marriage under G.S. 51-3, which provides that a marriage between persons either of whom has a husband or wife living at the time is void.\nDefendant-wife pled as a defense that \u201c[t]his is an action to set aside a divorce and is not brought by the parties to said divorce and, therefore, does not state a claim upon which relief should be granted and should be dismissed. . . .\u201d The trial court found that \u201cthe divorce judgment entered [in defendant-wife\u2019s Buncombe County action against her prior husband] ... is in all aspects regular on its face; that this is an action brought not by the parties to said . . . action and that therefore this case should be dismissed. . . .\u201d\nFrom a judgment dismissing the claim, plaintiff-husband appeals.\nII.\nPlaintiff-husband did not except to the finding that the divorce judgment in defendant-wife\u2019s prior action against her former husband was in all respects regular on its face. He does not contend nor does the record indicate that the judgment on its face was irregular in any respect. He thus \u201cdoes not have standing to attack collaterally the divorce decree . . . because he is a stranger to [it] who is not prejudiced as to some pre-existing right by [it].\u201d Maxwell v. Woods, 47 N.C. App. 495, 497, 267 S.E. 2d 516, 517, disc. rev. denied, 301 N.C. 236, 283 S.E. 2d 132 (1980). See also Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617 (1956) (since plaintiff-husband can rely upon the prior divorce decree, sounder view is to require him to do so rather than permit him to attack it at his election, depending on the fortunes or misfortunes of the marriage); 46 Am. Jur. 2d, Judgments \u00a7 663, p. 819 (\u201ca collateral attack may not be made upon a judgment where the absence of jurisdiction does not appear upon the record\u201d); 1 Lee, North Carolina Family Law \u00a7 92 (4th ed. 1979).\nPursuant to the foregoing authorities the trial court ruled correctly; the judgment accordingly is\nAffirmed.\nChief Judge VAUGHN and Judge JOHNSON concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Holt, Haire & Bridgets, P.A., by Ben Oshel Bridgets, for plaintiff appellant.",
      "Riddle, Shackelford & Hyler, P.A., by John E. Shackelford, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "ROBERT HEISER v. RUBY PLESS HEISER\nNo. 8328DC1269\n(Filed 6 November 1984)\nDivorce and Alimony \u00a7 29\u2014 divorce judgment regular on its face \u2014standing of third party to attack\nPlaintiffs action for annulment based on allegations that defendant\u2019s divorce from her husband was fraudulently obtained was properly dismissed where plaintiff did not contend and the record did not indicate that the divorce judgment on its face was irregular in any respect. Plaintiff therefore lacked standing to collaterally attack the judgment.\nAppeal by plaintiff from Fowler, Judge. Judgment entered 25 October 1983 in District Court, BUNCOMBE County. Heard in the Court of Appeals 24 September 1984.\nPlaintiff-husband appeals from a judgment dismissing his action for annulment of his marriage to defendant-wife.\nHolt, Haire & Bridgets, P.A., by Ben Oshel Bridgets, for plaintiff appellant.\nRiddle, Shackelford & Hyler, P.A., by John E. Shackelford, for defendant appellee."
  },
  "file_name": "0223-01",
  "first_page_order": 257,
  "last_page_order": 259
}