               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-85

                              Filed: 15 November 2016

Martin County, No. 00 CVD 177

FLORENCE BAILEY HINTON, Plaintiff,

              v.

WILLIE GEORGE HINTON II, Defendant.


        Appeal by movants from order entered 17 November 2015 by Judge Darrell B.

Cayton, Jr. in Martin County District Court. Heard in the Court of Appeals 8 June

2016.


        The Jones Law Group, PLLC, by Jacinta D. Jones and Maria E. Bruner, for
        plaintiff-appellee.

        Trimpi & Nash LLP, by John G. Trimpi, for movants-appellants.


        DAVIS, Judge.


        This appeal arises from a divorce judgment that incorrectly listed the name of

the couple’s son instead of the name of the husband. Because of this error, the divorce

judgment was set aside fifteen years later. Bryon A. Long, Nyesha H. Riddick, and

Darvin A. Felton (collectively “Movants”) — who are all children of the husband —

subsequently sought to intervene in the proceedings and have the order setting aside

the divorce judgment vacated. Movants appeal from the trial court’s 17 November
                                 HINTON V. HINTON

                                  Opinion of the Court



2015 order denying their motion to intervene. After careful review, we vacate the

order in part and remand for further proceedings.

                               Factual Background

      Florence Bailey Hinton (“Mrs. Hinton”) and Willie George Hinton, Sr. (“Mr.

Hinton”) were married in August 1974, and two children were born of the marriage:

Raronzee J. Hinton and Willie George Hinton, II (“Willie”). The couple separated in

August 1998, and Mrs. Hinton filed a complaint for divorce in Martin County District

Court on 12 April 2000. In the caption of the complaint and on the accompanying

summons, the name of the defendant was incorrectly listed as “Willie George Hinton,

II.” In the body of the complaint, Mrs. Hinton alleged that “Plaintiff and Defendant

were married” and requested “that the bonds of matrimony heretofore existing

between the parties be dissolved and the Plaintiff be granted an absolute divorce from

the Defendant.”

      On 18 April 2000, Mr. Hinton received a copy of the summons and complaint,

and on 25 April 2000, he filed an answer to the complaint. In the caption to his

answer, Mr. Hinton listed his correct name: “Willie George Hinton, Sr.” His answer

admitted all of the allegations contained in Mrs. Hinton’s complaint. The court issued




                                         -2-
                                       HINTON V. HINTON

                                        Opinion of the Court



a divorce judgment (the “Divorce Judgment”) on 12 May 2000 that contained the

incorrect name “Winton George Hinton, II”1 as the defendant.

       Mr. Hinton died intestate on 17 May 2015 after spending three weeks in the

hospital. Although he never remarried, Mr. Hinton fathered three children outside

of his marriage to Mrs. Hinton — Bryon A. Long, Nyesha H. Riddick, and Darvin A.

Felton, who are the movants in this action. On 6 May 2015, prior to Mr. Hinton’s

death but after he entered the hospital, Mrs. Hinton filed a motion (1) to set aside the

Divorce Judgment pursuant to Rule 60(b)(4) of the North Carolina Rules of Civil

Procedure, asserting that it was void on its face due to impossibility in that it

purported to have granted her a divorce from her son rather than from her husband;

and (2) in the alternative, to correct the defendant’s name on the Divorce Judgment

pursuant to Rule 60(b)(1). On 29 May 2015, after Mr. Hinton’s death, Mrs. Hinton

amended her motion to delete the request to correct the error, leaving only the motion

to set aside the Divorce Judgment.

       On 4 June 2015, a hearing was held before the Honorable Darrell B. Cayton,

Jr. to determine whether the Divorce Judgment should be set aside. On 9 June 2015,

the trial court entered an order, stating as follows:

               1. The parties had proper notice of this hearing and are
               properly before this Court.


       1  While it is not clear from the record why the name “Winton” — rather than “Willie” —
appeared on the Divorce Judgment, the listing of the defendant’s first name as “Winton” does not form
the basis for any of the issues presented in this appeal.

                                                -3-
                                HINTON V. HINTON

                                 Opinion of the Court



            2. [Mrs. Hinton] through her former counsel intended to
            file an absolute divorce action from her husband, Willie
            George Hinton, Sr., however a Civil Summons and
            Complaint for Absolute Divorce was ultimately filed and
            served upon Defendant Willie George Hinton II. This Court
            entered a divorce judgment based upon one year’s
            separation from Willie George Hinton II on May 12, 2000.

            2. [sic] [Mrs. Hinton’s] lawful husband, Willie George
            Hinton, Sr., filed an answer in this action. Willie George
            Hinton, Sr., was not at the time of filing and has never been
            made a proper party to this action.

            3. Defendant Willie George Hinton II was not married to
            [Mrs. Hinton] but rather is the (now adult) child of [Mrs.
            Hinton] and Willie George Hinton, Sr., born of the
            marriage between [Mrs. Hinton] and Willie George Hinton,
            Sr.

            4. Neither [Mrs. Hinton] nor Willie George Hinton, Sr.,
            who died after the filing of this Motion but prior to its
            hearing, remarried following the entry of the prior divorce
            judgment.

            5. The prior judgment entered on May 12, 2000, obtains
            an absolute divorce judgment from Willie George Hinton
            II, a person to whom [Mrs. Hinton] was never married.
            Accordingly, the prior absolute divorce judgment of this
            Court is void due to impossibility.

Based on these findings, the trial court granted Mrs. Hinton’s motion and set aside

the Divorce Judgment.

      On 15 June 2015, Movants filed a motion to intervene, a motion to substitute

parties or to abate or continue, a motion to alter or amend judgment, and a motion

for a new trial. In support of these motions, Movants filed affidavits in which they



                                        -4-
                                   HINTON V. HINTON

                                   Opinion of the Court



asserted, inter alia, that (1) they had initially learned at their father’s wake that Mrs.

Hinton was seeking to correct the defendant’s name on the Divorce Judgment; (2)

they later discovered that Mrs. Hinton was instead trying to set aside the Divorce

Judgment; and (3) upon realizing her true intentions, Movants retained counsel to

prevent Mrs. Hinton from obtaining this relief.

       In their motion to intervene, Movants stated, in pertinent part, as follows:

              4. The aforesaid children of Willie G. Hinton have an
              interest as tenants in common in the real property owned
              by their father at his death and have a claim as heirs to his
              assets after the payment of claims of the estate and
              creditors. Plaintiff’s claim would undermine their
              ownership interests in the event that she had the right to
              claim a spouse's allowance or an intestate share or qualify
              as administratrix.

       On 28 August 2015, a hearing on Movants’ motions was held before Judge

Cayton. On 17 November 2015, the court entered an order containing the following

findings of fact:

              1. The parties and movants had proper notice of this
              hearing and are properly before this Court.

              2. In this action . . . [Mrs. Hinton] through her former
              counsel intended to file an absolute divorce action from her
              husband, Willie George Hinton, Sr., however a Civil
              Summons was issued in the name of Defendant Willie
              George Hinton II and a Complaint for Absolute Divorce
              was filed and validly served upon Defendant Willie George
              Hinton II.

              3. The summons and complaint were served upon
              Defendant Willie George Hinton II, the only defendant in


                                          -5-
                     HINTON V. HINTON

                     Opinion of the Court



this action. Service of process was accomplished by
Sheriff’s service by delivering said process to Robert Hinton
at 906 Raleigh Street, Elizabeth City, North Carolina.
Movants, through their various affidavits, verify that
Robert Hinton was over the age of eighteen (18) years at
that time, and that he and Willie George Hinton II resided
at that address.

4. Defendant Willie George Hinton II was not married to
[Mrs. Hinton] but rather is the (now adult) child of [Mrs.
Hinton] and Willie George Hinton, Sr., born of the
marriage between [Mrs. Hinton] and Willie George Hinton,
Sr.

5. [Mrs. Hinton’s] lawful husband, Willie George Hinton,
Sr., filed an answer in this action, admitting the allegations
in [Mrs. Hinton’s] complaint, including that [Mrs. Hinton]
was married to Willie George Hinton II.

6. This Court entered a divorce judgment based upon one
year’s separation from Willie George Hinton II May 12,
2000.

7. On May 29, 2015, [Mrs. Hinton] filed an Amended
Motion to Set Aside the prior judgment entered on May 12,
2000, following the death of Willie George Hinton, Sr.

8. On June 4, 2015, the Court held a hearing upon [Mrs.
Hinton’s] motion. The Defendant, Willie George Hinton, II,
was properly served and present for said hearing. Finding
that an absolute divorce judgment from Willie George
Hinton II, a person to whom [Mrs. Hinton] was never
married, is void ab initio due to impossibility, this Court
entered an order on June 9, 2015, setting aside the May 12,
2000 divorce judgment after reviewing the record,
considering the arguments of counsel and receiving no
objection from the Defendant Willie George Hinton II.

9. No summons or amended summons was issued in the
name of Willie George Hinton, Sr. or served upon Willie


                            -6-
                                  HINTON V. HINTON

                                  Opinion of the Court



             George Hinton, Sr., extending the Court’s jurisdiction over
             Willie George Hinton, Sr., personally. Nothing in the
             record establishes any defect in service as to Willie George
             Hinton, Sr[.]

             10. No amendment of [Mrs. Hinton’s] complaint, or issue
             of fact raised in the answer filed by Willie George Hinton,
             Sr., established that [Mrs. Hinton] was married to Willie
             George Hinton, Sr., rather than Defendant Willie George
             Hinton, II. Nothing provided the Court with subject matter
             jurisdiction over the marriage between [Mrs. Hinton] and
             Willie George Hinton, Sr.

             11. While the names of Willie George Hinton II and Willie
             George Hinton, Sr., are similar, Defendant Willie George
             Hinton II and Willie George Hinton, Sr., are distinct and
             separate individuals. Nothing in the record establishes
             that the summons or [Mrs. Hinton’s] complaint contains a
             misnomer or misdescription as to the identity of the party
             intended to be sued.

             12. Willie George Hinton, Sr., is not, and has never been,
             a party to this action entitled to notice and an opportunity
             to be heard.

             13. Amending the identity of the Defendant from the
             named Defendant Willie George Hinton II to Willie George
             Hinton, Sr., amounts to an improper substitution or entire
             change of parties.

             14. Movants, who are the heirs of Willie George Hinton,
             Sr., have no interest in this action as their ancestor, Willie
             George Hinton, Sr. is not, and has never been, a party to
             this action.

      Based on these findings of fact, the trial court made the following pertinent

conclusions of law:

             3. Willie George Hinton, Sr., has never been a party to this


                                         -7-
                                   HINTON V. HINTON

                                   Opinion of the Court



             action.

             4. No substitution of a party to represent the interests of
             Willie George Hinton, Sr., in this action following his death
             is necessary or proper.

             5. No alteration, amendment or modification of the prior
             order entered on June 9, 2015 to correct the name of the
             Defendant is necessary or proper.

             6. No new trial is necessary or proper in that Willie George
             Hinton, Sr., nor his heirs or anyone purporting to represent
             his interests, are parties entitled to notice and an
             opportunity to be heard.

             7. This Court’s prior order, entered on June 9, 2015 upon
             the Court’s own review of the record and consideration of
             the arguments of counsel, without objection from either the
             Plaintiff or the Defendant, was properly entered and is
             affirmed.

      Based on these conclusions of law, the trial court ordered the following:

             1. The Motion to Intervene, Motion to Alter or Amend
             Judgment, Motion for New Trial, and Motion to Substitute
             Parties or to Abate or Continue are denied.

             2. The prior order of this Court entered June 9, 2015 is
             affirmed in that the divorce judgment entered May 12,
             2000 is set aside.

      On 11 December 2015, Movants filed a written notice of appeal.

                                       Analysis

      Movants seek review from this Court over the trial court’s 9 June and 17

November 2015 orders in their entirety. However, because Movants are not currently

parties to this action, the only issue they are entitled to raise in the present appeal is


                                          -8-
                                  HINTON V. HINTON

                                   Opinion of the Court



whether the trial court erred in the portion of its 17 November 2015 order denying

their motion to intervene.

      Motions to intervene are governed by Rule 24 of the North Carolina Rules of

Civil Procedure, which states, in pertinent part, as follows:

             (a) Intervention of right. — Upon timely application
             anyone shall be permitted to intervene in an action:

                    (1) When a statute confers an unconditional right to
                    intervene; or

                    (2) When the applicant claims an interest relating
                    to the property or transaction which is the subject of
                    the action and he is so situated that the disposition
                    of the action may as a practical matter impair or
                    impede his ability to protect that interest, unless the
                    applicant’s interest is adequately represented by
                    existing parties.

             (b) Permissive intervention. — Upon timely application
             anyone may be permitted to intervene in an action.

                    (1) When a statute confers a conditional right to
                    intervene; or

                    (2) When an applicant’s claim or defense and the
                    main action have a question of law or fact in
                    common. . . . In exercising its discretion the court
                    shall consider whether the intervention will unduly
                    delay or prejudice the adjudication of the rights of
                    the original parties.

N.C. Gen. Stat. § 1A-1, Rule 24 (2015).

      Movants assert that the trial court erred in failing to grant their motion to

intervene pursuant to Rule 24(a)(2). “[A] party is entitled to intervene pursuant to


                                          -9-
                                     HINTON V. HINTON

                                     Opinion of the Court



N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) in the event that he or she can demonstrate (1)

an interest relating to the property or transaction, (2) practical impairment of the

protection of that interest, and (3) inadequate representation of the interest by

existing parties.” Bailey & Assocs., Inc. v. Wilmington Bd. of Adjust., 202 N.C. App.

177, 185, 689 S.E.2d 576, 583 (2010). “This Court reviews a trial court's decision

granting or denying a motion to intervene pursuant to N.C. Gen. Stat. § 1A-1, Rule

24(a)(2), on a de novo basis.” Id.

      The sole finding in the trial court’s 17 November 2015 order expressly

addressing Movants is finding No. 14, which states: “Movants, who are the heirs of

Willie George Hinton, Sr., have no interest in this action as their ancestor, Willie

George Hinton, Sr. is not, and has never been, a party to this action.” Finding No. 12

reiterates the trial court’s conclusion that “Willie George Hinton, Sr., is not, and has

never been, a party to this action entitled to notice and an opportunity to be heard.”

      When a “finding includes a mixed question of fact and law . . . [it is] fully

reviewable by this Court.” Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 548,

356 S.E.2d 578, 586-87 (1987) (citation omitted). As explained below, we conclude

that the above-quoted findings are fatally flawed because they are premised on an

erroneous legal determination regarding Mr. Hinton’s status as a party.

      While Mrs. Hinton’s complaint for divorce incorrectly listed Willie — as

opposed to Mr. Hinton — as the defendant, Mr. Hinton filed an answer to the



                                            - 10 -
                                 HINTON V. HINTON

                                 Opinion of the Court



complaint thirteen days after the complaint was filed. His handwritten answer

stated as follows:

             State of North Carolina             File No. 00CVD 177

             Martin County

             Name of Defendant:
             Willie George Hinton, Sr.
             Address:
             906 Raleigh St.
             City State Zip Code
             Elizabeth City, N.C. 27909

             To Each of The Plaintiff(s) Named Below:

             Florence Bailey Hinton
             906 Hunter St.
             Elizabeth City, N.C. 27909

             Defendant answers complaint of Plaintiff says [sic]:

             That Defendan[t] admits to all of the complaints from 1
             Thru [sic] 5 are true.

             Wherefore, the defendant answers the Plaintiff’s prayers
             that the bonds of Matrimony heretofore existing between
             the parties be dissolved and the defendant be granted an
             absolute divorce from the Plaintiff.

             This the 20th day of April 2000.

             Willie George Hinton
             Defendant

      By filing this answer, Mr. Hinton expressly became a party to the action and

submitted himself to the jurisdiction of the court. See N.C. Gen. Stat § 1-75.7 (when



                                        - 11 -
                                 HINTON V. HINTON

                                 Opinion of the Court



a party “makes a general appearance in an action[,]” the court has personal

jurisdiction over him).

      Accordingly, we vacate the portion of the trial court’s 17 November 2015 order

denying Movants’ motion to intervene and remand this matter to the trial court for

reconsideration of the motion under Rule 24. See Anderson v. Seascape at Holden

Plantation, LLC, 232 N.C. App. 3, 10, 753 S.E.2d 691, 698 (2014) (“Therefore, we

reverse the trial court’s order denying the POA’s motion to intervene and remand for

further proceedings.”)

                                    Conclusion

      For the reasons stated above, we vacate the portion of the trial court’s 17

November 2015 order denying Movants’ motion to intervene and remand for further

proceedings not inconsistent with this opinion.

      VACATED IN PART AND REMANDED.

      Judges ELMORE and Judge DIETZ concur.




                                        - 12 -
