              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-515

                                Filed: 19 March 2019

Mecklenburg County, No. 17 CVD 1275

REBECCA HILL, Personal Representative of the Estate of CARLYLE HERBERT
HILL, III, Plaintiff,

             v.

LINDA DURRETT, Defendant.


      Appeal by defendant from order entered 9 November 2017 by Judge Kimberly

Best-Staton in Mecklenburg County District Court. Heard in the Court of Appeals

15 January 2019.


      The Law Office of William L. Sitton, Jr., by William L. Sitton, Jr., for plaintiff-
      appellee.

      Plumides, Romano, Johnson & Cacheris, P.C., by Richard B. Johnson, for
      defendant-appellant.


      DAVIS, Judge.


      In this appeal, we consider the validity of an order granting a party’s motion

for summary judgment on a claim to annul a marriage. Rebecca Hill (“Plaintiff”), in

her capacity as the personal representative of the estate of Carlyle Herbert Hill, III

(“Hill”), sought to annul Hill’s marriage to Linda Durrett, arguing that the marriage

was invalid because the officiant — a minister ordained by the Universal Life Church

— was not legally authorized to perform a wedding ceremony in North Carolina.
                                  HILL V. DURRETT

                                 Opinion of the Court



Because North Carolina law does not permit a judgment of annulment to be entered

by means of a summary judgment, we vacate the trial court’s order.

                     Factual and Procedural Background

      Hill and Durrett took part in a wedding ceremony on 6 June 2015. The

ceremony was officiated by Deborah Plante, who had received a Certificate of

Ministry from the Universal Life Church on 20 July 2008. The parties separated on

17 August 2016.

      One day after the separation, Hill filed a complaint in Mecklenburg County

District Court asserting claims for divorce from bed and board and equitable

distribution. The complaint alleged that the parties were married on 6 June 2015.

On 24 January 2017, however, Hill filed an amended complaint requesting an

annulment of the marriage. In this complaint, he asserted that his marriage to

Durrett was, in fact, void ab initio because Plante “is not a magistrate, an ordained

minister in a religious denomination or a minister authorized to perform weddings.”

Based on this assertion, the complaint alleged that Hill was entitled to an annulment

under North Carolina law.

      Hill died on 29 April 2017. Plaintiff was substituted as a party to the action

by means of a consent order entered by the trial court on 14 July 2017.

      On 27 September 2017, Plaintiff filed a motion captioned “Plaintiff’s Motion

For Summary Judgment.” The motion stated as follows:



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                                 Opinion of the Court



            NOW COMES PLAINTIFF, through the undersigned, who
            respectfully moves the court for an order granting an
            absolute divorce by summary judgment under Rule 56 of
            the North Carolina Rules of Civil Procedure because the
            pleadings, affidavits and exhibits of record in this action
            show that there is no genuine issue of material fact and
            plaintiff is entitled to judgment granting an annulment
            and declaring the marriage of Carlyle Herbert Hill, III and
            Linda Durrett void ab initio.

            WHEREFORE, Plaintiff respectfully requests that the
            Court enter summary judgment granting an annulment
            and grant to Plaintiff such other relief as seems just and
            proper.

      Plaintiff’s motion for summary judgment was heard before the Honorable

Kimberly Best-Staton on 26 October 2017. After hearing arguments from counsel

with regard to an evidentiary matter, the trial court asked the attorneys for both

parties whether live testimony would be received concerning the request for an

annulment. The following exchange occurred:

            [THE COURT]: Am I anticipating any type of -- I’m
            assuming I’m -- there should -- there’s going to be
            testimony. Yes?

            [DEFENSE COUNSEL]: Correct.

            [THE COURT]: All right. If I could have everyone who
            may testify, if you could stand, place your left hand on the
            Bible and raise your right.

            [PLAINTIFF’S COUNSEL]: Your Honor?

            [THE COURT]: Yes.

            [PLAINTIFF’S COUNSEL]: I just want to point out that


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                                  Opinion of the Court



             this is a motion for summary judgment.

             [THE COURT]: It is a motion for summary judgment?

             [PLAINTIFF’S COUNSEL]: Yes, it is. Yes, ma’am. And
             I’m -- I think live testimony is inappropriate, which is why
             --

             [THE COURT]: Okay.

             [PLAINTIFF’S COUNSEL]: -- we submitted --

             [THE COURT]: No. You all can argue on that. I -- I
             thought it was -- Okay, I’ve been told it was a motion for
             summary -- for a declaratory judgment. Okay. Summary
             judgment[.]

             ....

             [DEFENSE COUNSEL]: I do think that we will need some
             testimony.

             ....

             [THE COURT]: Well, let’s go ahead and get everyone
             sworn in, just in case. Okay.

      Following this exchange, the trial court swore in two witnesses.         Neither

witness, however, actually testified at the hearing. Instead, the trial court proceeded

to hear arguments from counsel and received into evidence an affidavit from Hill’s

previous attorney as well as a transcript of deposition testimony given by Plante.




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                                        Opinion of the Court



       On 9 November 2017,1 the trial court entered an order entitled “Judgment of

Annulment” that stated, in pertinent part, as follows:

               THIS MATTER having come on for hearing on October 26,
               2017 before the Honorable Kimberly Best-Staton during
               the civil non-jury session of the Mecklenburg County
               District Court on Plaintiff’s motion for summary judgment
               seeking an Annulment. . . . [T]he Court, having reviewed
               the verified pleadings, affidavits, deposition testimony of
               record, the law and heard the arguments of counsel, finds
               and concludes that there is no genuine issue of material fact
               and that Plaintiff is entitled to judgment as a matter of law.

(Emphasis added.)

       In its order, the trial court made findings of fact and conclusions of law in

support of its ruling. Durrett gave notice of appeal to this Court.

                                            Analysis

       On appeal, Durrett argues that the trial court erred by (1) granting the

annulment at the summary judgment stage in violation of the North Carolina

General Statutes; (2) admitting into evidence an affidavit from Hill’s previous

attorney; and (3) determining that Hill was not estopped from claiming his marriage

was void ab initio. Because we agree that the trial court erred in granting the

annulment on a motion for summary judgment, we need not consider the additional

arguments raised by Durrett.


       1  It appears that the trial court originally entered its order on 3 November 2017 and then —
for reasons that are not disclosed in the record — issued a subsequent order on 9 November 2017 that
was substantively identical to the order entered on 3 November. Durrett’s notice of appeal referenced
both orders. For clarity, we refer to the order being appealed as the 9 November order.

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                                       Opinion of the Court



       N.C. Gen. Stat. § 50-10 states, in pertinent part, as follows:

               (a) . . . [T]he material facts in every complaint asking for a
               divorce or for an annulment shall be deemed to be denied
               by the defendant, whether the same shall be actually
               denied by pleading or not, and no judgment shall be given
               in favor of the plaintiff in any such complaint until such
               facts have been found by a judge or jury.

               ....

               (d) The provisions of G.S. 1A-1, Rule 56, shall be applicable
               to actions for absolute divorce pursuant to G.S. 50-6, for the
               purpose of determining whether any genuine issue of
               material fact remains for trial by jury, but in the event the
               court determines that no genuine issue of material fact
               remains for trial by jury, the court must find the facts as
               provided herein. The court may enter a judgment of
               absolute divorce pursuant to the procedures set forth in
               G.S. 1A-1, Rule 56, finding all requisite facts from
               nontestimonial evidence presented by affidavit, verified
               motion or other verified pleading.

N.C. Gen. Stat. § 50-10 (2017) (emphasis added).2

       As an initial matter, neither party challenges the proposition that marriages

in North Carolina cannot be annulled at the summary judgment stage. Nor could

such an argument be successfully made. While the amended statutory language

contained in N.C. Gen. Stat. § 50-10(d) expressly allows for a judgment of absolute

divorce to be granted by a trial court on summary judgment, subsection (d) makes no

mention of annulment proceedings being similarly permitted at the summary



       2
       The prior version of N.C. Gen. Stat. § 50-10 did not include subsection (d). The statute was
amended in 1991 to include this subsection. 1991 N.C. Sess. Laws ch. 568, § 50-10.

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                                    Opinion of the Court



judgment stage.        Thus, basic principles of statutory construction mandate the

conclusion that the General Assembly intended to treat annulments differently than

absolute divorces in this respect. See Appalachian Materials, LLC v. Watauga Cty.,

__ N.C. App. __, __, 822 S.E.2d 57, 61 (2018) (“Under the expressio unius est exclusio

alterius canon of statutory construction, the expression of one thing implies the

exclusion of another.” (citation and quotation marks omitted)); see also Evans v. Diaz,

333 N.C. 774, 780, 430 S.E.2d 244, 247 (1993) (“[W]hen a statute lists the situations

to which it applies, it implies the exclusion of situations not contained in the list.”

(citation omitted)).

      Instead, Plaintiff argues that although her motion was denominated as a

motion for summary judgment, the trial court’s order nevertheless complied with the

requirements of N.C. Gen. Stat. § 50-10. This is so, she contends, because “[i]n

practice . . . the trial court conducted a bench trial[.]” We disagree.

      This Court has previously addressed similar arguments.              In Edwards v.

Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979), a case decided under the prior

version of N.C. Gen. Stat. § 50-10, the plaintiff filed a motion for summary judgment

in connection with his request for a divorce. Id. at 302, 256 S.E.2d at 729. At the

hearing on the motion, the plaintiff “testified on direct and cross-examination and

presented the testimony of a corroborating witness to prove the facts alleged in the




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                                  Opinion of the Court



complaint.” Id. Following the hearing, the trial court entered an order granting the

plaintiff’s motion for summary judgment for an absolute divorce. Id.

      On appeal, this Court observed “that a summary judgment may not be entered

granting an absolute divorce in this State” pursuant to N.C. Gen. Stat. § 50-10 and

that “if such a decree had been entered in this case, it would have been error.” Id. at

306-07, 256 S.E.2d at 731-32. Nevertheless, we held that the judgment entered by

the trial court was not, in fact, a summary judgment.

             Examination of the record reveals, however, that although
             plaintiff moved for a summary judgment and the court at
             one point seemed to indicate that it was allowing the
             motion, what actually occurred was that the court heard
             the testimony of witnesses, who were subject to cross-
             examination by defendant’s counsel, and after hearing this
             evidence and on the basis thereof, the court found the facts
             as required by G.S. 50-10. Thus, the judgment entered in
             this case was not a summary judgment but was one
             rendered by the court after making appropriate findings of
             fact.

Id. at 307, 256 S.E.2d at 732.

      In Hawkins ex rel. Thompson v. Hawkins, 192 N.C. App. 248, 664 S.E.2d 616

(2008), the trial court granted an annulment by means of a default judgment. Id. at

250, 664 S.E.2d at 617. On appeal, the defendant argued that “the trial court lacked

the authority to enter a judgment of annulment by default under N.C. Gen. Stat. § 50-

10[.]” Id. at 250, 664 S.E.2d at 618.




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                                   HILL V. DURRETT

                                   Opinion of the Court



      This Court began its analysis with the observation that “Defendant is correct

that a judgment for annulment cannot be entered by default.” Id. at 251, 664 S.E.2d

at 618. We then stated the following with regard to the trial court’s order:

             The order indicates that the trial court did hear testimony
             from witnesses, but because there is no transcript in the
             record on appeal, we are unable to determine if any of the
             testimony addressed the facts supporting the annulment.
             Even if there were such testimony, the trial court expressly
             based all of its findings relevant to the annulment upon the
             allegations of the complaint, . . . ignoring the fact that N.C.
             Gen. Stat. § 50-10(a) requires that the allegations of the
             complaint are deemed to be denied even in the absence of
             an answer.

Id. at 252, 664 S.E.2d at 619 (quotation marks omitted). We further stated that the

trial court lacked jurisdiction to grant the annulment because it “did not find from

the evidence any material facts regarding the annulment claim upon which it could

grant the relief sought by plaintiff.” Id. at 253, 664 S.E.2d at 619.

      In the present case, Plaintiff filed a motion on 27 September 2017 that was

expressly denominated “Plaintiff’s Motion for Summary Judgment.” The motion

stated that Plaintiff was entitled to summary judgment pursuant to Rule 56 of the

North Carolina Rules of Civil Procedure “because the pleadings, affidavits and

exhibits of record in this action show that there is no genuine issue of material fact

and plaintiff is entitled to judgment granting an annulment[.]” On that same date,

Plaintiff served Durrett’s counsel with a notice of hearing stating as follows:

             PLEASE TAKE NOTICE that Plaintiff will bring its


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                                   Opinion of the Court



             Motion for Summary Judgment in this matter before the
             Mecklenburg County District Court . . . on the 26th day of
             October, 2017 at 9:00 a.m., or as soon thereafter as the
             Court can hear it.

      At the 26 October 2017 hearing on Plaintiff’s motion, the trial court initially

stated its belief that the matter before it was a motion for a declaratory judgment.

Plaintiff’s counsel clarified that the matter being heard was instead a motion for

summary judgment and argued that — for this reason — live testimony would be

inappropriate. In response, the trial court acknowledged that the motion sought a

summary judgment but decided to “go ahead and get everyone sworn in, just in case.”

Neither of the two witnesses subsequently sworn in by the trial court actually

testified. Instead, the trial court heard only arguments from counsel and received

into evidence an affidavit and a deposition transcript.

      Based on our thorough review of the record, we conclude that the trial court’s

ruling was, in fact, a summary judgment and therefore was not authorized under

N.C. Gen. Stat. § 50-10. While Edwards can perhaps be viewed as a willingness by

our Court to relax the distinction between a summary judgment proceeding and a

bench trial based on the specific circumstances at issue in that case, we are unwilling

to do so in the scenario currently before us.

      Here, the request for an annulment was expressly contained in a motion for

summary judgment. Notice was given to the opposing party of an upcoming summary

judgment hearing. At the hearing, the trial court was reminded that the parties were


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                                    Opinion of the Court



present for a summary judgment motion and proceeded to acknowledge that fact. The

evidence ultimately considered by the court consisted solely of an affidavit and a

deposition transcript. Finally, the trial court’s order stated that “Plaintiff’s motion

for summary judgment seeking an [a]nnulment” was heard on 26 October 2017. The

order also contained the legal standard applicable to motions for summary judgment

by providing that “the Court . . . finds and concludes that there is no genuine issue of

material fact and that Plaintiff is entitled to judgment as a matter of law.”

         Thus, the proceedings in this case possessed virtually all of the hallmarks of

summary judgment. “To paraphrase a popular expression: if it looks like [summary

judgment], walks like [summary judgment], and quacks like [summary judgment], it

is reasonable to infer that it is [summary judgment].” State v. Maag, 3d Dist. Hancock

No. 5-03-32, 2005-Ohio-3761, 2005 WL 1712898, at *11.

         For these reasons, we conclude that the trial court’s 9 November 2017 order

was an order granting an annulment by means of summary judgment in violation of

N.C. Gen. Stat. § 50-10. Accordingly, we are compelled to vacate the trial court’s

order.

                                           ***

         We take this opportunity to remind the bench and bar that summary

judgments and trials are separate and distinct proceedings that apply in different

circumstances under our Rules of Civil Procedure, and the meaningful distinctions



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                                         Opinion of the Court



that exist between them should not be blurred. While we recognize that family law

cases under Chapter 50 often require the presiding judge to serve as the finder of fact,

the North Carolina Rules of Civil Procedure remain applicable to such cases absent

the existence of statutes establishing a different procedure.3

                                            Conclusion

        For the reasons stated above, we vacate the trial court’s 9 November 2017 order

and remand to the trial court for further proceedings not inconsistent with this

opinion.

        VACATED AND REMANDED.

        Judges BRYANT and INMAN concur.




        3 In light of our holding, we express no opinion on the substantive issues addressed in the trial
court’s order.

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