An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-436
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


OCTAVIA SCOTT,
     Plaintiff,

      v.                                         Union County
                                                 Nos. 12 CVD 2045, 07 CVD 1844
MAURICE MURRAY,
     Defendant.


      Appeal by defendant from order entered 13 December 2012 by

Judge Hunt Gwyn in Union County District Court.                         Heard in the

Court of Appeals 26 September 2013.


      Vann Law Firm, P.A., by Christopher M. Vann, for plaintiff–
      appellee.

      Krusch & Sellers, P.A., by Rebecca K. Watts, for defendant-
      appellant.


      BRYANT, Judge.


      Where the trial court’s findings of facts do not support

its   conclusion     that   Scott    has       rebutted   the       presumption   that

Murray’s first marriage ended with a valid divorce, we reverse

the   trial    court’s    order    as     it    relates   to    the    annulment    of

Scott’s marriage for bigamy.               Likewise, we reverse the trial

court’s    order    granting      Scott    reformation         of    deeds   to   real
                                                   -2-
property on the basis of fraud.                          As it appears marital property

was acquired during Scott and Murray’s marriage, we reverse the

trial         court’s       dismissal        of    Murray’s       equitable       distribution

claim.

         On 28 March 2007, a verified complaint filed in Mecklenburg

County        District       Court      by    Maurice        Murray      raised     issues   of

custody, child support, and equitable distribution of property

acquired during the marriage between Murray and Octavia Scott1.

On   1    May       2007,    Scott   filed         an    answer    and   counterclaims       for

custody         and     support,     post-separation               support    and     alimony,

attorney fees, and equitable distribution.

         On    13     June   2007,   the          Mecklenburg      County    District    Court

entered an order pursuant to Scott’s motion and amended motion

changing venue to Union County.

         In orders filed 16 November 2007 and 25 July 2008, the

Union         County    District        Court       addressed       issues    of     permanent

custody and child support, respectively.

         Four years later, on 17 July 2012, Scott filed a complaint

in   Union       County      District        Court       seeking    an   annulment     of    the

1
  In Murray’s custody, child support, and equitable distribution
complaint filed in Mecklenburg County on 28 March 2007, the
defendant is listed as Octavia Murray; however, in subsequent
court documents and the order from which the appeal is taken,
this party is referred to as Octavia Scott.      For purposes of
consistency, we refer to Octavia Scott throughout the opinion.
                                           -3-
marriage and deed reformation.                She alleged that she purchased

two     properties       during    the     purported      marriage      and   allowed

Murray’s name on the deeds only because of his status as spouse.

      The outstanding matters were heard in Union County District

Court     during   the    term     commencing    1   October     2012    before   the

Honorable Hunt Gwyn, Judge presiding.                  On 13 December 2012, the

trial court entered an Order for Annulment, Deed Reformation,

Attorney’s Fees, and Dismissal of Equitable Distribution.2

      In its order, the trial court found that Scott and Murray

entered into a purported marriage on 13 February 2003; one child

was born of the union.            On 9 March 2007, the parties separated.

The   court   found       that    on    the   parties’    marriage      application,

Murray answered “no” to the question “have you ever been married

before”     but    during    the       hearing   before    the   District      Court,

testified that he knew the answer to be “yes.”                   Murray testified

that he answered “no” for “expediency” so that he could relocate



      2
          The 13 December 2012 order for annulment, deed
reformation, attorney’s fees, and dismissal of equitable
distribution lists two docket numbers, 12 CVD 2045 and 07 CVD
1844.   Docket number 12 CVD 2045 relates to Scott’s complaint
seeking annulment and deed reformation.   Docket number 07 CVD
1844 relates to Murray’s verified complaint seeking custody,
child support, and equitable distribution after venue in the
action was changed to Union County.    Because the 13 December
2012 order from which the appeal arises refers to Scott as
plaintiff and Murray as defendant, we will adhere to this party
designation where appropriate.
                                            -4-
from    a   halfway     house    in   Philadelphia      to       the   Union    County   /

Charlotte area.         In January 2009, Scott contacted a woman whom

she came to believe may have been previously married to Murray,

Alice Bowen.       Alice Bowen confirmed that she had been married to

Murray in the early 1980s.                  The trial court found that Scott

filed a discovery request and subsequent motion to compel Murray

to produce proof of divorce; and that Murray failed to produce a

divorce decree or other proof of divorce.3                        As to the issue of

Murray’s credibility, the trial court also found that Murray

admitted to committing tax fraud and mortgage fraud (at trial,

Murray      responded    to     questions     regarding      a    failure      to   report

income      for   tax   purposes      and    selling    a    residential        property

damaged by fire without disclosing the fire damage); that he had

been convicted under an alias; and that he was untruthful to

Scott about his criminal convictions.                  The trial court concluded

that Scott rebutted the presumption that there existed a valid

divorce between Murray and Bowden and that “there has not been a

valid entry of divorce as between [Murray] and Ms. Bowen.”                               On

these grounds, the trial court declared the marriage between

Scott and Murray annulled and void ab initio.                            Further, the

trial court concluded “[t]hat the deeds for the real properties



3
    See infra footnote 4.
                                        -5-
acquired   during      the   marriage     were    executed   because     [Scott]

relied upon and was deceived [by Murray’s] misrepresentation. .

. . [T]hus, [Scott] [was] entitled to a judgment reforming the

deeds so as to remove [Murray]’s name as a grantee.”                  The trial

court ordered that Murray execute warranty deeds transferring to

Scott his interest in two parcels of real property acquired

during the purported marriage.           The court also concluded that as

no marital property was acquired by the parties, there was no

valid   claim    for   equitable    distribution;         Murray’s    claim   for

equitable distribution was therefore dismissed.                  Scott’s request

for attorney fees was also denied.             Murray appeals.4

                       _________________________________

      On appeal, Murray raises the following issues: whether the

trial court erred in (I) determining the presumption of marriage

was   rebutted   and    annulling   the       marriage;   (II)    reforming   the

deeds to real property; and (III) dismissing Murray’s equitable

distribution claim.



4
  The trial court’s 13 December 2012 order specifically addresses
the issues raised in Union County docket numbers 12 CVD 2045 and
07 CVD 1844.     However, in response to the initial complaint
under docket number 07 CVD 1844, Scott filed an answer and
counterclaims. Scott’s counterclaims raised issues of child
custody and support, post-separation support, alimony, attorney
fees, and equitable distribution. The trial court’s 13 December
2012 order fails to address the issues of post-separation
support and alimony.
                                       -6-
                                             I

    Murray first argues the trial court erred in determining

that Scott rebutted the presumption that her marriage to Murray

was valid and in annulling the marriage.                   Specifically, Murray

argues that Scott failed to meet the burden of proof necessary

to rebut the presumption of a valid marriage and that the trial

court’s findings of fact do not support its conclusion that the

presumption of marriage was rebutted.              We agree.

    Initially, we note that Murray does not challenge the trial

court’s   findings    of    fact     but   rather     whether     those   finding

support its conclusion of law.             Thus, even presuming the lowest

standard of proof is applicable to the evidence supporting the

trial court’s findings of fact, the question before us concerns

whether   those    findings    of     fact       support    the   trial   court’s

conclusions of law.         See Mussa v. Palmer-Mussa, 366 N.C. 185,

191, 731 S.E.2d 404, 409 (2012) (In reviewing a trial court

order concluding that the plaintiff failed to meet his burden of

proof to establish that his marriage was void on grounds of

bigamy,   our     Supreme    Court    noted       that     “[a]   trial   court's

unchallenged findings of fact are presumed to be supported by

competent evidence and [are] binding on appeal.                    If the trial

court's uncontested findings of fact support its conclusions of
                                        -7-
law, we must affirm the trial court's order.”                      (citations and

quotations omitted)).

       “Upon proof that a marriage ceremony took place, it will be

presumed that it was legally performed and resulted in a valid

marriage.”      Kearney v. Thomas, 225 N.C. 156, 163, 33 S.E.2d 871,

876 (1945) (citation omitted); see also Parker v. Parker, 46

N.C.   App.   254,    256-57,    265    S.E.2d       237,   239   (1980)       (“It    is

presumed that a marriage entered into in another State is valid

under the laws of that State in the absence of contrary evidence

. . . .” (citation omitted)).            “A second or subsequent marriage

is   presumed    legal   until   the    contrary       be   proved,      and    he    who

asserts    its    illegality     must        prove    it.   In    such     case       the

presumption      of   innocence        and     morality      prevail       over       the

presumption of the continuance of the first or former marriage.”

Kearney, 225 N.C. at 164, 33 S.E.2d at 877 (citation omitted),

cited by Mussa, 366 N.C. at 190, 731 S.E.2d at 408; see also

Denson v. Grading Co., 28 N.C. App. 129, 131, 220 S.E.2d 217,

219 (1975) (“The decided weight of authority . . . is that when

two marriages of the same person are shown, the second marriage

is presumed to be valid; that such presumption is stronger than

or overcomes the presumption of the continuance of the first

marriage, so that a person who attacks a second marriage has the
                                             -8-
burden    of    producing        evidence        of    its    invalidity.         When    both

parties to the first marriage are shown to be living at the time

of the second marriage, it is presumed in favor of the second

marriage       that     the     first      was     dissolved       by     divorce.       These

presumptions      arise,        it   is     said,       because     the     law    presumes

morality and legitimacy, not immorality and bastardy.” (citation

omitted)).

    Because Scott seeks to annul her marriage to Murray based

on the allegation that Murray never divorced his first wife, the

burden of proof lies with Scott.                      See Kearney, 225 N.C. at 164,

33 S.E.2d at 877.

    In Parker, 46 N.C. App. 254, 265 S.E.2d 237, this Court

found error in a trial court’s ruling invalidating the marriage

between    the        plaintiff      and     the       defendant        despite    evidence

indicating       that     the     plaintiff        and       the   defendant       had     not

participated in a marriage ceremony following the plaintiff’s

divorce from her first husband.                    Id. at 257, 265 S.E.2d at 239.

Prior to moving to North Carolina and filing a divorce action,

the plaintiff and the defendant lived in South Carolina as wife

and husband.          During the course of their marriage, the plaintiff

discovered that her first husband failed to file divorce papers

and that she remained legally married to him.                           Under the laws of
                                             -9-
South Carolina, “[a]ll marriages contracted while either of the

parties has a former wife or husband living shall be void.”                               Id.

at 257, 265 S.E.2d at 239 (citing S.C.Code ' 20-1-80).                                    The

plaintiff filed divorce papers ending her first marriage but did

not   participate       in    a     subsequent      marriage     ceremony      with      the

defendant.      Id.     However, South Carolina law recognizes common

law marriage where the parties agree to assume the relationship

of    husband    and    wife.          Id.     at    258,   265     S.E.2d     at        240.

Furthermore, “[t]he agreement need not be express; it may be

adduced from circumstances . . . .”                      Id. (citation omitted).

The plaintiff’s unrebutted evidence indicated that she and the

defendant lived together as man and wife for six weeks in South

Carolina     following        the    plaintiff’s       divorce      from     her        first

husband.     Therefore, this Court reversed the conclusion there

was no valid marriage between the plaintiff and the defendant

and remanded the matter for further proceedings.                       Compare Ivory

v. Greer Bros., Inc., 45 N.C. App. 455, 461, 263 S.E.2d 290, 294

(1980)   (affirming          the    opinion    and    award    of    the     Industrial

Commission      which    concluded       the       plaintiff’s      marriage       to    the

decedent was a nullity where the findings of fact, supported by

competent evidence, established that the plaintiff’s marriage to
                                   -10-
the decedent occurred prior to the decedent’s divorce from his

first wife).

     In Denson, 28 N.C. App. 129, 220 S.E.2d 217, two women

claimed entitlement to receive widow benefits.                The first wife

sought to invalidate the second marriage on the basis that no

divorce decree had been filed in the first marriage.              The Court,

acknowledging that the second marriage had been duly proven by

the record, noted that the burden of proof to invalidate the

second marriage rested with the moving spouse, there, the first

wife.   Id.    at   131,    220   S.E.2d   at    219.     The    first    wife

established the existence of the first marriage and testified

that she had not divorced nor received notice of divorce from

the husband.   Id. at 131, 220 S.E.2d at 219. “There was no other

attempt to prove there had been no divorce.”              Id.     This Court

acknowledged   that   the    first    wife      failed   to    overcome   the

presumption of validity afforded her husband’s second marriage.

“The mere proof that one party had not obtained a divorce is not

sufficient to overcome the presumption, since the other party

might have obtained a divorce.” Id.

     In Hendrix v. DeWitt, Inc., 19 N.C. App. 327, 198 S.E.2d

748 (1973), a matter appealed to this Court from our Industrial

Commission, we considered whether the fifth wife of a decedent
                                   -11-
met her burden of proof to establish that her marriage never

ended in divorce and thus, the decedent’s marriage to his sixth

wife was void for bigamy.         The record on appeal reflected that

the decedent had been employed as a long-haul truck driver who

spent substantial periods of time outside of North Carolina.

The attorney for the decedent’s employer and the attorney for

the sixth wife stipulated that no one was able to find any

record of a divorce in Randolph County, where the hearing was

conducted.       “In   our   opinion   the   stipulation     does    not,   as

appellant    contends,   compel    the    finding   that    the     subsequent

marriage to [the sixth wife] was invalid.”                 Id. at 332, 198

S.E.2d at 751.

    In the instant case, the trial court made the following

pertinent, unchallenged findings of fact:

            2.    That [Scott] and [Murray] entered into
                  a purported marriage on or about the
                  13th   day    of  February   2003   in
                  Pennsylvania.

            . . .

            5.    That    on   the    parties’   marriage
                  application, [Murray] answered no to
                  the question have you ever been married
                  before and that [Scott] relied upon
                  [Murray’s] answer.

            . . .
                               -12-
         7.    That [Murray] testified that his answer
               no to a question that he knew the
               answer   to    was   yes   was   done  for
               “expediency” and some perceived urgency
               so that he could relocate from a
               halfway house in Philadelphia to the
               Union    County/Charlotte      area,   but
               despite   the    testimony   as   to  that
               urgency,      [Murray]      remained    in
               Pennsylvania for several months.

         8.    That in January 2009, [Scott] became
               suspicious   as   to whether  or   not
               [Murray] had in fact been married to
               anyone else . . . . [Scott] learned
               that in fact [Murray] had been married
               in the early 1980’s to a woman by the
               name of Alice Bowen.

         9.    That   as   a   result   of  [Scott’s]
               suspicions that there was a marriage
               that predated her own, she filed a
               discovery   request    that  requested
               [Murray] to produce proof of a divorce
               decree.5

         10.   [Murray]   never   complied   with   that
               discovery request.

         11.   [Scott] had to file a motion to compel,
               however,   [Murray]    never    responded
               satisfactorily to [Scott’s] motion to
               compel.   This    court    never    heard
               [Scott’s] motion to compel as to that
               issue.

         . . .

5
  Notwithstanding the trial court’s finding of fact, discovery
documents in the record reveal Scott’s discovery request was for
financial information only and contained no discovery request
for proof of divorce.   It appears that in making this finding,
the trial court relied solely on Scott’s testimony given during
the 1 October 2012 hearing.
                                     -13-


            13.     Both parties searched for a divorce
                    decree   in    Onslow  County,  North
                    Carolina. No divorce decree was found
                    in Onslow County. [Murray] suggested
                    that the Onslow County Clerk’s office
                    now has no record of such a divorce
                    because it was destroyed by either a
                    flood or a fire.

            14.     That [Murray], despite having roughly
                    ten months to do so, has searched no
                    other counties for a copy of the
                    divorce decree. He has presented no
                    evidence of any divorce decree being
                    obtained to Ms. Bowen nor any other
                    proof of such a divorce ever occurring.

            . . .

            16.     That    [Scott]   has    rebutted  the
                    presumption that there is a valid
                    divorce between [Murray] and Ms. Bowen
                    and finds that there has not been a
                    valid entry of a divorce decree as
                    between [Murray] and Ms. Bowen.6

    The     trial    court’s   unchallenged     finding     that   Scott   and

Murray entered into a purported marriage on 13 February 2003 in

Pennsylvania      confers   upon    their    marriage   a   presumption     of

validity.    See Mussa, 366 N.C. at 193, 731 S.E.2d at 410 (“[T]he

district court found that in prior proceedings it had concluded

that [the] plaintiff and           [the]   defendant were married on 27



6
  We note the absence of any finding by the trial court regarding
Murray’s unnumbered exhibit, an affidavit by Alice Bowen
(currently, Alice Scrantz) stating that she and Murray divorced
in 1983.
                                       -14-
November    1997.    Plaintiff      does      not   challenge       this    finding;

therefore, it is binding on appeal.”); see also Denson, 28 N.C.

App. at 131, 220 S.E.2d at 219.

    The trial court found that “[b]oth parties searched for a

divorce    decree    in   Onslow    County,     North    Carolina.     No   divorce

decree was found in Onslow County.”                 We further note the trial

court’s    finding   “[t]hat    [Murray],       despite    having     roughly     ten

months to do so, has searched no other counties for a copy of

the divorce decree. He has presented no evidence of any divorce

decree being obtained to Ms. Bowen nor any other proof of such a

divorce ever occurring.”           These findings, which place the burden

of proof on Murray, indicate the trial court’s belief that Scott

met the minimum criteria to support a finding that no divorce

decree    was   entered    in   Murray’s      first     marriage.      We    do   not

believe the trial court’s findings of fact support this belief.

    This Court’s holding in             Hendrix, 19 N.C. App. 327, 198

S.E.2d 748, informs us that the inability to produce a divorce

decree after a records search in one county is insufficient to

support a finding that no divorce decree was entered and thus,

insufficient to rebut the presumption of validity afforded a

subsequent marriage.        See id. at 331-32, 198 S.E.2d at 751.                  On

this point, the evidence presented before the trial court was
                                   -15-
that   Murray   married    Bowen   in   1981   while   both   were   Marines

stationed at Camp LeJune, in Onslow County, and that Bowen was

transferred to another base prior to any communication regarding

a divorce proceeding.       Murray testified that he did not know to

what base Bowen was transferred.          Even if the standard of proof

required   under   these    circumstances      is   preponderance    of   the

evidence, the trial court’s finding that no divorce decree was

found upon a records search in Onslow County fails to support

the conclusion “[t]hat [Scott] has rebutted the presumption that

there is a valid divorce between [Murray] and Ms. Bowen and . .

. that there has not been a valid entry of a divorce decree as

between [Murray] and Ms. Bowen.”         See id.

       As there are no other findings that would support grounds

for rebutting the presumption of validity afforded the marriage

of Scott and Murray, the trial court erred in concluding that

the presumption of validity has been rebutted.           Accordingly, the

order granting the annulment of the marriage of Scott and Murray

is reversed.

                                         II

       Murray argues that the trial court erred in reforming the

deeds to real property.      We agree.
                                          -16-
      “An action to reform an instrument usually arises in cases

in which there has been mutual mistake of the parties or mistake

by one of the parties and fraud by the other.                  All the essential

elements for reformation must be proved by clear, strong, and

convincing evidence.”            Dorsey v. Dorsey, 306 N.C. 545, 547, 293

S.E.2d 777, 779 (1982) (citations omitted) (considering whether

the plaintiff made a prima facie case for reformation of a deed

to   real    property     held    as   tenants    by   the    entirety    where    he

alleged that his wife’s previous marriage had ended with the

filing      of    a   divorce    decree    following    her    marriage    to     the

plaintiff).

                 While fraud has no all-embracing definition
                 and is better left undefined lest crafty men
                 find a way of committing fraud which avoids
                 the definition, the following essential
                 elements   of  actionable   fraud  are  well
                 established: (1) False representation or
                 concealment   of   a   material   fact,  (2)
                 reasonably calculated to deceive, (3) made
                 with intent to deceive, (4) which does in
                 fact deceive, (5) resulting in damage to the
                 injured party.

Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559,

568-69, 374 S.E.2d 385, 391 (1988) (citation omitted).

      In    pertinent     part,    the    trial   court      made   the   following

unchallenged findings of fact:

                 17. That on the 24th day of October, 2003
                 [Scott] purchased realty located at 3900
                                 -17-
          Courtland Drive, Charlotte, NC 28212 and on
          the 24th day of June 2005 [Scott] also
          purchased realty located at 3323 Sandalwood
          Drive, Waxhaw, NC 28173.

          18. That the deed to said properties are
          titled to [Scott] and [Murray].

          19. That [Scott] did not want [Murray’s]
          name on the deed to the property located at
          3900 Courtland Drive, Charlotte NC 28212
          because [Murray] had contributed no monies
          towards the purchase of said property.
          However, [Scott] testified that she was
          advised by her attorney, at the time, that
          because [Murray] was her spouse, it was
          necessary to put his name on the deed.

          20. That [Murray] intended to deceive and
          influence the acts of [Scott].

          21. That [Scott] relied upon [Murray’s]
          misrepresentation and was actually deceived
          as evidenced by the fact that she had him
          named as her spouse, a tenant by the
          entirety of the residential realties.

    The trial court stated the following conclusion:

          3.   That the deeds for the real properties
          acquired during the marriage were executed
          because [Scott] relied upon and was deceived
          [by] [Murray’s] misrepresentation. [Murray]
          intended to deceive and influence the acts
          of [Scott]; and thus, [Scott] is entitled to
          a judgment reforming the deeds so as to
          remove [Murray’s] name as a grantee.

    The   trial   court’s   conclusion   that   Scott   is   entitled   to

reformation of the deeds to the real property she purchased

appears to be predicated solely on the trial court’s conclusion
                                            -18-
that    Murray      intended    to    deceive       Scott     as    to    his    status       as

Scott’s spouse, where Murray remained legally married to a prior

spouse.       However, as discussed in issue I, Scott has not met the

burden of proof to rebut the presumption of validity afforded

her marriage to Murray.              Therefore, the trial court’s findings

of fact indicating that Murray deceived and influenced Scott by

representing himself as her spouse are unsupported.                                 As this

appears to be the sole basis for the trial court’s conclusion

that   Scott     is    entitled      to   reformation         of    the   deeds    to    real

property purchased during the course of her marriage to Murray

and    held    as   tenants    by     the    entirety,        we    reverse      the    trial

court’s order as to reformation of the deeds.

                                                 III

       Lastly,      Murray    argues      that     the      trial   court       erred    as   a

matter of law in dismissing his equitable distribution claim.

We agree.

       “‘Marital property’ means all real and personal property

acquired by either spouse or both spouses during the course of

the    marriage       and   before    the    date      of    the    separation      of    the

parties, and presently owned[.]”                   N.C. Gen. Stat. § 50-20(b)(1)

(2013).
                                     -19-
      The trial court made the following pertinent, unchallenged

findings of fact:

            3.      That [Scott] and [Murray] entered into
                    a purported marriage on or about the
                    13th   day    of  February   2003   in
                    Pennsylvania.

            . . .

            17.     That on the 24th day of October, 2003
                    [Scott] purchased realty located at
                    3900 Courtland Drive, Charlotte, NC
                    28212 and on the 24th day of June 2005
                    [Scott] also purchased realty located
                    at 3323 Sandalwood Drive, Waxhaw, NC
                    28173.

            18.     That the deed to said properties are
                    titled to [Scott] and [Murray].

            . . .

            21.     That [Scott] . . . had [Murray] named
                    as her spouse, a tenant by the entirety
                    of the residential realties.

      The   trial    court   concluded      “[t]hat   no   valid   claim   for

equitable distribution exists between the parties as there was

no marital property acquired.”

      As discussed in Issue I, the trial court’s findings of fact

are insufficient to rebut the presumption of validity afforded

the   marriage    between    Scott   and    Murray.    Therefore,    as    real

property was purchased and acquired as tenants by the entirety

during the course of the marriage between Scott and Murray, it
                                       -20-
appears     at   this   stage,    that    it   was   marital   property     and

therefore,       subject    to   equitable     distribution.         See    id.

Accordingly, we reverse the trial court’s order in as much as it

dismisses    Murray’s      equitable   distribution    claim   on   the    basis

that no marital property was acquired and remand for further

proceedings.

    Reversed and remanded.



    Judges HUNTER, Robert C., and STEELMAN concur.

    Report per Rule 30(e).
