Shankle v. Shankle

216 S.E.2d 915 (1975)

26 N.C. App. 565

Jane Caroline Woodall SHANKLE v. Robert Jack SHANKLE.

No. 7515DC189.

Court of Appeals of North Carolina.

July 16, 1975.

Certiorari Denied October 7, 1975.

*918 Allen, Hudson & Wright by Katherine S. Wright, Chapel Hill, for plaintiff appellee.

Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by James M. Tatum, Jr., and Josiah S. Murray, III, Durham, for defendant appellant.

Certiorari Denied by Supreme Court October 7, 1975.

MORRIS, Judge.

In his first assignment of error defendant contends that the trial court erred in excluding certain questions asked of the plaintiff and Jill Shankle, the parties' 19-year-old daughter, concerning plaintiff's reputation as the wife of Rolland Cole. Plaintiff, on the other hand, argues that this evidence was properly excluded because: (1) it violated hearsay, opinion and firsthand knowledge rules, (2) the questions dealt with "specific acts" or a "general course of conduct" rather than "general reputation" and (3) the questions addressed to Jill Shankle did not refer to the plaintiff's reputation in the entire community or in the community where Jill Shankle lived. Reputation evidence, however, by its very nature, constitutes hearsay and opinion and is not based on a witness's firsthand knowledge; it is admissible as an exception to the hearsay rule. 5 Wigmore, Evidence 3d, § 1602, pp. 464-466; see McCormick, Evidence 2d, § 324, pp. 748-749. Furthermore, our courts have often held that evidence of a person's reputation for being married is admissible. Green v. Construction Co., 1 N.C.App. 300, 161 S.E.2d 200 (1968); Carter v. Reaves, 167 N.C. 131, 83 S.E. 248 (1914); Forbes v. Burgess, 158 N.C. 131, 73 S.E. 792 (1912); Jones v. Reddick, 79 N.C. 290 (1878); Jackson v. Rhem, 59 N.C. 141 (1860); Whitehead v. Clinch, 3 N.C. 3 (1797); Felts v. Foster, 1 N.C. 164 (1799); and evidence of "specific acts", the "declarations and conduct of the parties", and "general course of conduct" is admissible under the Green, Jones, Jackson and Felts cases. The strict rules that have developed concerning the wording of questions with respect to a person's reputation for moral character, for the purpose of impeachment or corroboration of his testimony, have not been applied to questions with respect to a person's reputation for being married. Finally, evidence of general reputation in the family and in the neighborhood in which the parties lived has long been held admissible to prove their marriage. Carter v. Reaves, supra; Green v. Construction Co., supra; and Jackson v. Rhem, supra. For the foregoing reasons, defendant's first assignment of error is sustained. It is interesting to note that plaintiff herself testified on cross-examination, without objection, that she was known generally as the wife of Rolland Cole.

Defendant next contends it was error for the trial court to grant a directed verdict to the plaintiff because evidence offered at the trial was sufficient to reach the jury on one or more of the defendant's affirmative defenses. We agree. Plaintiff correctly points out that common law marriage is not recognized in either North Carolina, Florida or Nevada. 1 Lee, N.C. Family Law, § 9, p. 35 and cases cited therein; 21A Fla.Stat.Ann. § 741.211 (1968); Nev. Rev.Stat. § 122.010 (1973). Circumstantial evidence, however, may be used to prove a ceremonial marriage in North Carolina, and direct evidence of a ceremony apparently is not required:

"By the common law . . . in civil cases, except in actions for criminal conversation. . . reputation, cohabitation, the declarations and conduct of the parties, are competent evidence of marriage between them." Jones v. Reddick, supra; accord, 1 Stansbury, N.C. Evidence 2d, § 98, pp. 313-314; 1 Lee N.C. Family Law, § 15, pp. 55-56; Jackson v. Rhem, supra; and Felts v. Foster, supra.

We conclude there was sufficient evidence to support the defendant's allegation of remarriage. *919 Therefore, it was error for the trial court to grant plaintiff's motion for a directed verdict on this issue.

The defendant next argues there has been a change in plaintiff's financial circumstances, entitling him to a reduction in the amount of alimony. Here there was some evidence to support defendant's assertion that there has been a change in the plaintiff's financial circumstances, and the separation agreement entered into by the parties clearly provides that it may be modified by the trial court. Both the separation agreement and the amended agreement were ratified, confirmed, and approved by the divorce decree and the Nevada court ordered the parties "to do each and every act required by said agreement and amendment thereto." G.S. § 50-16.9(a) provides that upon a showing of a change in circumstances the amount of alimony may be modified or vacated at any time upon motion in the cause, that is, upon a motion addressed to the trial judge. The statute does not contemplate that the jury should pass on requests for reductions in alimony because of changed circumstances. The court merely allowed plaintiff's motion for a directed verdict on this defense. From the record we cannot say whether the court was of the opinion that he was without jurisdiction to enter an order with respect to the defense, whether he was of the opinion that the question was one for the jury and the evidence presented by defendant insufficient to present to the jury, or whether he was of the opinion that the determination was for him but that the evidence did not warrant a modification. He found no facts and made no conclusion upon defendant's evidence in support of this defense. Upon a rehearing the court should find whether there has been a change of circumstances and if so whether the change requires or justifies a modification.

Defendant's final contention is that he only agreed to execute the amended separation agreement, increasing the amount of alimony, when the plaintiff represented to him that she was about to marry Rolland Cole, and that since this representation proved to be false, plaintiff should be estopped to deny that she remarried, and the issue of estoppel should have been submitted to the jury. We find no merit in this contention and conclude that a directed verdict on this issue was entirely proper. An estoppel by representation is created when a party reasonably relies upon another party's misrepresentation to his detriment. It is common knowledge that couples sometimes change their minds and call off their planned wedding at the last minute. The record clearly shows that the amended separation agreement was entered into 2 August 1968. Plaintiff obtained her divorce 23 September 1968. Defendant was well aware of the divorce. Subsequent thereto he was also aware that plaintiff was either travelling with or in Florida with Rolland Cole. Nevertheless, he continued the payments of $300 per month until early 1973. During a good part of this time, he mailed the monthly checks to her in Florida. At no time until this action was brought did defendant voice any objection or suggest he should be justified in relying upon plaintiff's representation that she intended to marry Rolland Cole. This assignment of error is overruled.

Reversed and new trial.

BROCK, C. J., and HEDRICK, J., concur.