Denson v. CR Fish Grading Co., Inc.

220 S.E.2d 217 (1975)

28 N.C. App. 129

Alexander B. DENSON, guardian ad litem for Terry Glen Stewart, minor, et al., Employee, v. C. R. FISH GRADING CO., INC., Employer, U. S. Fidelity & Guaranty Co., Carrier.

No. 7510IC619.

Court of Appeals of North Carolina.

December 17, 1975.

*219 Mitchiner, DeMent, Redwine & Yeargan by Phillip O. Redwine, Raleigh, for appellant Pauline Johnson Stewart.

Ernest E. Ratliff, Raleigh, for appellee Anna Hatchett Stewart.

MARTIN, Judge.

"The decided weight of authority. . . is that where 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 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." Parker v. American Lumber Corp., 190 Va. 181, 56 S.E.2d 214 (1949).

The marriage of Anna to James D. Stewart, his second marriage, was duly proved. The marriage ceremony was performed in Fuquay Varina, North Carolina. The burden was then on Pauline, his first wife, to produce evidence to show the invalidity of that marriage. She proved that James D. Stewart was married to her on 5 April 1942, and she testified that she had not divorced him and had never had any notice of any divorce obtained by him. There was no other attempt to prove there had been no divorce.

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.

Pauline was aware of James D. Stewart's return to North Carolina in 1969. He told her he was married to Anna, and she knew they lived together as man and wife at his mother's home. There is no evidence that Pauline made any claim that James D. Stewart was her husband.

Our Supreme Court in Chalmers v. Womack, 269 N.C. 433, 152 S.E.2d 505 (1967), held that the issue as to the validity of a subsequent marriage was properly submitted to the finders of the fact, in that case a jury, and found no error in a judgment entered upon a verdict finding the subsequent marriage valid. The opinion in that case quoted with approval from the decision in Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945), as follows:

"`"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." . . (I)t is always for the jury where the demand is for an affirmative finding in favor of the party having the burden, even though the evidence may be uncontradicted. *220. . . Moreover, proof of the second marriage adduced by the defendant, if sufficient to establish it before the jury, raises a presumption of its validity, upon which property rights growing out of its validity must be based.'"

The Industrial Commission, as finder of the facts, has found in effect that Pauline has failed to overcome the presumption of the validity of the second marriage and this finding will not be disturbed on this appeal.

The opinion and award of the Industrial Commission is

Affirmed.

MORRIS and PARKER, JJ., concur.