Wiseman v. Wiseman

Annotate this Case

314 S.E.2d 566 (1984)

Doris WISEMAN v. Lenora WISEMAN. In the Matter of the ESTATE OF Walter Lee WISEMAN.

No. 8312SC31.

Court of Appeals of North Carolina.

May 1, 1984.

*567 Ronald Williams, P.A., Charlotte, for petitioner-appellant.

Mitchel E. Gadsden and N.H. Person, Fayetteville, for respondent-appellee.

JOHNSON, Judge.

The precise nature of the questions presented by petitioner Doris Wiseman's appeal is rendered uncertain by virtue of the fact that petitioner has failed to comply with the Rules of Appellate Procedure in preparing the record on appeal and the brief supporting her position on the questions presented. Petitioner has violated App.R. 9(b)(1)(XI) and App.R. 10 by failing to set out any exceptions immediately following the record of the judicial action to which they are addressed and by failing to list all the objections or exceptions upon which the assignments of error set out at the conclusion of the record are based. In addition, petitioner has violated App.R. 10(b)(2) by failing to identify the specific portion of the jury instruction questioned in this appeal by setting it within brackets or by any other clear means of reference. Finally, petitioner's brief fails to make reference to the numbered assignments of error and exceptions pertinent to the separate questions and arguments presented in the body of the brief in violation of App.R. 28(b)(5). Furthermore, no numbered exceptions appear anywhere in the body of this record.

The Rules of Appellate Procedure are mandatory and failure to follow the *568 rules subjects an appeal to dismissal. Marsico v. Adams, 47 N.C.App. 196, 266 S.E.2d 696 (1980). However, we are aware that petitioner's assignments of error pertain to the jury instructions and denial of judgment NOV, and it cannot be said that petitioner's various rule violations have markedly increased the difficulty of our task in evaluating this appeal, in view of the brevity of the record and nature of the issue presented. Therefore, we deem it appropriate to suspend the rules in this instance. App.R. 2; Drug Stores v. Mayfair,50 N.C. App. 442, 274 S.E.2d 365 (1981). However, this result should not be construed as either approving or encouraging the laxity in compliance with the Rules of Appellate Procedure demonstrated in this case.

We note first that the record is devoid of any indication that petitioner moved for a directed verdict at the close of her own evidence or at the close of all the evidence. In order to preserve the right to move for a judgment NOV under G.S. 1A-1, Rule 50(b), a party must move for a directed verdict at the close of all the evidence. Gibbs v. Duke, 32 N.C.App. 439, 232 S.E.2d 484, disc. rev. denied, 292 N.C. 640, 235 S.E.2d 61 (1971); Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). This is an absolute prerequisite. Id.; see generally Shuford, N.C. Civ.Prac. & Proc. (2nd Ed.), ยง 50 et seq. Petitioner's failure to do so, therefore, justified the trial court's denial of her motion for judgment NOV. As a consequence, the question of the sufficiency of the evidence to support the verdict has not been properly preserved for appellate review.

Petitioner contends that the jury was erroneously instructed that a second or subsequent marriage is presumed valid because such a presumption is in "direct violation" of G.S. 51-3, which provides that all marriages between any two persons either of whom "has a husband or wife living at the time of such marriage" shall be void. In other words, petitioner appears to be arguing that the first marriage of Walter and Doris is presumed to continue, absent evidence to the contrary, and that the trial court erred in the charge as to the burden of proof and substantive law with respect to this issue. We do not agree.

It is well established that, " `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 v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945). Accord Chalmers v. Womack, 269 N.C. 433, 152 S.E.2d 505 (1967); Ivory v. Greer Brothers, Inc., 45 N.C.App. 455, 263 S.E.2d 290 (1980); Green v. Construction Co., 1 N.C.App. 300, 161 S.E.2d 200 (1968).

We have carefully examined the trial court's charge to the jury and find that it fully and accurately summarized the evidence presented, the contentions of the parties, and correctly declared and explained the law arising upon the evidence in all respects. Therefore, the petitioner's assignment of error is wholly without merit. The parties have received a fair trial, and the verdict and judgment are

Affirmed.

ARNOLD and PHILLIPS, JJ., concur.