In re Estate of Peacock

248 N.C.App. 18

788 S.E.2d 191

In the Matter of the ESTATE OF Richard Dixon PEACOCK.

No. COA15–1238.

Court of Appeals of North Carolina.

June 21, 2016.

Law Offices of G. Grady Richardson, Jr., P.C., Wilmington, by G. Grady Richardson, Jr., for Appellee.

Johnson Lambeth & Brown, by Regan H. Rozier, Wilmington, for Appellant.

McGEE, Chief Judge.

I.

Richard Dixon Peacock ("Decedent") and Bernadine Peacock ("Petitioner") were married 1 August 1993. Decedent had two children by a prior marriage, Rachel Peacock Ceci ("Rachel") and Richard Eric Peacock ("Eric"). Decedent and Petitioner had three children: two living at the time of this action, Richard Peacock II ("Richard") and Kristen Alicia Peacock ("Kristen"); and Jonathan Peacock, deceased and without heirs. Decedent and Petitioner divorced in 2007. The uncontested testimony is that Decedent and Petitioner reconciled, and Petitioner moved back into Decedent's house in July 2012. They attended church "every Sunday with Richard, and established a relationship with their pastor, Reverend Dena Bearl ("Reverend Bearl"). Reverend Bearl first assumed Decedent and Petitioner were married, but they informed her they had divorced and reconciled, and that they intended to remarry, but "never made a solid date." According to Reverend Bearl, Decedent and Petitioner "just said they wanted to do it, and I said, you know, give me a call and we'll get together and discuss it. And, you know, just he got ill and we—they just—we never had that meeting that they wanted to have."

Decedent had chronic medical issues, and Petitioner cared for him. Decedent became ill on 16 November 2013, and required hospitalization. Decedent was twice transferred from the hospital to a rehabilitation facility before returning to the hospital on 14 December 2013. Decedent and Petitioner discussed marriage while Decedent was hospitalized, and decided to marry while Decedent was still in the hospital. Petitioner asked their friend, Mary Bridges "to be ... her ‘maid of honor’ as a witness and [Petitioner's] son, Richard, as a best man [and the second witness]." Reverend Bearl visited Decedent in the hospital about every other day, and she agreed to officiate the wedding ceremony at Decedent's and Petitioner's request. Reverend Bearl testified she had been ordained for twenty-two years, had performed many wedding ceremonies in her capacity as a pastor, and was fully authorized by her church to do so. Reverend Bearl testified she performed the regular ceremony that she performs for weddings, though certain parts were shortened. Reverend Bearl testified both Decedent and Petitioner affirmed: "In the name of God, I take you to be my wife[/husband], to have and to hold from this day forward, for better, for worse, richer or poorer, in sickness, in health, to love and to cherish until death[.]" Reverend Bearl then "pronounce[d] [Decedent and Petitioner] husband and wife[,]" and performed "the blessing of the marriage" which, Reverend Bearl testified, "for us [her church] is very important."

However, because Decedent and Petitioner had not procured a marriage license, Reverend Bearl testified:

It was my intent to provide what I thought was for Richard in the last days of his life some closure to something that he felt and regretted had not been done. So, it was a pastoral act on my part. I knew there wasn't a wedding license. I wasn't in there as a representative of the state, which clergy are, you know, when they're doing marriages and have the license present. So, I mean, we all knew that there was not a wedding, a marriage license. So, this was a pastoral and a sacramental—I would say for me it was mainly a sacramental act, a sacrament that they wanted to know that they had.

Q. When you left the room, did you feel that they were now husband and wife?

A. I felt that they felt that they were, that they had taken the vows seriously.

....

Q. Did you discuss with them whether they—you could legally marry them?

A. I—well, I told them that it would not be a legal marriage if we didn't have a license, and they did not have a license. But I believe the sacrament took place, and that was what was important to them.

Petitioner testified that she did not attempt to obtain a marriage license because Decedent was too ill to travel to the register of deeds, and that "we didn't really think about a marriage license, we just were happy to finally get married."

Decedent died intestate on 19 December 2013, the day following the ceremony. Rachel filed an application for letters of administration on 17 April 2014, in which she listed four known heirs: herself, Eric, Richard and Kristen. Petitioner filed a motion for determination of heirs dated 16 October 2014, contending she was the spouse of Decedent when he died and, therefore, she should be included as an heir of Decedent's estate. This matter was initially heard by an Assistant Clerk of Court of New Hanover County on 11 December 2014. The Assistant Clerk of Court concluded that the 18 December 2013 ceremony did "not make [Petitioner] an ‘heir’ or entitle [Petitioner] to a spousal allowance or the share of the surviving spouse or any other interest in or from the Decedent's Estate." The Assistant Clerk of Court ruled that Decedent's heirs were Rachel, Eric, Richard, and Kristen.

Petitioner appealed the decision to superior court. Petitioner's appeal was heard on 7 May 2015, and additional testimony was permitted.

The trial court, in an order entered 26 May 2015, made its own findings of fact and conclusions of law, and affirmed the Assistant Clerk of Court's decision. Petitioner appeals.

II.

Appellate review of orders of clerks of court is as follows:

On appeal to the Superior Court of an order of the Clerk in matters of probate, the trial court judge sits as an appellate court. When the order or judgment appealed from does contain specific findings of fact or conclusions to which an appropriate exception has been taken, the role of the trial judge on appeal is to apply the whole record test. In doing so, the trial judge reviews the Clerk's findings and may either affirm, reverse, or modify them. If there is evidence to support the findings of the Clerk, the judge must affirm. .... The standard of review in this Court is the same as in the Superior Court.

In re Estate of Pate, 119 N.C.App. 400, 402–03, 459 S.E.2d 1, 2–3 (1995) (quotations and citations omitted). "Errors of law are reviewed de novo ." Overton v. Camden Cty., 155 N.C.App. 391, 393, 574 S.E.2d 157, 160 (2002) (citation omitted). Though Petitioner argues that certain findings of fact were not supported by the evidence, we have thoroughly reviewed the findings of fact and hold that the relevant findings of fact are supported by the evidence. We therefore review the relevant conclusions of law, and the trial court's ruling, de novo for errors of law. Id.

III.

Petitioner argues that the "[trial] court's judgment is inconsistent with the applicable law." We agree.

The rulings of the Assistant Clerk of Court and the trial court are based upon conclusions that the ceremony conducted on 18 December 2013 did not result in a valid marriage. The "Requisites of marriage" are set forth, in relevant part, in N.C. Gen.Stat. § 51–1 as follows:

A valid and sufficient marriage is created by the consent of a male and female person¹ who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

(1) a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and

b. With the consequent declaration by the minister or magistrate that the persons are husband and wife[.]

N.C. Gen.Stat. § 51–1 (2015). In the present case, it is undisputed that Decedent and Petitioner were able to lawfully marry at the time of the ceremony; that they seriously and freely expressed their desire to become husband and wife in the presence of each other; that Reverend Bearl was an ordained minister with authority to conduct marriage ceremonies; and that Reverend Bearl declared during the ceremony that Decedent and Petitioner were husband and wife.

However, it is also undisputed that the ceremony was conducted without a marriage license as required by N.C. Gen.Stat. § 51–6, which states:

No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant.

N.C. Gen.Stat. § 51–6 (2015). Violation of N.C. Gen.Stat. § 51–6 by a minister or other authorized person is a misdemeanor, and is punishable by a fine:

Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.

N.C. Gen.Stat. § 51–7 (2015).

Our Supreme Court has discussed the consequences of violating the license requirement in N.C. Gen.Stat. § 51–6 :

C.S., 2498,² emphasizes the requirement that the license must be first delivered to the officer before the solemnization of the marriage:

"No minister or officer shall perform a ceremony of marriage between any two persons, or shall declare them to be man and wife, until there is delivered to him a license for the marriage of the said persons, signed by the

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