Hendrix v. L. G. DeWitt, Inc. , 19 N.C. App. 327 ( 1973 )

PARKER, Judge.

The evidence before the Industrial Commission as to whether the deceased employee’s prior marriage to Carolyn had been dissolved by divorce prior to his subsequent marriage to Cordia was at best contradictory and inconclusive. Upon evidence no more convincing, our Supreme Court in Chalmers v. Womack, 269 N.C. 433, 152 S.E. 2d 505, 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, 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. . . . 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.’ ”

In the present case, the subsequent marriage between the deceased employee and Cordia being shown, the burden fell upon Carolyn to prove its invalidity. The Industrial Commission, as finder of the facts, has found in effect that Carolyn failed to carry that burden, and this finding will not be disturbed on this appeal.

Appellant cites and relies upon the case of Williams v. Williams, 254 N.C. 729, 120 S.E. 2d 68, which was decided by a divided court with three Justices dissenting. Without attempting to distinguish that case, it is our opinion that the present appeal is controlled by the more recent decision in Chalmers v. Womack, supra, which was decided by a unanimous court and which is in accord with substantial authority from other jurisdictions. See: Annotation, 14 A.L.R. 2d 7.

The record contains the statement that the attorney for Cordia and the attorney for the employer during a hearing before one of the Deputy Commissioners stipulated “that there was no divorce of record, and that no one was able to find any record of a divorce.” In the context in which this stipulation was made, we think it is clear that it meant there was no evidence of record in Randolph County, where the hearing was conducted, and not that there was no divorce of record in any jurisdiction. In our opinion the stipulation does not, as appellant contends, compel the finding that the subsequent marriage to Cordia was invalid.

The opinion and award of the Industrial Commission is

Affirmed.

Chief Judge Brock and Judge Morris concur.