Maxwell v. Woods, 47 N.C. App. 495

Maxwell v. Woods

47 N.C. App. 495 | N.C. Ct. App. | 1980

VAUGHN, Judge.

This case is controlled by the case of Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617 (1956). The trial court found that the judgment role in the Carteret divorce action was in all respects regular on its face. Plaintiff does not contend otherwise. In *497Carpenter, our Supreme Court held that, “[a]s against challenge on the ground of false swearing, by way of pleading and of evidence, relating to the cause or ground for divorce, a divorce decree, in all respects regular on the face of the judgment roll, is at most voidable, not void.” Id. at 295, 93 S.E. 2d at 625-26 (emphasis original). Even though there is proof that defendant and Woods had not lived separate and apart for one year as of the time of their divorce, the divorce judgment is not void but merely voidable. See also Stokely v. Stokely, 30 N.C. App. 351, 227 S.E. 2d 131 (1976).

Plaintiff does not have standing to attack collaterally the divorce decree between defendant and Woods because he is a stranger to the decree who is not prejudiced as to some preexisting right by the decree. As stated in Carpenter,

When, in such case, a second spouse can rely upon the divorce decree, we think the sounder view is to require him to do so rather than permit him to attack it at his election, depending on the fortunes or misfortunes of the marriage. We must be mindful of his status where he chooses to maintain the validity of the divorce decree rather than to attack it. It would seem that if this plaintiff has a just grievance, such arises, not on account of the divorce decree and his marriage, but on account of matters arising during the subsistence of such marriage.

Id. at 298, 93 S.E. 2d at 628; see also 1 Lee, N.C. Family Law § 92 (4th ed. 1979).

Since the marriage of plaintiff and defendant is not void on the grounds at issue in this appeal, we need not consider plaintiffs claim that he be declared the sole owner of the real estate transferred by him to himself and defendant as tenants by the entirety.

Affirmed.

Judges Parker and Hedrick concur.