Petition for Writ of Certiorari — Heiser v. Heiser

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*Siica_ Supreme Court, U.S

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JUN 10 1985

ALEXANDER L. STEVAS

CLERK

No. 85-

IN THE

Supreme Court of the United States

October Term, 1985

ROBERT HEISER, Petitioner

v.

RUBY PLESS HEISER, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

BEN OSHEL BRIDGERS

P.O. Box 248

Sylva, North Carolina 28779

(704) 586-2121

Counsel for Petitioner

QUESTION PRESENTED

1. Did the North Carolina courts denial of Petitioner’s right of

cause of action to collaterally attack a fraudulently procured prior

divorce judgment violate his constitutional rights under the due pro-

cess and equal protection guarantees of the Fifth and Fourteenth

Amendments?

PARTIES TO THE PROCEEDING

The parties to the proceeding are as follows: The plaintiff-appellant

(Petitioner here) is Robert Heiser. The defendant-appellee (Respon-

dent here) is Ruby Pless Heiser.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES:

Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d.

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Donnell v. Howell, 257 N.C. 175, 125 S.E. 2d 448 (1962). . .6

Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct.

Be Oe ee rr a pe ee

Mullane v. Central Hanover Bank and Trust Co.,

399 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)......... 5

Pridgen v. Pridgen, 203 N.C. 533, 166 S.E. 591 (1932)..... 6

State v. Herron, 203 N.C. 533, 94 S.E. 698 (1918)......... 7

State v. Williams, 224 N.C. 183, 29 S.E. 2d 744 (1944),

affirmed Willianmis v. North Carolina, 325 U.S. 226 (1945)...7

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CONSTITUTION, STATUTES, AND RULES:

North Carolina Genera! Statute §51-3 (1984)............... 6

United States Constitution,

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No. 85-

IN THE

Supreme Court of the United States

October Term, 1985

ROBERT HEISER,

Petitioner

Vv.

RUBY PLESS HEISER,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

NORTH CAROLINA

Petitioner, Robert Heiser, respectfully prays that a writ of cer-

tiorari issue to review the denial of the petition for discretionary review

of the Supreme Court of North Carolina entered in this case on March

11, 1985.

OPINIONS BELOW

The denial of the petition for discretionary review of the Supreme

Court of North Carolina is reported at_-._ =N.C._—C*=“d

S.E. 2d... —s—« (1985). Thee opinion of the North

Carolina Court of Appeals is reported at 71 N.C. App. 223, 321 S.E.

2d. 479 (1984).

JURISDICTION

The denial of the petition for discretionary review of the Supreme

Court of North Carolina was entered on March 11, 1985 and this peti-

tion for certiorari is filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment provides that, ‘‘no person shall

be. . . deprived of life, liberty, or property, without due process of

reo:

The Fourteenth Amendment provides that, “‘No state shall . . .

deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal protec-

tion of the laws.”’

STATEMENT OF THE CASE

On April 14, 1951, the Respondent Wife married her first hus-

band, Harry Pless. On December 9, 1973, they signed a Deed of

Separation memorializing these dates, and establishing their mutual

residence in Haywood County.

On March 5, 1974, she filed a verified complaint for divorce

in Buncombe County based on a one-year separation from Pless, alleg-

ing a separation date of May 12, 1972. She alleged Pless was a resi-

dent of Buncombe County. After summons was returned ‘‘sot to be

found’’ in Buncombe County she obtained service by publication in

a Buncombe County newspaper. A judgment of divorce was granted

by the Buncombe County District Court on April 24, 1974.

On July 12, 1974, the Wife married Petitioner Heiser.

Husband Pless then filed a complaint in Haywood County

District Court seeking a divorce from his Wife, alleging the same facts

and dates set forth in their Deed of Separation. The Wife filed answer

on January 3, 1975, after her marriage to Petitioner and without his

knowledge or participation, admitting both separation from Husband

Pless on December 9, 1973 and that he was a resident of Haywood

County. A judgment of absolute divorce was filed in the Haywood

County District Court on January 6, 1975.

During her purported marriage to Petitioner, the Wife induced

him to convey valuable real property directly to her and subsequently

commenced a divorce from bed and board suit against him. During

the course of this proceeding, Petitioner learned the true facts surroun-

ding the two separate divorce proceedings between the Wife and her

Husband Pless. Petitioner sought to attack the validity of the Wife’s

first purported divorce in this proceeding, but this was disallowed,

although the jury found she was not entitled to a divorce from bed

and board. The Wife then filed a suit for absolute divorce from Peti-

tioner. Petitioner sought to attack the validity of the marriage as a

defense in this divorce suit, but the defense was disallowed. Petitioner

then filed an independent action in the Buncombe County District Court

seeking an annulment on the grounds that his marriage to the Wife

was unlawful under North Carolina law because the purported divorce

decree granied by the Buncombe County District Court was obtained

by fraud upon the Court and the Wife was still lawfully married to

a third person on the date of her purported marriage to Petitioner.

The Wife filed answer to the annulment action containing a

general denial and a motion to dismiss under Rule 12(b) of the Rules

of Civil Procedure. The District Court granted Summary Judgment

in favor of the Wife and dismissed the annulment action on October

25, 1983. Petitioner gave notice and duly perfected his appeal.

Petitioner raised two issues on appeal. First, could Petitioner

collaterally attack a divorce decree, for the purpose of nullifying the

decree as it affected his marriage, by offering evidence to show that

the Respondent submitted a fraudulent affidavit to justify service by

publication in her divorce action, which publication provided the

jurisdictional basis for the decree? Second, Petitioner raised the issue

now being addressed: Does denial of a collateral attack to the divorce,

in which jurisdiction was obtained through fraud, constitute a denial

to the Petitioner of due process or equal protection of the law?

On November 6, 1984, without permitting oral argument, the

North Carolina Court of Appeals filed its decision affirming the Sum-

mary Judgment granted in favor of the Wife. The Court held that if

the finding in the divorce decree from her former husband was in all

respects regular on its face, the Petitioner ‘‘does not have standing

to attack collaterally, the divorce decree * * * because he is a stranger

to [it] who is not prejudiced as to some preexisting right by [it].”’

Heiser v. Heiser, 71 N.C. App. 223, 321 S.E. 2d. 479 (1984). The

Appellate Court did not address the constitutional issue in its opinion.

Petitioner timely perfected appeal to the Supreme Court of North

Carolina and again asserted the constitutional issue now being presented

to this Court. The Supreme Court of North Carolina entered a denial

of the petition for discretionary review on March 11, 1985.

5

REASONS FOR GRANTING THE WRIT

The Subject Matter of this Petition for Certiorari is of Signifi-

cant Public Interest. Heiser is the first appellate North Carolina deci-

sion to squarely address the validity of a third party attack on a

fraudulently obtained divorce where the third party had no knowledge

of the fraud. In Heiser, the fraud went to the very jurisdictional authority

of the court to enter . valid divorce. The Court of Appeals, by affirm-

ing the summary judgment entered by the trial court, closed its eyes

to flagrant fraud and abuse of its process and effectively denied due

process and equal protection to the Petitioner. This issue xs. >f signifi-

cant public interest because it:

I. Countenances an intentional, clear, and blatant fraud upon

the court, a fraud that visibly appears on the face of public judicial

documents, and;

I. Violates the Petitioner’s due process and equal protec-

tion constitutional rights under the Fifth and Fourteenth Amendment

by denying him right of access to the courts to attack this obvious fraud

and gain redress for his injury.

This court has repeatedly emphasized that “‘the Due Process

clause grants the aggrieved party the opportunity to present his case

and have its merits fairly judged’’. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 434, 102 S. Ct. 1148, 1156, 71 L. Ed.2d. 265 (1982).

This Court has recognized that a cause of action is a species of pro-

perty protected by the Fourteenth Amendment’s Due Process Ciause.

Mullane v. Hanover Bank and Trust Co., 339 U.S. 306, 70 S. Ct.

652, 94 L. Ed. 865 (1950). The hallmark of property is an individual

entitlement grounded in state law, which cannot be removed except

‘*for cause.’’ Logan v. Zimmerman Brush Co., 455 U.S. at 431, 102

S. Ct. at 1155.

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North Carolina General Statutes, Section 51-3, provides that ‘‘all

marriages . . . between persons either of whom has a husband or wife

living at the time of such marriage . . . shall be void.’ Public policy

precludes citizens of the state from avoiding the legislature’s judgment

on the question of divorce. North Carolina citizens are to endure a

one year period of separation to lessen the likelihood of an ill con-

sidered divorce and hasty remarriage such as the one in question.

When faced with the issue of a fraudulently procurred divorce

through service of summons based on a false and fraudulent affidavit,

the North Carolina courts have consistently, except for Heiser, allow-

ed redress through the court system and set aside the prior judgment

on the grounds that the court acquired no jurisdiction over the party

upon no process had been served. The subsequent marriage was thus

annulled, a nullity, void ab initio, etc.

The clear arbitrariness and unfairness of the decision denying

this Petitioner right of access to the court system is best evidenced by

noting that while under the same existing factual conditions, North

Carolina law will not aliow Petitioner Heiser to collaterally attack a

prior divorce judgment which is regular on the face of its record, it

will allow:

(1) Accollateral attack by a subsequent spouse to a divorce

decree irregular on the face of the record. ' Pridgen v. Pridgen, 203,

N.C. 533, 166 S.E. 591 (1932).

(2) A collateral attack by a former spouse to a divorce decree

that is regular on the face of the record. Donnell V. Howell, 257 N.C.

175, 125 S.E. 2d. 488 (1962).

' The leading North Carolina case on collateral attack of a divorce

decree by a subsequent spouse cited Pridgen as direct authority for

the above mentioned proposition. See Carpenter v.Carpenter, 244 N.C.

286, 93 S.E. 2d. 617 (1956).

7

(3) An attack by the state upon the divorce decree.”

The law enunciated in Heiser results in an arbitrary and unfair

result. The States goal and purpose to both provide redress to wrong-

ed individuals and uphold the state policy against fraudulently procur-

red divorces is neither furthered nor rationally related to the holding

in Heiser. Denying Petitioner the right to collaterally attack the prior

divorce judgment is constitutionally repugnant because it denies this

legal right and policy which it affords to others or to the State itself.

The denial of access to the courts also violates Petitioner’s Equal

Protection rights granted under the Fourteenth Admendment. The law

put forth in Heiser establishes two classifications, one is explicit, the

other is not. First, the court explicitly catagorizes claimants into two

distinct groups; subsequent spouses and former spouses. It then af-

fords disparate treatment by permitting former spouses to collaterally

attack a prior divorce judgment that is regular on the face of the record

while prohibiting subsequent spouses from such attacks. Second, the

court implicitly creates another classification, that of two groups of

claims which are accorded disparate treatment. One permits collateral

attacks on fraudulent decrees if the fraud appears on the face of the

record but the other denies such attacks if they do not. See concurring

opinion by Justice Blackmun, Logan _v. Zimmerman

Brush Co., 455 U.S. at 438, 102 S. Ct. at 1159 (Justices Brennan, Mar-

shall and O’Connor joining).

* It would also appear that in a criminal prosecution for bigamy,

adultery or fornication, the State would have the right to impeach the

validity of a decree divorcing a defendant from a former spouse when

that decree is relied upon by a criminal defendant as a defense. State

v. Herron, 175 N.C. 754 (1918): State v. Williams, 224 N.C. 183,

29 S.E. 2d 744 (1944), affirmed Williams v. North Carolina, 325 U.S.

226 (1945).

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This court has consistently required legislatures and courts to

classify personal rights in a manner rationally related to legitimate

governmental objectives. Logan, Id. Heiser falls short of this Equal

Protection analysis because it results in an irrational result and is in-

consistent with the State’s statutory method of providing redress to

injured persons and upholding the State’s policy against fraudulent pro-

curement of divorces.

CONCLUSION

The Writ of Certiorari raises a clear error on an issue of signifi-

cant public interest. As such, it should be granted.

Respectfully submitted,

Ben Oshel Bridgers

Post Office Box 248

Sylva, North Carolina 28779

(704) 586-2121

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Appendix A

No. 714P84 Twenty-Eighth District

SUPREME COURT OF NORTH CAROLINA

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JUDGMENT DISMISSING

APPEAL ON MOTION OF

DEFENDANT AND DENYING

PETITION FOR DISCRETIONARY

REVIEW (8328DC1269)

ROBERT HEISER

v.

RUBY PLESS HEISER

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Upon consideration of the Plaintiff's notice of appeal from the

North Carolina Court of Appeals, filed in this matter pursuant to G.S.

7A-30, and the Defendant’s motion to dismiss the appeal for lack of

substantial constitutional question and upon consideration of the Plain-

tiff's petition for discretionary review of the decision of the North

Carolina Court of Appeals, pursuant to G.S. 7A-31, the following order

was entered and is hereby certified to the North Carolina Court of Ap-

peals: Defendant’s motion to dismiss the appeal is

‘*Allowed by order of the Court in conference, this

the 27th day of February 1985.

s / Vaughn, J.

For the Court”’

Plaintiff's petition for discretionary review is

‘*Denied by order of the Court in conference, this

the 27th day of February 1985.

s / Vaughn, J.

For the Court”’

Therefore, it is considered and adjudged further that Plaintiff's

do pay the sum of Nine and no/100 Dollars ($9.00) and that execution

issue therefor.

WITNESS my hand and the seal of the Supreme Court of North

Carolina, this the 11th day of March 1985.

J. GREGORY WALLACE

Clerk of the Supreme Court

Copy to:

North Carolina Court of Appeals

Holt, Haire & Bridgers, Attorneys at Law

Mr. John E. Shackelford, Attorney at Law

3a

Appendix B

No. 8328DC1269

NORTH CAROLINA COURT OF APPEALS

Filed: 6 November 1984

ROBERT HEISER

v. Buncombe County

RUBY PLESS HEISER No. 83CvD2157

Appeal by plaintiff from Fowler, Judge. Judgment entered 25

October 1983 in District Court, Buncombe County. Heard in the Court

of Appeals 24 September 1984.

Plaintiff-husband appeals from a judgment dismissing his ac-

tion for annulment of his marriage to defendant-wife.

Holt, Haire & Bridgers, P.A., by Ben Oshel Bridgers, for plaintiff

appellant.

Riddle, Shackelford & Hyler, P.A., by John E. Shackelford,

for defendant appellee.

WHICHARD, Judge.

I.

The complaint prays that plaintiff-husband be granted an an-

nulment of his ‘“‘purported marriage’ to defendant-wife on the following

grounds: Plaintiff-husband and defendant-wife entered into a ceremony

of marriage on 12 July 1974. Plaintiff-husband entered the marriage

in good faith and without notice or knowledge that defendant-wife had

obtained a fraudulent divorce from her prior husband. Defendant-wife

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obtained the prior divorce by fraud in that she represented that her

then husband resided in Buncombe County, the venue of that action,

when in fact to her knowledge he resided in Haywood County. The

Buncombe County court relied upon defendant wife’s false represen-

tation and was induced to assert jurisdiction over her then husband

upon service by publication, when in fact the court could not obtain

service by publication under the true facts and circumstances.

Defendant-wife thus was still married to her prior husband when she

purported to marry plaintiff-husband. Plaintiff-husband therefore is en-

titled to an annulment of the purported marriage under G.S. 51-3, which

provides that a marriage between persons either of whom has a hus-

band or wife living at the time is void.

Defendant-wife pled as a defense that ‘‘[t]his is an action to set

aside a divorce and is not brought by the parties to said divorce and,

therefore, does not state a claim upon which relief should be granted

and should be dismissed . . .”’ The trial court found that ‘‘the divorce

judgment entered [in defendant-wife’s Buncombe County action against

her prior husband] . . . is in all aspects regular on its face; that this

is an action brought not by the parties to said . . . action and that

therefore this case should be dismissed . . .”’

From a judgment dismissing the claim, plaintiff-husband appeals.

II.

Plaintiff-husband did not except to the finding that the divorce

judgment in defendant-wife’s prior action against her former husband

was in all respects regular on its face. He does not contend nor does

the record indicate that the judgment on its face was irregular in any

respect. He thus ‘‘does not have standing to attack collaterally the

divorce decree . . . because he is a stranger to [it] who is not prejudic-

ed as to some pre-existing right by [it].”’ Maxwell v. Woods, 47

N.C.App. 495, 497, 267 S.E.2d 516, 517, disc. rev. denied, 301 N.C.

236, 283 S.E.2d 132 (1980). See also Carpenter v. Carpenter, 244

N.C. 286, 93 S.E.2d 617 (1956) (since plaintiff-husband can rely upon

the prior divorce decree, 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); 46 Am.Jur.2d, Judgments § 663, p.

819 (‘‘a collateral attack may not be made upon a judgment where the

absence of jurisdiction does not appear upon the record’’); 1 Lee, North

Carolina Family Law § 92 (4th ed. 1979).

Pursuant to the foregoing authorities the trial court ruled cor-

rectly; the judgment accordingly is

Affirmed.

Chief Judge VAUGHN and Judge JOHNSON concur.

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Appendix C

STATE OF NORTH CAROLINA — IN THE GENERAL COURT OF JUSTICE

DISTRICT COURT DIVISION

COUNT OF BUNCOMBE FILE #83 CV 2157

ROBERT HEISER,

Plaintiff, )

)

VS. ) JUDGMENT

RUBY PLESS HEISER, )

Defendant. )

THIS CAUSE coming on to be heard upon the Motion of the defen-

dant for summary judgment and the defendant having offered the Com-

plaint of the plaintiff together with Exhibits A, B, and C attached thereto

and the Court having examined said attachments and finds that the

divorce judgment entered therein is in all respects regular on its face;

that this is an action brought not by the parties to said and former ac-

tion and that therefore this case should be dismissed.

IT IS THEREFORE, ORDERED, ADJUDGED AND

DECREED that the plaintiffs claim for relief by and the same is hereby

dismissed and the defendant is taxed with the costs.

THIS, the _25__ day of Oct. , 1983.

JUDGE FOWLER