GEITNER BY AND THROUGH FIRST NAT. v. Townsend

EAGLES, Judge. Plaintiff guardian bank asks us to find that the trial judge erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and a new trial. Plaintiff contends that a marriage with a legally declared incompetent is void as a matter of law. We do not agree. A voidable marriage is valid “for all civil purposes until annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time.” Ivery v. Ivery, 258 N.C. 721, 726, 129 S.E. 2d 457, 461 (1963). Our Supreme Court has held that, under the common law as modified by G.S. 51-3 and G.S. 50-4, a marriage of a person incapable of contracting for want of understanding is not void, but voidable. Id. at 730, 129 *162 S.E. 2d at 463. We find that prior adjudication of incompetency is not conclusive on the issue of later capacity to marry and does not bar a party from entering a contract to marry. The mental capacity of a party at the precise time when the marriage is celebrated controls its validity or invalidity. 1 Lee, North Carolina Family Law § 24 (4th ed. 1979). As to what constitutes mental capacity or incapacity to enter into a contract to marry, “the general rule is that the test is the capacity of the person to understand the special nature of the contract of marriage, and the duties and responsibilities which it entails, which is to be determined from the facts and circumstances of each case.” Ivery, 258 N.C. at 732, 129 S.E. 2d at 464-65 (quoting 55 C.J.S. Marriage § 12). In Lee’s treatise on North Carolina family law, it is noted that “unlike other transactions, an insane person’s capacity to marry is not necessarily affected by guardianship. . . . (R)easons why guardianship removes from the insane person all capacity to contract do not apply to marriage.” 1 Lee, supra, § 24 n. 119 (quoting McCurdy, Insanity as a Ground for Annulment or Divorce in English or American Law, 29 Va. L. Rev. 77 (1943)). In fact, “tests judicially applied for a determination of incompetency in guardianship matters differ markedly from those applied for the determination of mental capacity to contract a marriage, for even though under guardianship as an incompetent, a person may have in fact sufficient mental capacity to validly contract marriage.” 4 Am. Jur. 2d ANNULMENT OF MARRIAGE § 28. We find that, here, sufficient evidence was presented to support a jury’s verdict. Defendants presented both expert and lay witnesses who testified that Mr. Geitner did have, on 29 May 1980, adequate mental capacity and understanding of the special nature of a contract to marry. The fact that plaintiff guardian bank offered conflicting evidence merely required the jury to consider the credibility of the witnesses and evidence on each side. The fact that there was conflicting evidence does not require a directed verdict, judgment notwithstanding the verdict, or a new trial. Plaintiff guardian bank also assigns as error the trial judge’s charge to the jury that the burden of proof was on the plaintiff to prove that David Royer Geitner lacked the mental capacity and understanding sufficient to contract a valid marriage. We find no *163 error. When the fact of marriage has been established by evidence, “the burden of persuasion on the issue of invalidity is on the party asserting such.” 2 Brandis, N.C. Evidence § 244 (2d rev. ed. 1982). And even if a party’s insanity is proved to be of such a chronic nature that it is presumed to continue, it does not shift the burden of the issue. 2 Brandis, N.C. Evidence § 238 (2d rev. ed. 1982). The plaintiff had the burden of proof on Mr. Geitner’s capacity to contract a valid marriage. The rest of plaintiffs assignments of error concern the admissibility of certain evidence. Several of these assignments of error concern testimony to the effect that Mr. Geitner had the capability to understand the nature of marriage. We note that both expert and lay witnesses may testify as to mental capacity or condition under an exception to the rule that a witness may not give an opinion on the very question for the jury to decide. 1 Brandis, N.C. Evidence § 126 (2d rev. ed. 1982). We hold that since the testimony complained of by plaintiff was based on the' witnesses’ observations and reasonable opportunities to form opinions as to Mr. Geitner’s mental condition, there was no error in admitting this testimony. We have carefully examined the remaining assignments of error and find them to be without merit. No error. Judges Hedrick and Braswell concur.