Tanner v. Tanner, ___ N.C. App. ___, 789 S.E.2d 888 (2016)

Remanded in part
Vacated in Part

Vacated order to extent it addresses any issue other than joinder of necessary party; remand for hearing on substantive issues with all parties having notice and an opportunity to be heard

  • Facts:
    • 2012 husband transferred over $300K from his business account to his mother
    • 2013 complaint filed; answer and counterclaim filed
    • April 2014 defendant wife filed a motion requesting joinder of plaintiff’s mother (appellant) as a necessary party, a determination of ownership interest in the funds transferred to her, and the imposition of a restraining order to prohibit use of the funds
    • November 2014 hearing on motion for joinder, constructive trust, and restraining order; mother testifies at the hearing
    • January 6, 2015 attorney for appellant enters appearance in court action 
    • January 7, 2015, appellant's attorney objects to entry of an order from November 2014 hearing 
    • January 12, 2015, order entered joining mother as a party and imposing constructive trust with mother as trustee and a restraining order on the funds
  • In order that determines a claim in an action where necessary parties have not been joined are null and void [citing Rice v. Randolph, 96 N.C. App. 112 (1989)].  When it appears to the court that a necessary party is absent, the trial court may refuse to deal with the merits of the action until the necessary party is brought to the action. A court may correct this ex mero motu. [citing White v. Pate, 208 N.C. 759 (1983)]
  • At the November 2014 hearing, the court was only authorized to determine mother was a necessary party. The court should not have heard the merits of the motion prior to mother being joined as a party. By determining the merits of the motion before mother was made a party, mother was denied an opportunity to be heard as a party. At time of hearing, mother was only identified as a potential party, was not served with summons or any pleadings or notice of proceedings, was not represented by an attorney, did not consent to be added as a party or to proceed with the hearing on an issue that would affect her rights, and only participated as witness who had been subpoenaed to testify. 












Civil Cases with Application to Child Welfare
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