Tanner v. Tanner, 248 N.C. App. 828 (2016)

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.