• 2018 N.C. Legislative Changes Impacting Child Welfare

    The 2018 Legislative Session created and amended various North Carolina statutes affecting child welfare. Some of those changes are effective now and others at later dates. Here are the highlights. Continue Reading

  • Juvenile Reentry Second Chance Project

    I discussed in a previous post, You Need to Know More Than Just the Law, that it has become increasingly important for attorneys to be knowledgeable about non-legal issues that affect the lives of their clients. I cited examples of law offices working in multidisciplinary teams to meet the legal, social, health and economic challenges faced by clients. This blog post will highlight a new project aimed at reducing recidivism and increasing positive outcomes for youth through a multidisciplinary approach. Jennifer Story, Supervising Attorney for Advocates for Children’s Services, and Olivia McLaughlin, Juvenile Reentry Project Social Worker for the organization, presented the project to the juvenile defenders at the North Carolina Spring Public Defender and Investigator Conference in May 2018.

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  • In re A.P.: A County DSS Director’s Standing to File an A/N/D Petition Is Not as Limited as Previously Held by the Court of Appeals

    Last year, the Court of Appeals held that only a director (or authorized representative) of a county department of social services (DSS) where the child resided or was found at the time a petition alleging abuse, neglect, or dependency (A/N/D) was filed in court had standing to do so. In re A.P., 800 S.E.2d 77 (2017). Because standing is jurisdictional, when a county DSS without standing commences an A/N/D action, the district court lacks subject matter jurisdiction to act. Id.; see my earlier blog post discussing this holding here. This holding had an immediate impact on A/N/D cases throughout the state. Because subject matter jurisdiction can be raised at any time, both new and old cases were dismissed either through a voluntary dismissal by DSS or a motion to dismiss filed by another party in the action. After dismissal, new petitions for these same children were filed, sometimes after a child was transported to a county for the purpose of giving the county DSS director standing to commence the action. The North Carolina Department of Health and Human Services (DHHS) notified county DSS’s that the holding in In re A.P. superseded DHHS policy on conflict of interest cases, recognizing that contrary to the policy, a county DSS with a conflict may be the only county DSS with standing to file an A/N/D action after a partner DSS determines there is a need to file a petition because of abuse, neglect, or dependency. See CWS-28-2017.

    Last month, the North Carolina Supreme Court reversed the Court of Appeals holding, stating the statutory interpretation was too restrictive and contrary to children’s best interests. In re A.P., 812 S.E.2d 840 (2018).   Continue Reading

  • More than the Budget: Estate and Power of Attorney Changes Circulating at the Legislature

    In all of the hustle and bustle of news related to the budget, you may have missed a bill filed that impacts law regarding estates and powers of attorney.  Below are just some of the changes that would occur if Senate Bill 778 becomes law.  You can follow along with the progress of this bill here.   [Note, House Bill 1025 includes some of the changes in SB 778 related to powers of attorney as indicated below; HB 1025 does not include the living probate, estate administration, or electronic wills changes described in this post. You can follow along with the progress of HB 1025 here.] Continue Reading

  • A Judgment for Possession Is Only Step 1 in Summary Ejectment Cases

    Most small claims actions in North Carolina are for summary ejectment:  an action by a landlord asking the court to terminate the lease of a breaching tenant and award possession to the landlord. In residential leases, landlords are prohibited by law from “self-help” evictions – i.e., forcibly removing a tenant and his property, padlocking the premises, or rendering the premises uninhabitable by cutting off electricity or water. GS 42-25.6. The magistrate’s role in summary ejectment ends when the magistrate makes a decision (enters judgment). But for the landlord, a favorable judgment is simply the first step in a lengthier and more complicated process.

    Consider the following scenario: Laura Landlord wins her summary ejectment action against Tommy Tenant. The magistrate announces a decision in Laura’s favor and completes a written judgment form. With a copy of the written judgment in hand, Laura might understandably assume that Tommy must immediately vacate the property, but that is not the case. That written judgment is not the piece of paper she needs to oust Tommy. The value of the judgment is that it entitles Laura to ask the clerk to issue a writ of possession directing the sheriff to remove Tommy. But that’s not going to happen tonight – or tomorrow. First, we must wait to see whether Tommy appeals the magistrate’s judgment. Continue Reading

  • Due Process, Hearings, and Concealed Handgun Permits

    To legally carry a concealed handgun in North Carolina, a person must receive a permit from the county sheriff.  When considering an application for a permit, the sheriff is required to apply the criteria set out in G.S. 14-415.12.  Among other requirements, the applicant must be at least 21, must be a citizen or lawful permanent resident of the U.S., and must have successfully completed an approved firearms training course.  Several other factors also prevent the sheriff from issuing a permit to an applicant, such as the applicant’s ineligibility to possess a firearm under Federal law, conviction of a felony, adjudication of mental illness, or discharge from the military under less than honorable conditions.  Also, quite sensibly, one of the requirements for issuing a permit is that the applicant “does not suffer from a physical or mental infirmity that prevents the safe handling of a handgun.”  If none of the statutory restrictions applies, and the applicant otherwise meets all of the criteria, the sheriff “shall” issue the permit.  G.S. 14-415.12.

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  • Intervention in Custody and Child Support Cases

    It is not uncommon for third parties to assert rights or claims against parents litigating child custody and child support. For example, grandparents frequently want the court to grant them visitation rights as part of a custody order resolving a dispute between the child’s mother and father. Similarly, the IV-D child support enforcement agency or a non-parent who has been caring for a child often need to assert rights or claims in child support cases pending between the child’s parents.

    Before these people can assert claims or rights in an existing case, they must become parties to the case through the process of intervention.

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  • More on Gifting Authority under the North Carolina Uniform Power of Attorney Act

    I previously wrote about an agent’s authority to make gifts under the new North Carolina Uniform Power of Attorney Act (NCUPOAA) that went into effect in North Carolina on January 1, 2018.  There are two additional points to keep in mind if you are an agent, a third party, or a court examining the agent’s authority granted by the principal to make gifts under a POA. Continue Reading

  • And Now a Two-Step: Eliminating Reunification as a Permanent Plan in an A/N/D Proceeding

    First came the cease reunification efforts shuffle resulting from 2015−2017 statutory changes to the NC Juvenile Code and published appellate decisions interpreting those changes (see my last blog post, here). And now, In re C.P., ___ N.C. App. ___ (March 6, 2018) has created the elimination of reunification as a permanent plan two-step. Continue Reading

  • Don’t Try This at Home: Self-Help Evictions

    A magistrate once told me that the advice given to members of the public by many law enforcement officers and courthouse personnel may be summarized as ATM: Ask the Magistrate. The locations of magistrates’ offices, unlike those of judges, are known to the public, and their doors are — if not actually open – at least accessible. Their telephone numbers are publicized, and when the public calls, that call will be answered by a magistrate. So it’s not surprising that magistrates spend a significant amount of time interacting with citizens seeking legal assistance, walking that fine line between helpfully providing legal information and carefully refraining from giving legal advice. While the questions a magistrate may be asked on any given day are likely to vary over a truly amazing range of topics, there are a few subjects that come up all the time. One of them – the subject of this post – has to do with whether and under what circumstances a landlord may lawfully force a tenant to vacate rental premises—a practice commonly referred to as self-help eviction. Continue Reading

  • Pleading med mal: Rule 9(j), res ipsa loquitur, and a new Court of Appeals opinion

    Rule 9(j)’s special pleading requirement

    Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other types of negligence suits.  The plaintiff must allege that the medical care and records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care.  The rule is very strict, and if a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.”  See, e.g., Vaughan v. Mashburn, 795 S.E.2d 781 (N.C. App. 2016) (acknowledging the harshness of the result).

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  • Separation and Property Settlement Agreements: When does breach by one party excuse performance by the other?

    Father files a complaint alleging mother breached terms of an agreement by not paying alimony and child support. Mother admits she has not paid but argues that she should not have to pay because dad consistently has failed to comply with the custody provisions of the agreement by refusing to allow her to see the children and has repeatedly violated a provision in the agreement that he would not harass her.

    Can father enforce the contract against mother if mother proves he also breached the contract? Does his breach excuse mother’s performance? Continue Reading

  • GiveUNC: A Message from the Dean

    Today is the UNCGive Campaign. Please consider making a donation in support of the work we at the School of Government do (for example, this blog). Below is a message from our Dean. 

    Whether you attended classes at the UNC School of Government, consulted with our faculty, or used our books and blogs—we exist because of you.

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  • Social Services Working Group

    [This post is co-authored with my colleague, Margaret Henderson]. It was originally posted on the Coates’ Canons: NC Local Government Law blog on March 29, 2018 but is relevant to readers of On the Civil Side as well.

    In 2017, the North Carolina General Assembly established the Social Services Regional Supervision and Collaboration Working Group (SSWG) and directed it to develop recommendations related to the social services system (see legislative summary here). The legislation directed the UNC School of Government to convene the group, facilitate the meetings, and provide staff support to the project.

    The SSWG’s work is divided into two stages. The group just released the final report for Stage One and is scheduled to present its recommendations to the legislature on April 10, 2018. Stage Two will get underway in May. All of the meeting materials, minutes, and recordings are available online.

    There have been quite a few different conversations about social services system reform over the last year or so. As a result, there has been some confusion about the role of the SSWG. This blog post is intended to shed some light on the group’s charge and connect some dots between the work of the SSWG and other elements of system reform that are underway. Continue Reading

  • Third Party Refusals to Accept a Power of Attorney under the New North Carolina Uniform Power of Attorney Act

    Mary signs a power of attorney (POA) appointing her son, Frank, as her agent authorized to act on her behalf.  The POA is acknowledged by a notary public and states that the agent has the authority to do all acts that the principal could do.  The POA is effective immediately and durable by default under the new North Carolina Uniform Power of Attorney Act (NCPOAA) effective January 1, 2018.   S.L. 2017-153 (S569) (not applicable to health care POAs or consent to health care for a minor under G.S. Chapter 32A).

    Months later, Mary suffers a massive stroke and is no longer able to manage her property or business affairs because she is unable to make or communicate decisions.  Frank retrieves the original POA from Mary’s safe and takes it to the bank and attempts to withdraw money from Mary’s checking account to pay some of her bills.  The bank refuses to accept the POA and conduct the transaction.  A friend of Frank’s notes he had a similar problem with his father’s POA.  He had to ultimately seek court-ordered guardianship of his father to be able to conduct the necessary transactions on his father’s behalf because of the bank’s refusal to accept the POA.   Is Frank stuck because of the bank’s refusal?  Must he obtain guardianship to be able to carry out his duties under the POA on behalf of Mary?

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  • Fairness in the Marketplace Matters in Small Claims Court

    Small claims magistrates don’t see many lawsuits filed by individuals alleging injury from unfair or deceptive acts (hereinafter, UTP[1]) by persons with whom they’ve done business — but they should. A primary purpose of GS 75-1.1, the relevant statute, is to provide a remedy for consumers injured by unethical or improper behavior in the marketplace, even when the dollar amount of the injury suffered is relatively small. Proving a right to relief under GS 75-1.1, unlike many consumer protection statutes, is simplicity itself, often requiring an injured plaintiff to do little more than relate his story in a clear and persuasive manner. Compared to small claims cases requiring magistrates to interpret and apply multiple statutes in the light of often complicated case law, the straightforward legal principles applicable to UTP cases make them ideal for determination in small claims court. In this blog post, I’ll take a quick look at some of the common procedural issues related to this claim in small claims court, review the general legal principles governing these actions, and briefly discuss case law involving GS 75-1.1 in the context of residential lease agreements.

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  • Appointment of a GAL Starts the Clock on a Minor’s Med Mal Action

    Earlier this month the North Carolina Supreme Court issued its opinion in King v. Albemarle Hospital Authority, holding that a GAL appointment starts the running of the statute of limitations for a minor’s medical malpractice claim. During her birth in 2005, the plaintiff, Desiree King, suffered a severe brain injury. In 2008, just under three years later, a medical malpractice action was filed on her behalf by the guardian ad litem (GAL) who had been appointed for her earlier the same day pursuant to Rule of Civil Procedure 17(b).  A few months later, the GAL voluntarily dismissed the action without prejudice as permitted by Rule 41(a).  Instead of refiling Desiree’s action within one year as Rule 41(a) allows, the GAL refiled in 2015, about six years later.  On the hospital’s motion, the trial court dismissed Desiree’s action as time-barred.

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  • Civil Contempt and “Springing” Orders for Arrest

    The following post was written by Daniel Spiegel, a North Carolina Assistant Appellate Defender. It addresses the legality of a purge condition frequently imposed in civil contempt orders entered in child support enforcement proceedings across North Carolina.

    This is a very important topic. Please share your thoughts and reactions.

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  • The Cease Reunification Efforts Shuffle in A/N/D Actions: It’s All about the Timing

    NOTE: Since this post was published, S.L. 2018-86 was enacted effective for all initial disposition orders that are effective on or after June 25, 2018. G.S. 7B-901(c) has been amended to add the word “determines” and supersedes the holding of In re G.T., ___ N.C. App. ___, 791 S.E.2d 274 (2016), aff’d per curiam, 370 N.C. 387 (2017). 2018 legislative summaries impacting child welfare are discussed here.

    Abuse, neglect, or dependency court proceedings have several different stages, one of which is the dispositional stage. The dispositional stage, which occurs only after a child has been adjudicated abused, neglected, or dependent, has several different types of hearings: initial, review, and permanency planning. During the various dispositional hearings, a court may address reunification efforts, which involve the diligent use of preventive or reunification services by a DSS when a child’s remaining in or returning to the home of a parent is consistent with achieving a safe permanent home for the child within a reasonable period of time. See G.S. 7B-101(18). How a trial court may address reunification efforts, including whether to relieve DSS from making those efforts, differs depending on the type of dispositional hearing. That is what the reunification efforts shuffle is all about. Continue Reading

  • To Amend or Not Amend, That is the Question

    I recently taught in a course for clerks on proceedings involving minors.   One of the sessions related to proceedings to establish facts of birth set forth in G.S. 130A-106 and G.S. 130-107.  Both proceedings are discussed in more detail in Chapter 141 of the NC Clerk of Superior Court Procedures Manual.  The session was included on the course agenda in part to highlight the areas where clerks have jurisdiction to enter judgments and orders related to facts of birth and where clerks do not.   The two proceedings set forth in G.S. 130A before the clerk provide a mechanism for a person born in NC, whether an adult or a minor, who does not have a recorded birth certificate (G.S. 130A-106) or has unknown parentage and unknown place and date of birth (i.e. the person was abandoned at birth) (G.S. 130A-107) to obtain a judgment from the clerk establishing facts of birth.   If the clerk enters a judgment, the clerk then (i) certifies the judgment to the State Registrar, a person appointed by the Secretary of NC Department of Health and Human Services to run NC Vital Records, and (ii) sends a copy to the local register of deeds.

    These proceedings are different from a proceeding where a person has a birth certificate and wants to change information on the existing birth certificate.  Essentially, the person is seeking to obtain an amended birth certificate because information on the birth certificate is incorrect or new information is known such as the person’s parentage. People often end up in the clerk’s office seeking an order to amend a birth certificate because they have been told by Vital Records in Raleigh or a local register of deeds that a court order is needed for the State Registrar to amend the birth certificate. Continue Reading

  • File Under ‘Boring But Important’: Counting Time in Small Claims Court

    Small claims magistrates know that the small claims statutes are filled with rules about time limits. For example, small claims cases must be calendared for trial within 30 days of the complaint being filed, but summary ejectment actions must be calendared within seven (excluding weekends and holidays). A defendant must be served no later than five days before trial in all small claims actions other than summary ejectment, which requires only a two-day notice. The list goes on. Magistrates often ask about how to calculate these various time periods and the purpose of this post is to provide information about that often confusing task.

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  • A Special Thank You to Judges Hobgood, Davis, Doughton, and Beal

    Friday night I had the privilege of joining a dinner to honor four retiring (or recently retired) superior court judges who have devoted many years of extraordinary service to the Pattern Jury Instructions Committee.  The North Carolina Pattern Jury Instructions—those enormous volumes providing instructions on all manner of criminal, civil, and motor vehicle issues—are continuously updated through the hard work of a committee of ten trial judges.  Every month these judges pore over the details of new legislation and appellate opinions, and they sacrifice many weekends each year traveling to the School of Government to craft instructions that best reflect current law.  The time commitment is, as they say, “no joke.”

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  • New Juvenile Justice Resource at the Administrative Office of the Courts

     The Office of General Counsel of the North Carolina Administrative Office of the Courts (NCAOC) provides advice and counsel to judicial officials and other NC Judicial Branch employees. They do not provide legal advice to the public or to litigants on either side of a court case. In addition to providing legal counsel, the Office of General Counsel assists Judicial Branch committees, task forces and work groups with the development and management of procedures, programs, and strategies that support the judicial community. They also review, monitor, and summarize legislative bills.

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  • New Abuse, Neglect, Dependency, and Termination of Parental Rights Resources

    I am so happy to announce the availability of the 2017 Manual — Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina.

    What’s In It?

    This Manual provides easily accessible information about the laws, procedures, and concepts related to abuse, neglect, dependency, and termination of parental rights proceedings in North Carolina. The primary intended audience consists of district court judges, social services attorneys, parents’ attorneys, and guardian ad litem attorney advocates who work in this area of the law.

    This 2017 edition is a significant revision of the previous edition (2015) and contains hundreds of pages of new content. It includes changes made to the Juvenile Code by the North Carolina General Assembly in the 2015, 2016, and 2017 sessions as well as appellate decisions published through October 1, 2017. The new content discusses a variety of topics including mandatory concurrent permanency planning, cessation of reasonable efforts and the elimination of reunification as a permanent plan, medical decision-making for a child placed in DSS custody, the reasonable and prudent parent standard, and Foster Care 18−21.

    There are nine new checklists that supplement the chapter content and incorporate the legislative changes that apply to the various hearings in abuse, neglect, dependency, and related termination of parental rights proceedings. Before you bypass the chapters to get to the checklists, explore the Manual to see what is in there. Continue Reading

  • Military Disability Pay: It’s not marital property but it is income

    In an opinion issued yesterday, the NC Court of Appeals reaffirmed that while military disability pay cannot be distributed by a court in equitable distribution, it is income that can be considered when the trial court is looking for a source of payment for a distributive award. Lesh v. Lesh, NC App (Jan. 16, 2018). In reaching this decision, the court rejected the argument that this rule was changed by the recent decision by the US Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017), wherein the Court reiterated that federal law prohibits the distribution of  military disability in equitable distribution.

    Lesh and Howell present a good opportunity to review the law regarding military disability pay in domestic relations cases.

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  • New Legislation Applicable to Attorneys Serving as Trustees in Chapter 45 Foreclosures

    A trustee in a power of sale foreclosure has a fiduciary duty to both the debtor and the creditor.  In re Foreclosure of Vogler Realty, Inc., 365 N.C. 389, 397 (2012).  The trustee must be impartial in the performance of his or her duties as a disinterested third party and may not give an unfair advantage to one party to the detriment of the other.  Id.  See also In re Foreclosure by Goddard & Peterson, PLLC, 789 S.E.2d 835, 841 (2016); In re Foreclosure of Real Property for $143,600.00, 156 N.C. App. 477, 483 (2003).  This duty is recognized in G.S. Chapter 45, which requires that the notice of hearing include a statement that the trustee is a neutral party and, while holding that position, may not advocate for the creditor or the debtor in the foreclosure proceeding.  G.S. 45-21.16(c)(7)(b).

    A trustee may be held liable for breach of fiduciary duty through a civil action brought in district or superior court.  See Goddard, 789 S.E.2d at 841.  If the trustee is an attorney or represented by an attorney, then the attorney also may be subject to sanctions by the N.C. State Bar for violating the N.C. Rules of Professional Conduct.  This includes Rule 1.7(a) which prohibits the common representation of multiple clients if the representation involves a concurrent conflict of interest.  A number of ethics opinions drafted by the Ethics Committee of the State Bar provide guidance to an attorney serving as or representing a trustee in a power of sale foreclosure.  See CPR 94; CPR 166; CPR 201; CPR 220; CPR 297; CPR 305; RPC 3; RPC 64; RPC 82; RPC 90; 2004 FEO 3; 2008 FEO 11; 2011 FEO 5; 2013 FEO 5; and 2014 FEO 2.

    A new law, Session Law 2017-206, went into effect on August 30, 2017 codifies a number of these opinions. The law contains a modification and addition to G.S. Chapter 45-10 and directly applies to those situations in foreclosure proceedings where an attorney is serving as the trustee.  This post will give some preliminary thoughts on the new law as well as briefly discuss some of the related ethics opinions.  For a more detailed review and application to a particular case in your practice, I would recommend reviewing the full ethics opinions cited herein.

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  • New Law: Who Can Appear on Behalf of a Party in Small Claims Court and on Appeal?

    In a previous post I talked about the law related to who can appear on behalf of a party in a small claims case. To briefly reiterate, small claims law makes two exceptions to the general rule requiring parties to be represented by an attorney if they do not choose to represent themselves. One exception allows corporations to appear in small claims court through an agent. See Duke Power Co. v. Daniels, 86 NC App 469 (1987).  The other exception, applicable only in summary ejectment actions, allows agents with actual knowledge of the relevant facts to sign the summary ejectment complaint and (presumably) represent the plaintiff/owner in the small claims action. See GS 7A-216 and 7A-223. Both exceptions are well-established and reasonably straightforward, subject to a few somewhat uncertain points I addressed in my previous post.

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  • “To Effectuate a Decision Already Made”: The Role of a Substitute Judge Under Rule 63

    Imagine this scenario: Judge A had a busy civil calendar before leaving for vacation.  Although all the hearings are complete, the judge did not make rulings on some issues.  As to a couple of other matters, the judge announced her intended rulings in court but did not enter orders, some of which will require written findings of fact. Sadly the Judge fell very ill during vacation, will not be able to resume her duties on the bench, and will soon retire due to disability. Will another judge be able to complete the work Judge A started?

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  • The Authority to Make Gifts under the New North Carolina Uniform Power of Attorney Act

     

    The new North Carolina Uniform Power of Attorney Act (the Act) goes into effect on January 1, 2018.  I recently blogged about the judicial relief provisions under the Act here.   Next Tuesday, December 12th from noon to 1:15 pm, the School of Government in partnership with the N.C. Administrative Office of the Courts will be offering a free webinar on this new law.  The Honorable James Stanford, Clerk of Superior Court, Orange County, Allison Smith, NCAOC assistant legal counsel, Janice Davies, an attorney with Davies Law, PLLC, and I will be presenting. Anyone can register for the webinar here.  Note, registration closes tomorrow at noon. Continue Reading

  • Domestic Violence: Recent Changes to Chapter 50B

    The North Carolina General Assembly recently made two important changes to Chapter 50B regarding civil domestic violence protective orders. S.L. 2017-92, “Domestic Violence Appeals and Modifications”, was effective October 1, 2017.

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  • Pleading Waiver of Governmental Immunity: What’s Enough?

    In lawsuits against units of local government, the general rule is that the trial court must throw out the plaintiff’s claims if the unit raises the defense of governmental immunity and the complaint fails to allege a waiver of that immunity.  This blog post looks at how detailed a waiver allegation must be for a complaint to survive an assertion of governmental immunity.

    The Concept of Waiver

    As I’ve explained in prior blog posts (here, here, and here), the defense of governmental immunity protects cities, counties, and other units of local government from civil liability for negligence and other claims – though not constitutional claims – that arise from the performance of governmental functions.  The courts have recognized that a unit may waive this immunity through any of the three actions described in the next section.  Essentially, by acting in any of those ways, a unit consents to be sued for any civil claims that fall within the scope of the waiver. Continue Reading

  • Multidisciplinary Evaluations in Incompetency and Adult Guardianship Proceedings: The Final Report

    We have a new report available at the School of Government (SOG) for your weekend reading.  The report is titled Multidisciplinary Evaluations Assembled by LME/MCOs in Adult Guardianship Proceedings in North CarolinaContinue Reading

  • The Juvenile Court Counselor’s Role As Gatekeeper

    With the passage of “Raise the Age” legislation this year, juvenile justice officials, the court system, law enforcement agencies, and various other state officials are busy planning and preparing for the implementation of this major policy change which will become effective December 1, 2019 (see this prior blog post). One of the issues raised by juvenile court counselors is whether their authority to approve juvenile petitions will be impacted by the mandatory transfer to adult court of 16 and 17-year-olds who commit Class A-G felonies. The short answer is no. Here’s why.

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  • Consecutive Sentences for Criminal Contempt

    The following post was written by my colleague Jamie Markham and published on the North Carolina Criminal Blog on August 11, 2016.

    One of the first posts I wrote on this blog was about the punishment for criminal contempt. The post included a discussion about whether sentences for contempt could be run consecutively—something our appellate courts hadn’t yet ruled on at the time. In State v. Burrow, the court of appeals approved a trial court’s orders sentencing a defendant to six consecutive 30-day terms of imprisonment for contempt.

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  • Security Deposit Squabbles

    Once, when my son was seven and went to summer camp, I asked the camp counselor how he was doing. She said that he was doing fine, except that he had threatened to sue her for breach of contract when she changed her mind about whether he could dig up a (very large) rock he found. That wasn’t the first—or last—time I struggled to explain to my son that suing people is not the simple speedy solution to problems that he imagined. Small claims magistrates tell me that successful plaintiffs sometimes expect to recover the amount awarded from the defendant at the end of the trial. Certainly, many a plaintiff has been dismayed to learn that the trial is often merely the first of several steps necessary to collect money damages.

    Landlords are entitled to collect a security deposit in order to avoid the need to file a lawsuit for reimbursement for certain specific damages caused by a tenant’s breach. GS Ch. 42, Art. 6, the Tenant Security Deposit Act, regulates this practice in residential tenancies in an attempt to prevent certain unfair and deceptive acts historically associated with security deposits. In this post, I’ll explain the basics of the law and address a few of the most common questions asked about its application. Continue Reading

  • Equitable Distribution: Classification of a Lawyer’s Contingency Fee

    In the recent case of Green v. Green, (N.C. App., Oct. 3, 2017), the court of appeals held that a fee received by a lawyer as the result of the resolution of a case his firm took on a contingency basis before the lawyer separated from his wife was not marital or divisible property. The court based this decision on the fact that the lawyer did not receive the fee until after the date of separation and did not have a right to receive the fee on the date of separation because the agreement provided that no fee would be received if there was no recovery in the case. The appellate court reversed the trial court decision that a portion of the fee was ‘deferred compensation’ for work the husband performed before the date of separation. The trial court had classified this portion of the fee as divisible property pursuant to GS 50-20(b)(4)(b) which provides that divisible property includes property received “as the result of the efforts of either spouse during the marriage and before the date of separation.”

    This decision by the court of appeals is significant because it is the first time the court of appeals actually reviewed a decision by a trial court interpreting this particular category of divisible property and because the holding of the appellate court seems to say this category is much more limited than the language of the statute indicates. Continue Reading

  • Show Me the Money: Verification of Adequate Resources Required when Ordering Custody or Guardianship to a Non-Parent in an A/N/D Action

    If you’re a sports fan like me, you probably like sports movies. And if you like sports movies, you know the famous line from Jerry Maguire, “show me the money!” That line has some application to abuse, neglect, or dependency cases – specifically when a court is going to order custody or guardianship of a child who has been adjudicated abused, neglected, or dependent to a person who is not the child’s parent. The Juvenile Code requires that the court first verify that the proposed custodian or guardian “will have adequate resources to care appropriately for the juvenile.” G.S. 7B-903(a)(4), -906.1(j), -600(c).* Continue Reading

  • What Happens to Temporary Orders When a Case is Dismissed?

    Temporary orders are very common in domestic cases; ex parte domestic violence protective orders, temporary custody and child support orders, and orders for postseparation support are some examples. What happens to these temporary orders when plaintiff takes a voluntary dismissal of the underlying claim? Does the temporary order remain in effect until the court affirmatively sets it aside or does a voluntary dismissal automatically terminate all temporary orders? Do findings or conclusions made in the temporary orders have any impact on claims brought after the dismissal?

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  • The Clerk and Nunc Pro Tunc

    At the end of a hearing, the clerk who is the presiding judicial official orally announces (or “renders”) her decision from the bench in favor of the petitioner seeking relief from the court.  The clerk instructs the attorney for the petitioner to prepare an order with appropriate findings of fact and conclusions of law and to return the order to the court for review within two weeks.  The clerk receives the order from the attorney ten days later.  The clerk reviews the written order, makes a few changes to some findings of fact (remember, in the end it is the court’s order and not the attorney’s order who drafted it), and then signs and files it.  Next to the clerk’s signature on the order is the date the order is signed and the earlier date of the hearing along with the words “nunc pro tunc.”

    Does the clerk generally have the authority to enter an order nunc pro tunc?  What is the meaning of this phrase? What is the clerk’s authority to enter an order nunc pro tunc in these specific circumstances?  That’s the subject of today’s post.

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  • Incapacity to Proceed and Juveniles

    Two days ago, Franklin County prosecutors dismissed a murder charge against an 18-year-old male who allegedly admitted to decapitating his mother because “he felt like it.” The case made national headlines back in March when it was reported that the teen emerged from the home holding a butcher knife in one hand and his mother’s head in the other when officers arrived on the scene. According to this article, the trial court recently found that the teen lacked capacity to proceed after he was examined by mental health professionals at Central Regional Hospital in Butner. This post discusses what it means for a juvenile to lack capacity to proceed and why it not only bars a criminal prosecution, but also, prohibits delinquency proceedings against a juvenile.

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  • A lease is a contract, but………

    In my last post, I emphasized the contractual nature of a rental agreement. My main point was that the agreement between the landlord and tenant, whether oral or written, is where a small claims magistrate begins in a summary ejectment lawsuit. Often parties wrongly assume that some aspect of their mutual commitments “goes without saying.” In fact, a summary ejectment action is at its heart a breach of contract lawsuit, and the specific terms of the contract are the starting point in determining any dispute.

    While the lease is always the beginning point, the magistrate’s analysis must often go further than just the parties’ agreement. As I’ve previously discussed, landlord-tenant law is replete with special rules, some (mostly procedural) tending to favor the landlord and some (mostly substantive) tending to favor the tenant. The US Supreme Court has pointed out that these procedural advantages and consumer protections, viewed together, work to balance the legal scales related to this unique legal relationship. Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). This post highlights some of the many ways consumer protection legislation affects the residential contractual agreements between landlords and tenants. The discussion that follows is limited to that sort of agreement. Continue Reading

  • Child Support Modification: Yes, we’re still supposed to file a motion to modify

    In 2016, the court of appeals held that a voluntary support agreement that modified an existing child support order was void because neither party filed a motion to modify as required by GS 50-13.7. Catawba County ex. Rel. Rackley, 784 SE2d 620 (N.C. App. 2016). On September 29, 2017, the North Carolina Supreme Court reversed the court of appeals and held that the order was not void.

    This is important. Among other things, this decision means that if a court accepts a consent order for modification and the requirements of GS 50-13.7 have not been met, the consent order nevertheless is valid and enforceable. However, GS 50-13.7 still requires that a motion be filed and that the court conclude there has been a substantial change in circumstances before modifying a child support or a child custody order can be modified. The failure to comply with the statute is legal error that will support reversal by the court of appeals if there is a direct appeal.

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  • Choice of Law and Forum Selection in Business Contracts – New Law in North Carolina

    Contracts often include agreements stating how litigation will be handled in the event the parties have a dispute.  These agreements sometimes include “choice of law” and “forum selection” provisions.  In a choice of law provision, the parties specify that the contract will be interpreted according to the law of a particular state.  In a forum selection clause, the parties specify the State—and sometimes the specific county—in which disputes will be filed.

    These provisions generally are valid in North Carolina, but our courts have declined to enforce them in some specific circumstances.  This summer the General Assembly created a new Chapter 1G that attempts to remove these limits when parties choose North Carolina as the forum state and North Carolina law as the applicable law.  The new legislation only affects provisions included in business contracts.  It defines a “business contract” as “a contract or undertaking, contingent or otherwise, entered into primarily for business or commercial purposes,” and it explicitly excludes “employment contracts” and “consumer contracts.” See 1G-2(1), -5(1).  Chapter 1G became effective June 26, 2017 and it applies to business contracts entered into before, on, or after that date.  These are the main effects of Chapter 1G: Continue Reading

  • Parent Defender Training: Looking Back and Moving Forward

    The Indigent Defense Education group at the School of Government (SOG) in collaboration with Indigent Defense Services (IDS) held its 11th annual Parent Attorney Conference on August 10, 2017. Parent attorneys represent parents in abuse, neglect, dependency and termination of parental rights (A/N/D) proceedings.

    The conference includes three to four topics centered on a particular theme. It always includes an ethics session and a case law and legislative update. Examples of past themes are Representing Parents with Mental Health Disorders, Working with Non-Removal Parents, Representing the Chemically Dependent Client, and Defending Complicated Medical Cases.

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  • Equitable Distribution: Divisible Property and Burdens of Proof

    In my last post, I wrote about the marital property presumption and the significance of that presumption in the classification of marital property. Divisible property is not marital property, so the marital property presumption does not apply to help with the classification of property, value or debt acquired after the date of separation. So when there is evidence that marital property has increased in value between separation and the ED trial, does one party have to prove the cause of the increase before the court can distribute the increased value? Or, when one party has received income from a marital asset, like a rental house or an LLC, does one party have to prove that the income was not received as the result of the actions of a party before the court can divide the income between the parties?

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  • Ordering Restitution In A Juvenile Delinquency Case

    A district court judge may require a juvenile to pay restitution to a victim as part of the juvenile’s disposition. The court’s authority to order restitution depends on the juvenile’s disposition level and whether the amount of restitution is supported by evidence in the record. The restitution order also must be supported by sufficient findings of fact. This post outlines the required findings and other rules that apply to juvenile restitution orders.

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  • Which County DSS Files the A/N/D Petition: That Is the Jurisdictional Question!

    *SINCE THIS POST WAS PUBLISHED, THE N.C. SUPREME COURT REVERSED AND REMANDED THE COURT OF APPEALS DECISION DISCUSSED BELOW. A new blog post discussing the NC Supreme Court decision can be read here.

    Earlier this year, the North Carolina Court of Appeals published In re A.P., 800 S.E.2d 77 (2017), which held that the county DSS that had an open child protective case did not have standing to file a neglect and dependency petition. As a result, the district court did not have subject matter jurisdiction to hear the action, and the adjudication and disposition orders were vacated. Since In re A.P. was decided, there are lots of questions about when a county DSS has standing to file an abuse, neglect, or dependency (A/N/D) petition and what happens in conflict of interest cases requiring a case to be transferred to a different county DSS. Continue Reading

  • Domestic Violence Criminal Law and Procedure

    Written by School of Government faculty member John Rubin

    In getting ready for the North Carolina magistrates’ fall conference and a session that I’m teaching on issuing process in domestic violence cases, I began thinking about the ways that North Carolina criminal law addresses domestic violence. The North Carolina General Assembly has made numerous changes and additions in this area of criminal law, collected below. If I omitted some part of North Carolina criminal law involving domestic violence cases, please let me know.

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  • Equitable Distribution: The Marital Property Presumption

    Immediately following the definition of marital property in G.S. 50-20(b)(1), the statute states “[i]t is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection.” This presumption probably is the most important core principle of classification of property in North Carolina equitable distribution because it defines the burdens of proof. Continue Reading

  • Court of Appeals holds that “heart balm” claims are not facially unconstitutional

    North Carolina is among only a handful of states still recognizing the civil claims of alienation of affection and criminal conversation.  Known as the twin “heart balm” torts, these laws were devised long ago when women were regarded as a type of property and private morals were regular court business.  In short, these claims allow a person to sue his or her spouse’s paramour for money damages.  To prove “alienation of affection,” a plaintiff must show that the defendant wrongfully alienated and destroyed the genuine love and affection that existed between plaintiff and spouse.  (Although lovers typically are the target of these suits, a defendant could be another third person who has set out to create the rift.)  To prove criminal conversation, a plaintiff must show that the defendant had sexual intercourse with the plaintiff’s spouse in North Carolina during the marriage (but before separation).

    In the other states that have not yet swept them into the dustbin of history, these claims do not often make their way to court.  North Carolina appears to be one of only a couple of states in which they are filed regularly and sometimes result in substantial settlements and large verdicts. Continue Reading

  • Judicial Relief under the New GS Chapter 32C, the North Carolina Uniform Power of Attorney Act

    On July 20, 2017, Governor Cooper signed Session Law 2017-153 (S569) known as the North Carolina Uniform Power of Attorney Act (NCPOAA).  This new law goes into effect on January 1, 2018 and applies to powers of attorney (POA) in North Carolina.  It repeals provisions in GS Chapter 32A that pertain primarily to financial POAs, including the statutory short form POA in Article 1 and the enforcement provisions in Article 5.  It creates a new GS Chapter 32C.  It does not apply to POAs that grant authority to a person to make health care decisions for another person.  Article 3, health care POAs, and Article 4, consent to health care for a minor, under GS Chapter 32A continue to apply and are mostly unaffected by the NCPOAA.

    The NCPOAA adopts, in large part, the Uniform Power of Attorney Act published by the Uniform Law Commission (ULC).  In both the uniform law and the NCPOAA, there are sections on judicial relief.  As noted by the ULC, the purpose of this judicial relief is two-fold: (i) to protect vulnerable or incapacitated persons who grant authority to another under a POA against financial abuse, and (ii) to protect the self-determination rights of the principal.  Uniform Power of Attorney Act, Comment, Sec. 116.

    The judicial relief provisions as adopted in NC are heavily modified from the uniform law.  This is due in part to the fact that the judicial relief provisions under the NCPOAA specifically list proceedings that may be brought under the act and allocate jurisdiction over those proceedings between the clerk, who serves as the ex officio judge of probate in NC, and the superior or district court.  The distribution of jurisdiction under the NCPOAA among these judicial officials mirrors estate proceedings under GS 28A-2-4.  There are proceedings that are exclusively within the clerk’s jurisdiction, ones that are initiated before the clerk but may be transferred by a party to superior court, and then finally proceedings that are excluded from the clerk’s jurisdiction.  The NCPOAA also sets forth the procedures, standing, venue, and appeal rights for these proceedings.

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  • “Raise the Age” Is Now the Law in North Carolina

    North Carolina is no longer the only state in the U.S. that automatically prosecutes juveniles as adults beginning at age 16. In June, the General Assembly ended a century long practice of prosecuting teens as adults by enacting the Juvenile Justice Reinvestment Act as part of the 2017 state budget, which raised the age of criminal responsibility to 18. As a result, most 16 and 17-year-olds will be prosecuted in juvenile court beginning December 1, 2019. There are, however, some exceptions. Here’s what you should know about this historic reform. Continue Reading

  • Right to Counsel in Civil Contempt Proceeding for Violation of Custody Order

    When a court is considering whether to hold a party in civil contempt for the failure to comply with provisions in a child custody order, must the court inform that parent that he has the right to a court-appointed attorney if he wants an attorney and is unable to afford one?

    The court of appeals recently held that the answer to that question must be determined on a “case-by-case basis” with appointed counsel being required only “where assistance of counsel is necessary for the adequate presentation of the merits, or to otherwise insure fundamental fairness.”

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  • A Lease is a Contract

    Summary ejectment law is a complicated, confusing mishmash of modern-day consumer protection legislation, centuries-old property law, and plain old contract law, Getting in too deeply can lead to a person starting to throw around phrases like livery of seisin (a very old term from feudal England that basically required the old landowner to hand the new landowner a piece of dirt).  That slip into madness is not required. While there’s nothing intuitive about livery of seisin, we’ve all understood contract law since childhood. My six-year-old son once traded his 3-year-old sister two stuffed animals for lifetime rights in “the good chair.” In the complicated world of summary ejectment law, sometimes it’s useful to remember a simple truth: a lease is a contract. So let’s think about what we all know about contracts, and then apply that knowledge to leases. Continue Reading

  • Gag order? Punishment for talking about a case? Can a court do that?

    In an earlier post about high-profile trials, I touched on a trial judge’s authority to restrict photos, audio, video, and broadcast of all or parts of an open court proceeding.  To sum it up, the court has broad discretion to restrict dissemination of the proceedings in order to protect the integrity of the process. And under the right circumstances someone who violates the court’s directive can be punished.

    But what about another high-profile trial issue:  When may a judge prevent people from reporting on or talking publicly about the case?  Or punish a person for doing so? Continue Reading

  • DVPOs for Same-Sex Dating Relationships?

    This post is also published on the NC Criminal Law blog. 

    Domestic violence protective orders (DVPOs) are available to “persons of the opposite sex who are . . . or have been in a dating relationship,” and who are able to establish that the person that they are or were dating committed an act of domestic violence against them. Persons of the same sex who are or were in a dating relationship don’t have the same opportunity. Is that constitutional? The Supreme Court of South Carolina just addressed a related question, and its opinion suggests that the answer is no. Continue Reading

  • Local Government Lawyers: Take Care Asserting Governmental Immunity

    When a city, county, or other unit of local government is sued for negligence or other torts, it’s common practice for the unit’s attorney to file a motion asking the trial court to dismiss the lawsuit based on the defense of governmental immunity. (See blog posts available here and here for an explanation of governmental immunity fundamentals.)  Many local government attorneys believe that, if the trial court denies such a motion, the unit always has the right to an immediate appeal.  As a recent decision by the North Carolina Court of Appeals reminds us, however, whether the unit may immediately appeal can depend on how the immunity defense is framed in the motion.  This blog post aims to

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  • New Legislation Acknowledges Same-Sex Marriage

    In Obergefell v. Hodges, 135 S.Ct. 2584, 2607 (2015), the Supreme Court of the United States held “the Constitution … does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Citing this specific language from Obergefell, the Supreme Court again held in a more recent opinion that a state must “provide same-sex couples the constellation of benefits that the States have linked to marriage.” Paven v. Smith, 137 S.Ct. 2075, 2077-78 (2017).

    Acknowledging this clear mandate that the state treat same-sex marriages the same as opposite sex marriages and afford the same rights and responsibilities to all married couples, the North Carolina General Assembly enacted an important but easy to miss amendment to a seldom referenced statute as part of the voluminous 2017 Technical Corrections Bill.

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  • The Final Installment: Protecting Against Elder Abuse, Part Three

    Faith and Julie have been neighbors and friends for over twenty years.  They are both 75 years old and take daily walks together.  Julie was recently diagnosed with dementia.  Her daughter, Abby, lives a few hours away and is her general guardian, but rarely visits her mother.  Abby hired an in-home aide to assist Julie around the house.  When Faith tries to visit Julie during the day, the aide tells Faith that Julie is no longer up for visits from her or anyone else.  Faith noticed the aide often leaves for hours at a time during the day and locks Julie in the house while she is gone.  A mutual friend told Faith she recently saw Julie and the aide at an estate lawyer’s office and Julie mentioned she was changing her will.  Faith grows worried about Julie and calls Abby to express her concerns.  Abby is overwhelmed with stress in her own life and states that she trusts the aide, but will check in on her mother soon.  Faith doesn’t see Abby visit or any changes to the aide or the aide’s behavior.

    In my previous posts, available here and here, I described elder abuse generally and how adult protective services (APS) through the county departments of social services and guardianship proceedings before the clerk of superior court can be tools to protect against elder abuse, neglect, and exploitation (hereinafter, referred to as “abuse”).  However, just because someone has a guardian, it does not mean the risks of such abuse are eliminated.  In fact, guardians, such as Abby, often create circumstances for such abuse by leaving the adult in vulnerable positions and failing to monitor the adult’s care.  In addition, guardians may be the source of such abuse by taking advantage of and exploiting the authority they are given.  One recent report commissioned by the U.S. Senate Special Committee on Aging examined such abuse by guardians after growing concern of abusive practices by guardians.  The study concluded the extent of such abuse is unknown nationally due to limited data but there is some evidence that financial exploitation by a guardian is one of the most common types of elder abuse, which frequently includes the guardian overcharging for services that were either not necessary or never performed or misusing the adult’s money by incurring excessive dining and vehicle expenses.  See Elder Abuse Report, pg. 11 and 14.

    The risk of the abuse of an adult under guardianship may be mitigated by (i) court screening of potential guardians through criminal and financial background checks and guardian training or certification requirements, and (ii) court oversight after a guardian is appointed through the filing with the court of status reports, which are reports on the care, comfort, and maintenance of the adult, and accountings, which are reports on the financial affairs of the adult. Even with effective screening and oversight, abuse may still occur when someone has a guardian.

    So, what steps may someone, like Faith, who is concerned about abuse of someone under guardianship either by the guardian or a third-party take to protect the adult?   Continue Reading

  • SOG Resources for Civil Defenders

    In preparation for the upcoming parent attorney and juvenile defender annual conferences, I reviewed the list of resources and information that we provide for defenders. Our main resource is the Indigent Defense Education (IDE) page on the School of Government (SOG) website. It contains a list of upcoming programs and links to manuals and other resources for public defenders and private assigned counsel.

    While speaking with my colleagues and reviewing the SOG site, I realized there are a number of other resources and materials useful for public defenders and private assigned counsel. SOG faculty focus on specific areas of law and work with particular groups of government officials and others who work in that area of law. I decided in this post to share some of the SOG resources outside of IDE that may assist defenders in representing indigent clients in civil cases.

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  • New Legislation regarding Summary Ejectment

    Landlords often encounter a frustrating situation when they file a lawsuit for eviction and past due rent, resulting, ironically, from the interaction of two laws intended to benefit landlords. First, GS 42-29 requires the sheriff to expedite service of process by mailing the tenant the complaints and summons “as soon as practicable.” Within the next five days, and at least two days before the trial, the officer must visit the tenant’s home to attempt personal service. If no one answers the door when the officer knocks, the second special rule for summary ejectment cases kicks in, allowing the officer to simply post the summons and complaint on the door. Such “service by posting” allows the trial to go forward even though the tenant has not been personally served.

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  • Smartphones, YouTube, and criminal contempt

    Earlier this week, Anitra Burrows, a spectator at Bill Cosby’s sexual assault trial, was found guilty of contempt of court for posting recordings to YouTube of the closing arguments.  A Pennsylvania trial court judge sentenced her to 50 hours of community service for her actions.  She admitted she violated a court order, but apparently she had been willing to take the risk.  According to ABC News, she “viewed Cosby’s celebrated sexual assault trial as the ‘one time’ she might produce a viral online video.” Pennsylvania courts have some pretty strict rules about recording trials. For this high-profile case in particular, though, the court had also entered a specific decorum order barring any recording or any communication from any device within the courtroom.

    Of course, all this happened in the context of Pennsylvania court rules. So let’s look at whether a smartphone-wielding spectator in a North Carolina trial (civil or criminal) could be subject to a contempt order for similar behavior.  I believe the answer is yes, under the right circumstances. Continue Reading

  • Highlights of 2017 Legislative Changes Impacting Child Welfare Practice

    Since the initial publication of this post, the Governor signed H362. This post was amended on July 31, 2017 to reflect that change and reference the session law.

    The 2017 Legislative Session created and amended various statutes affecting child welfare. Some of those changes are effective now and others will become effective at later dates. This post highlights those amendments that directly impact practice in abuse, neglect, dependency, or termination of parental rights actions. A more complete summary of the numerous legislative changes can be found on the School of Government website, hereContinue Reading

  • What happens to a custody case when a party dies?

    When mom and dad are litigating custody, or when mom and dad have a custody order determining their custody rights with regard to each other, and one of them dies, it is not uncommon for another member of the deceased parent’s family to file a request to intervene in the custody case. Frequently, the motion to intervene is filed by a grandparent who wants to step into the place of the deceased parent and share custody or visitation with the surviving parent.

    Before we even reach the question of whether the court can award custody or visitation to a non-parent against the wishes of the surviving parent, we need to consider the procedural posture of the existing custody case. What is the impact of the death of a party on the pending case? What is the effect of the death on an existing custody order?

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  • Extended YDC Commitments and the 30-Day Notice Requirement

    Beginning at age 10, juveniles may be committed to the Division of Adult Correction and Juvenile Justice for placement in a youth development center (YDC), a locked residential facility that “provide[s] long-term treatment, education, and rehabilitative services” to delinquent youth. G.S. 7B-1501(29). When a district court judge commits a juvenile to a YDC, the judge must determine the maximum period of time the juvenile may remain committed before the Division must either release the juvenile or provide notice under G.S. 7B-2515 of its decision to extend the juvenile’s commitment to continue rehabilitative efforts. This post explains how to determine a juvenile’s maximum commitment period and the requirements for extending the commitment beyond this period.

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  • New Regulations Regarding Contempt in IV-D Child Support Cases

    Effective January 19, 2017, the federal Department of Health and Human Services (DHHS) adopted a final rule titled “Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs.” 81 Federal Register 93492 (Dec. 20, 2016). This rule mandates numerous changes to the policies and procedures of state child support enforcement programs, but one change of particular importance to state trial courts involves the use of contempt procedures to enforce child support obligations. According to the Comments to the new rules, the change in the federal regulations regarding the use of contempt is intended to ensure that the “constitutional principles articulated in Turner v. Rogers, 564 U.S. 431 (2011)[addressing the rights of obligors in child support contempt proceedings], are carried out in the child support program, that child support case outcomes are just and comport with due process, and that enforcement proceedings are cost-effective and in the best interest of the child.” 81 FR at 93532.

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  • Is it too late to seek Rule 11 sanctions?

    As every North Carolina litigator should know, Rule 11 of the Rules of Civil Procedure states that, by signing a pleading or “other paper” (motion, subpoena, etc.) related to the litigation, the attorney certifies that,

    to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

    If an opposing party decides that the paper violates one more of these requirements—legal sufficiency, factual sufficiency, or proper purpose—that party can move the court to impose “an appropriate sanction,” which may include attorney fees and other expenses.  Rule 11 does not, however, set a time limit for filing a Rule 11 motion.  So when is it too late?  I have been asked this question (or similar ones) a few times in recent months.  The short answer, of course, is that it depends on the facts.  But  I thought I would share the parameters I have observed from reviewing the case law: Continue Reading

  • More on Protecting Against Elder Abuse

    In my previous post, I discussed elder abuse and the court’s role in the protection of adults against such abuse through adult protective services (APS).   An incompetency and guardianship proceeding filed before the clerk of superior court under G.S. Chapter 35A is another mechanism that can be used to protect an older adult from elder abuse when the adult is incompetent.  Guardianship* is markedly different from APS, including the role the adult’s capacity plays in the proceeding, the permanency of the court order, the nature of the authority granted by the court, and who may file for court protection.  These distinctions can have a significant impact on the adult and are important to consider when deciding whether or not to file a guardianship proceeding before the clerk of superior court.

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  • A/N/D Reporting: Rights, Protections, and Prosecutor Review

    Like every other state, North Carolina has a mandated reporting law for child abuse and neglect. North Carolina’s law requires any person or institution with cause to suspect a child is abused, neglected, or dependent by a parent, guardian, custodian, or caretaker to make a report to the county child welfare department (in most counties, DSS) where the child resides or is found. GS 7B-301. What is in a report? Are there protections for the reporter? What are the rights of the reporter? If DSS decides not to initiate a court action, can the reporter challenge that decision? Continue Reading

  • More on Law Enforcement Involvement in Custody Cases

    More on Law Enforcement Involvement in Custody Cases

    In my earlier blog post, Ordering Law Enforcement Officers to Enforce a Child Custody Order, Jan. 15, 2016, I discussed North Carolina case law indicating that a trial court’s authority to order law enforcement to assist in the enforcement of a child custody order is very limited. The General Assembly recently enacted legislation to clarify that the warrant provision in GS 50A-311 is a tool available to trial court judges seeking to enforce North Carolina custody orders as well as orders issued in other states and countries.

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  • Protecting Against Elder Abuse

    The United Nations declared tomorrow as World Elder Abuse Awareness Day.  In North Carolina, Governor Cooper declared the time period spanning from Mother’s Day to Father’s Day Vulnerable Adult and Elder Abuse Awareness Month.  The Governor’s proclamation recognizes NC’s “vulnerable and older adults of all social, economic, racial, and ethnic backgrounds may be targets of abuse, neglect, or exploitation which can occur in families, long-term care settings, and communities.”

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  • Cohabitation is a Defense to Alimony

    N.C. Gen. Stat. 50-16.9(b) provides that “if a dependent spouse who is receiving postseparation support or alimony from a supporting spouse … engages in cohabitation, the postseparation support or alimony shall terminate.” In Setzler v. Setzler, 781 SE2d 64 (NC App., 2015), the court stated that “the primary intent in making cohabitation grounds for termination of alimony was to evaluate the economic impact of a relationship on a dependent spouse and, consequently, avoid bad faith receipts of alimony;” bad faith meaning a dependent spouse avoiding remarriage for the sole purpose of continuing to receive alimony. So if the relationship is such that one would expect the parties to be married, the assumption is the only reason they are not married is the desire to avoid the termination of alimony. For more on defining cohabitation, see my earlier post Alimony: Cohabitation is All About Money After All.

    Cohabitation clearly terminates an award of support. What if the dependent spouse is cohabitating or has cohabitated at the time she or he is asking the court for an award of postseparation support or alimony? Is cohabitation a defense to the establishment of a support obligation? Does it matter whether the dependent spouse still is cohabitating at the time of the support request?

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  • In the Matter of T.K.: Does a Student’s Use of Profanity in the Hallway Constitute Disorderly Conduct at School?

    Update: On June 5, 2017, the NC Supreme Court allowed the state’s motion for a temporary stay of the Court of Appeals’ opinion in T.K., which indicates that further appellate review is possible. Pursuant to NC Rules of Appellate Procedure 15(b) and 32(b), the state has until June 20, 2017, to file a petition for discretionary review of the Court of Appeals’ opinion.

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  • Marco Polo and Mobile Home Spaces

    When I was a child, sharing the backseat of a station wagon with my brother and sister on long summer road trips, we used to play the First Thing You Think Of word association game. You know the one, where your sister says Cold and you say Hot, as fast as you can. Salt and pepper. Marco? Polo! The only thing that’s really changed now that I’m grown up are the words. Mobile home space? If you thought 60 days, this blog is for you.

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  • Falls at the hospital: medical malpractice or ordinary negligence? Recent Court of Appeals opinions

    Why it matters: Rule 9(j) very briefly.

    Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care.  If a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions.  Rule 9(j) was enacted as an attempt to curb frivolous medical malpractice claims.  But it has had the side effect of generating more than its fair share of appellate wrangling.  Since it was enacted in 1995, well over 100 published opinions have been issued interpreting its undefined provisions, reconciling it with other procedural rules, and determining when it does and does not apply.  [See an overview here.]   One group of those opinions has examined whether the complaint actually alleged a “medical malpractice action” in the first place, or whether it merely stated a claim for ordinary negligence.  If a claim is ordinary negligence, Rule 9(j) does not apply, even if the event occurred in a medical setting and the defendant was a “health care provider.”

    Falling in a medical facility

    Patient falls–either from standing or lying positions—have featured somewhat prominently in these cases.  Where the court has concluded that the fall involved a provider’s clinical assessment or judgment, the claims have been classified as medical malpractice.  See Sturgill v. Ashe Memorial Hospital, Inc., 186 N.C. App. 624 (2007) (failure to restrain fall-risk patient where restraints required medical order); Deal v. Frye Reg. Med. Ctr, 202 N.C. App. 584 (2010) (unpub’d) (failure to conduct requisite fall risk screening); see also Littlepaige v. US, 528 Fed Appx 289 (4th Cir. 2013) (unpub’d) (failure to secure patient who had been placed on “falls precaution”). Continue Reading

  • Where Oh Where Could My Lost Will Be?

    You did your homework, made your estate plans, and executed your last will and testament.  However, after your death, your family or friends are unable to locate your original will.  They may have only a signed or unsigned copy or nothing at all.  Perhaps the original will was destroyed in a fire or lost in a move or a family member was told that the handwritten will wasn’t worth the paper it was written on and they tore it up and threw it away (true story) or your relatives simply are unable to find your original will (tip to friends and family – don’t forget to check the family bible or the freezer).

    In these situations, is all hope lost?  Will your property descend pursuant to intestate succession (i.e. to heirs according to State law) despite your careful estate planning?  Well, not quite.  It is possible to probate a lost or destroyed will in North Carolina upon certain proof to the court.   This process is not set forth in statute, but instead is derived from case law.   So where exactly does one seeking to probate a lost or destroyed will start?   Below are some key questions to consider when facing this situation. Continue Reading

  • What’s Social Media Got to Do with It?

    Every year when I convene North Carolina criminal defense investigators to plan their sessions for the annual spring public defender conference, I look forward to hearing about new ideas for sessions to include at the conference.  They repeatedly request social media topics. The light bulb did not come on for me until I attended the 2017 National Defender Investigator Conference in April. After three full days of plenary and breakout sessions, I realized that social media and the internet are essential training topics.

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Five, the Privilege Against Self-Incrimination

    Juvenile defenders, the court system, the governor, and other advocates recently celebrated a historic moment in juvenile justice. Monday was the 50th Anniversary of the In re Gault decision, which guaranteed juveniles the right to due process in delinquency proceedings. In honor of the event, this multiple part series on due process has explored the history of Gault and how it transformed juvenile court by ensuring that juveniles have the right to notice, the right to counsel, and the right to confrontation and cross-examination. This final post discusses the Fifth Amendment privilege against self-incrimination and the protection it provides to juveniles, assuming they understand what it means and know how to assert it.

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  • Bankruptcy and the Application of the Automatic Stay to Family Law Cases

    One does not have to be a bankruptcy specialist to be aware of the automatic stay provisions that go into effect immediately upon the filing of any type of bankruptcy proceeding. 11 USC sec. 362. Because the stay is extremely broad and prohibits the continuation or commencement of most legal proceedings against the debtor or the debtor’s property and because violation of the stay can lead to harsh sanctions against creditors and attorneys alike, most lawyers and judges are inclined to immediately stop litigating a case once they become aware that a bankruptcy case has been commenced by one of the parties.

    While that generally is an appropriate response, the federal law actually excludes a number of family law proceedings from the scope of the stay.

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  • Tick Tock: Mandatory Time Requirements to Enter A/N/D and TPR Orders

    Subchapter I of G.S. Chapter 7B (the Juvenile Code) governs child abuse, neglect, dependency, and termination of parental rights cases in North Carolina. The Juvenile Code “sets out a sequential process for abuse, neglect, or dependency cases, wherein each required action or event must occur within a prescribed amount of time after the preceding stage in the case.” In re T.R.P., 360 N.C. 588, 593 (2006). Included in the statutory time frames are the timing for entry of orders. What exactly does the Juvenile Code require? And, why does it matter? Continue Reading

  • Equitable Distribution: What is Property?

    In the recent case of Miller v. Miller, (NC App, April 18, 2017), the court of appeals held that a “Timber Agreement” was “too speculative” to be identified as a property interest in equitable distribution. The agreement between a husband and his cousin provided that husband would receive at some point in the future the value of timber growing on a specific track of land. Citing Cobb v. Cobb, 107 NC App 382 (1992), the court stated that the future value of timber that will not mature until many years after the trial should not be considered marital property or a distribution factor, since “characterizing growing trees as a vested property right is far too speculative,” and “an equitable distribution trial would become overwhelmingly complicated.”

    This case raises the interesting question of what exactly is the definition of “property” in the context of equitable distribution?

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  • Rule 58 and Entry of Civil Judgments: Statements from the bench are not court orders

    Before October 1, 1994, it was not always easy to tell if and/or when a court order or judgment had been entered. The law allowed entry of judgment based on an oral rendition by the judge in certain circumstances and it was not uncommon for disputes to arise over whether a proper notation of the rendition had been made upon the court record as required for an actual entry of judgment to occur. Because it generally is very important for parties and the court to know precisely when an order or judgment is entered and enforceable, Rule 58 of the Rules of Civil Procedure was amended effective October 1, 1994, to make the moment of entry of judgment more easily identifiable. According to Rule 58, “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” This means that since October 1, 1994, statements made by the judge from the bench are not enforceable orders or judgments and a judge is not required to enter a written order or judgment that conforms to any statement made from the bench.

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  • Equitable Distribution: Can the court order the sale of marital property?

    The duty of the trial court in an equitable distribution proceeding is to identify, value and distribute the marital and divisible property and debt of the parties. There is a presumption in favor of an ‘in-kind’ distribution of marital and divisible assets, meaning the law presumes the court will accomplish an equitable distribution by distributing the actual assets and debts between the parties rather than by distributing assets and debts to one and ordering the receiving party to pay the other a distributive award. Despite this presumption, however, distributive awards are common. The presumption in favor of an in-kind distribution is rebutted by evidence the property “is a closely held business entity or is otherwise not susceptible of division in-kind.” G.S 50-20(e).

    If the court can give all of the property to one and order that spouse to buy-out the other’s interest with a cash distributive award, can the court instead order that property be sold with the cash proceeds distributed between the parties? The answer to that question in North Carolina became less clear last week.

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  • New York Just Passed “Raise the Age” – Is North Carolina Next?

    On April 10, 2017, New York’s governor, Andrew Cuomo, signed legislation raising the age of criminal responsibility in the state of New York from 16 to 18. New York and North Carolina were previously the only two states that automatically prosecuted 16-year-olds as adults. Long-standing raise the age campaigns in both states have repeatedly failed due to conflicting views about the need to rehabilitate juveniles versus the need to maintain public safety. New York lawmakers recently reached a compromise that raises the age for most juveniles but still allows violent offenders to be tried as adults. A similar approach being considered by North Carolina lawmakers would raise the age of juvenile court jurisdiction to include 16 and 17-year-olds who commit misdemeanors and nonviolent felonies, but would exclude violent offenders. Here’s how NC’s raise the age proposal compares to NY’s new law.

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  • The Little Engine that Could: Article 27A, G.S. Chapter 1

    In my last post, I wrote about the office of the clerk of superior court and the clerk’s judicial authority.  I provided a basic framework for this authority and noted that that the clerk’s non-criminal authority falls into three main categories:

    1. estates and trusts,
    2. civil, and
    3. special proceedings.

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  • Small Claims Court: What’s the Fix When Things Go Wrong?

    North Carolina magistrates are not required to be lawyers, and most of them aren’t. Add to that the fact that most small claims litigants are not represented by attorneys and the stage is set for a challenging (and often entertaining) series of events that may not fit neatly into those rigid categories the law is so fond of. Make no mistake: this system is deliberate in design and for the most part it works quite well. Small claims court offers citizens a quick, inexpensive way to resolve their disputes, and appeals from small claims judgments by unhappy litigants are few. Errors—by litigants and by magistrates—are an expected part of this system, and the remedies for those errors are, also, deliberate in design. This, too, works well most of the time, but sometimes things can get a little confusing. I hope this post will help sort out that confusion.

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  • Attorney Fees in Child Custody Actions

    As I mentioned in an earlier post, parties to civil actions are responsible for paying their own attorneys’ fees unless a statute specifically permits fee shifting.  In child custody actions, G.S. 50-13.6 allows a court to shift some or all of one party’s fees to the other party under certain circumstances.  The statute provides that:

    In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.

    If the grounds for entitlement are met, awarding the fee is still in the court’s discretion, as is the amount awarded. Our courts have made clear, however, that fee orders will be remanded if they do not include specific findings of fact as to both entitlement and reasonableness. I discuss the required findings below.

    Policy.  The purpose of the fee-shifting provision in 50-13.6 is not to act as sanction against the party ordered to pay the other’s fees.  Instead, it is to help level the playing field for a party at a financial disadvantage in litigating custody of a child.  As our Supreme Court has said, the statute helps make it possible for a party “to employ adequate counsel to enable [him or her], as litigant, to meet [the other party] in the suit.” Taylor v. Taylor, 343 N.C. 50 (1996).  For this reason, fee eligibility does not depend on the outcome of the case. Fees are available even to a party who does not prevail, as long as he or she participated in good faith.  Hausle v. Hausle, 226 N.C. App. 241 (2013). Continue Reading

  • Collaboration at Its Finest

    Collaboration at Its Finest

    When I think of effective collaboration, I think of Kiesha Crawford, manager of the Juvenile CIP at the North Carolina Administrative Office of the Courts. She knows how to do it well. I love her “let’s figure out how we can make this happen” attitude.  While adhering to agency guidelines (which, with a federally funded program, are numerous), she is willing to step out of the box and strategize with partners to advance the mission of the program. Along with others at SOG, I have worked closely with Kiesha and seen her tenacity in action. CIP and SOG have been collaborating for several years to provide relevant training and resources for judges and lawyers working in the area of abuse, neglect, and dependency law.

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  • The Guardian’s Role in Health Care Decision-making

    A county director of social services may be appointed to serve as guardian for an adult who has been adjudicated incompetent by a clerk of superior court. Making decisions about health care, particularly end of life care, is often one of the most challenging issues a guardian may face. Sometimes, prior to being adjudicated incompetent, the adult may have expressed his or her wishes regarding some of these critical decisions. The adult may have discussed his or her wishes with family, friends or a doctor or possibly executed a health care power of attorney or living will. After the DSS director has been appointed guardian, what happens to those legal documents? How do they impact the DSS director’s authority and role as guardian?

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  • District Court Judges Go to Washington

    *This post was previously published on the School’s NC Criminal Law Blog on March 29th and we thought it would be of interest to our readers.

    A week ago, I sat in the gallery of the United States Supreme Court with twenty North Carolina district court judges listening to Chief Justice John Roberts announce the court’s opinion in Endrow v. Douglas County School District. The unanimous opinion, in which the court reversed the Tenth Circuit’s holding that a child’s Individual Education Plan (IEP) satisfies federal law as long as it is calculated to confer an educational benefit that is “merely more than de minimis” quickly became the topic of questioning later that morning in the confirmation hearing for Supreme Court nominee and current Tenth Circuit Judge Neil Gorsuch. Listening to the Chief Justice explain the court’s reasoning was fascinating, and it was thrilling to have a bird’s eye view as the news traveled through the city and the nation. This experience was just one part of the North Carolina Judicial College’s inaugural Supreme Court Seminar for district court judges, which gave some of our state’s most experienced jurists an opportunity to consider the role of the nation’s highest court and the rule of law in our democracy, and to reflect upon their own judicial role.

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  • Equitable Distribution: Change to Federal Law Regarding Military Pensions Part 2

    In my last blog post, I wrote about a recent change to federal law regarding the portion of a military pension subject to division by a state court in a divorce proceeding. Effective December 23, 2016, the definition of disposable retired pay in the context of a division of a military pension in a marital dissolution proceeding found in 10 USC sec. 1408 was amended to be the amount a service member would have received had he retired on the date of divorce plus cost of living adjustment accruing between the date of divorce and the date of actual retirement. Before amendment, the definition of disposable retired pay was the total amount a service member receives upon actual retirement, regardless of whether that amount reflected years of service and elevations in rank of the service member following the date of divorce.

    The change in the definition of disposable retired pay does not appear to impact the way we classify and value a military pension under North Carolina equitable distribution law, but the change does raise issues regarding how military pensions actually are divided between the parties when the fixed percentage, deferred distribution method of division is used.

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  • Show Me the Statute: The Office and Judicial Authority of the Clerk of Superior Court

    I often get asked what I do here at the School of Government.  My work focuses on the areas of law where clerks of superior court exercise judicial authority.  This response often elicits confusion – especially for people who work outside the NC court system.  The next question is inevitably – clerks are judges?  Well, the short answer is yes.   In addition to carrying out the more traditional roles of a courthouse clerk, such as record-keeper, administrator, comptroller, and supervisor, the clerks of superior court of North Carolina also serve as judicial officials.  This is unique to North Carolina.  I am not aware of any other state where clerks carry out such a significant, if any, judicial role.  So just who is the clerk of superior court and what are the areas of the clerk’s judicial authority?  I thought I’d use this post to go over some of the highlights. Continue Reading

  • Who Can Appear on Behalf of a Party in Small Claims Court?

    Established law in North Carolina, and throughout the country, provides that parties to a lawsuit may represent themselves or be represented by an attorney. Representation by anyone else is generally prohibited as the unauthorized practice of law. GS 84-4. In small claims court, there are two exceptions to this general rule, and the specifics about how, whether, and when those exceptions apply are a frequent source of questions that appear in my email in-box. Let’s see if we can find a calm, clear space in that jungle!

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  • Do I Need to Include Findings of Fact in this Order?

    When must a civil order include specific findings of fact and conclusions of law?  Some types of orders must always include at least some findings; some orders need only include them if a party asks for them; and for other orders, findings of fact are inappropriate whether requested or not.  Rule 52 of the North Carolina Rules of Civil Procedure gives us the core rules, but exceptions and clarifications abound.  And, of course, some types of orders are governed by separate, more specific statutes.  Here are the fundamentals: Continue Reading

  • Applying UCCJEA Temporary Emergency Jurisdiction in A/N/D Cases

    The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) is a set of uniform laws adopted by every state but Massachusetts*.  One key purpose of the UCCJEA is to “provide a uniform set of jurisdictional rules and guidelines for the national enforcement of child custody orders.” In re J.W.S., 194 N.C. App. 439, 446 (2008) (emphasis added); see GS 50A-101 Official Comment. The UCCJEA defines when a court has subject matter jurisdiction of a child custody proceeding, which includes abuse, neglect, and dependency actions (A/N/D). See GS 50A-102(4). In North Carolina, the UCCJEA is found at GS Chapter 50A. Under the UCCJEA, there are different types of jurisdiction: initial (the first custody order concerning a child), modification (when there is a previously issued order), and temporary emergency jurisdiction. GS 50A-201 through -204. The focus of this post is temporary emergency jurisdiction. Continue Reading

  • A Juvenile’s Request for a Parent During Custodial Interrogation Must Be Unambiguous

    In December, the North Carolina Supreme Court filed its long-awaited opinion in State v. Saldierna, __ N.C. __, 794 S.E.2d  474 (December 21, 2016), a juvenile interrogation case heard by the court on February 16, 2016. This decision marks the first time the court has addressed the rights of a juvenile during a custodial interrogation since J.D.B. v. North Carolina, 564 U.S. 261 (2011), the landmark U.S. Supreme Court case which made age a relevant factor in the Miranda custody test (and reversed the state supreme court on this issue). Saldierna did not directly involve whether the juvenile was in police custody, since he was clearly under arrest. The issue, instead, was whether a juvenile must make a clear and unambiguous request in order to exercise the juvenile’s statutory right to have a parent present during a custodial interrogation. The Supreme Court said yes, reversing the Court of Appeals on this question. This post discusses whether the ruling can be reconciled with J.D.B. and Juvenile Code statutes governing custodial interrogations. Continue Reading

  • Equitable Distribution: Change in Federal Law Regarding Military Pensions Part 1

    Before 1981, military pensions were not subject to division by state courts in marital dissolution proceedings. However, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) to provide that, for pay periods after July 25, 1981, “disposable retired pay” of military personal is subject to division by a state court in a divorce proceeding. 10 USC 1408(c)(1). Effective December 23, 2016, Congress has changed the definition of “disposable retired pay” as it relates to property distribution upon divorce in a way that has left family law practitioners and judges across the country struggling to quickly determine how to reconcile existing state law with the new federal definition. In this blog post, I will try to explain the change as it relates to North Carolina equitable distribution law. In my next post, I will discuss some issues and questions arising from the change.

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  • Action to Renew a Judgment – But Not Really

    Many small claims magistrates hold court for years before encountering an action to renew a judgment, but when they do, they are often uncertain about it – and for good reason! North Carolina trial courts as well as appellate courts have stumbled over the nature of this unique claim for relief.

    To understand this action, we have to back up ten years, to a plaintiff who goes to court [Lawsuit #1], wins the case, and obtains a money judgment [Judgment #1] against the defendant. Once that judgment has been entered, the plaintiff has ten years to try to collect it through the usual enforcement procedures available through the Clerk’s and Sheriff’s offices. GS 1-234.

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