• 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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  • It’s Complicated: Venue vs Jurisdiction in A/N/D and TPR Actions

    Within North Carolina, the appropriate location of a district court where an abuse neglect or dependency (A/N/D) action is filed is a matter of venue. GS 7B-400. And the appropriate location of the district court where a termination of parental rights (TPR) action is filed is a matter of jurisdiction. GS 7B-1101. Why are they different? Because the statutes governing A/N/D and TPR proceedings have different requirements and impose different limitations on the parties and the court.

    The General Assembly has the power to “fix and circumscribe the jurisdiction of the courts,” which can require certain procedures. In re T.R.P., 360 N.C. 588, 590 (2006). A/N/D and TPR cases are statutory in nature and set forth specific requirements that must be followed. Id. In an A/N/D or TPR action, the first place to look is the Juvenile Code (GS Chapter 7B) because it establishes both the procedures and substantive law for these types of juvenile proceedings. See GS 7B-100; -1100. Continue Reading

  • Child Custody Order Cannot Tell a Parent Where to Live

    Many appellate opinions explain that judges are vested with wide discretion in matters concerning child custody. G.S. 50-13.2(a) gives the court broad authority to allocate physical and legal custody of a child as the court believes will “best promote the interest and welfare of the child” and GS 50-13.2(b) allows the court to include in any custody order “such terms, including visitation, as will best promote the interest and welfare of the child”. Recently, however, the North Carolina Court of Appeals made it clear that there are limits on the court’s authority in custody cases. In Kanellos v. Kanellos, 795 S.E.2d 225 (N.C. App., 2016), the court reminded us that custody cases are primarily about determining who has physical care and control of a child and who has decision-making authority regarding a child and not as much about controlling the details of the lives of the child or the parties.

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  • Some Q&A on UAGPPJA

    More than two months have passed since the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) went into effect in North Carolina. I’ve blogged about this topic a couple of times before.  If you are just tuning in to this new law, you can read more about UAGPPJA here and here. I’d like to use the post today to go through some questions I’ve received since the December 1, 2016 effective date.  The questions are divided up according to the three main areas of the law: initial filings, transfer, and registration.  The stories you are about to read are true; names have been changed to protect the innocent.*

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  • Service by Publication When Defendant is in Another Country

    It is increasingly common that domestic relations cases in North Carolina involve defendants who reside outside of the United States. In child custody cases, especially cases that include a request for findings related to Special Immigrant Juvenile Status, it is increasingly common for plaintiff to allege that although she knows defendant lives in another country, she has been unable to find the actual location of defendant in that foreign country. Rule 4(j2) of the Rules of Civil Procedure allows service by publication when after using appropriate due diligence to locate a defendant, plaintiff is unable to find an address to use for personal service. Notice of service must be published in the area where plaintiff believes defendant to be located. If there is no “reliable information” as to defendant’s location, notice can be published in the area where the action is pending.

    Does this same rule apply when defendant is known to be in another country?

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  • N.C. Court of Appeals: Disposition Orders Do Not Require Written Findings on the G.S. 7B-2501(c) Factors

    In multiple cases, the Court of Appeals has found reversible error when a trial court has entered a disposition in a delinquency case without including written findings on the factors set out in G.S. 7B-2501(c). The number and frequency of reversals on this ground has even caused the State to concede error on appeal. See, e.g., In re V.M., 211 N.C. App. 389, 391 (2011). Yesterday, the court surprisingly changed course in a published decision, In re D.E.P., __ N.C. App. __ (Feb. 7, 2017), which held that the Juvenile Code does not require the trial court to “make findings of fact that expressly track[] each of the statutory factors listed in [G.S.] 7B-2501(c).” The decision raises some obvious questions. Can one panel of the Court of Appeals overrule another on the same issue? And, how will future cases be impacted? Continue Reading

  • Doctors, Patients, and Arbitration Agreements: The NC Supreme Court’s Ruling in King v. Bryant

    Last Friday the North Carolina Supreme Court issued an opinion that should prick up the ears of any physician, hospital, or healthcare facility that asks its patients to agree to binding arbitration in the event of a dispute.  In King v. Bryant (January 27, 2017), the court’s majority held that a physician was in a fiduciary relationship with a new patient at the time the patient signed an arbitration agreement at his initial intake.  The majority then concluded that, because the physician’s office did not take sufficient measures to disclose the nature and import of the agreement, but instead effectively buried it among other intake papers, the agreement was the product of breach of that fiduciary duty.

    Background. The procedural history of the case is complex, but here are the essential facts and lower-court findings that led to the ruling:

    In 2009, Mr. King was referred to a surgeon, Dr. Bryant, for a hernia repair.  While Mr. King was in the waiting area before meeting Dr. Bryant for the first time, the desk employee asked him to complete forms seeking his medical history and to sign several documents, among which was an arbitration agreement.  This was the routine practice in the office for new patient intake.  After meeting with Dr. Bryant, Mr. King signed another series of health-related and insurance forms.  Believing all the documents to be “just a formality,” he did not read them before signing.  During the surgery, Dr. Bryant injured Mr. King’s distal abdominal aorta, requiring substantial additional hospital treatment and causing significant injury to Mr. King’s right leg and foot.  Mr. King filed a medical malpractice action about two years later. Continue Reading

  • Chapter 35A Guardianship Trumps Chapter 50 Custody

    G.S. Chapter 35A authorizes the clerk of court to appoint a general guardian or guardian of the person for a child who has no natural guardian. A biological or adoptive parent is a natural guardian of a child, so these guardianships are an option only for children whose parents are both deceased or parental rights have been terminated (either both parents’ rights have been terminated, or one parent is deceased and the other parent’s rights have been terminated). See G.S. 35A-1224(a). However, orphaned children also are often the subject of Chapter 50 custody actions. What happens if a child is the subject of both proceedings? Can both move forward or does one preclude or take priority over the other? In Corbett v. Lynch, (Dec. 20, 2016), the North Carolina Court of Appeals held that the appointment of a general guardian or guardian of the person renders pending issues of Chapter 50 custody moot. In supporting its holding, the court indicates that a Chapter 35A guardianship creates a relationship between the child and the guardian that is more comprehensive than a relationship between a child and a custodian designated pursuant to Chapter 50.

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  • Final Episode of Season 2 Beyond the Bench Podcast – Obtaining Permanency

    Episode 6, “Obtaining Permanency,” for our Beyond the Bench Season 2 podcast is available now!

    This episode talks about permanent outcomes for the family and child, with a discussion of two opposite outcomes: a child’s reunification with his/her parents and the child’s adoption after a termination of parental rights. Find out what happens in our remaining court case! Continue Reading

  • The Court of Appeals on When a Payment is “Due”

    The North Carolina Court of Appeals issued an opinion last week that may – or may not–have some implications for residential leases in North Carolina. At the very least, RME Management, LLC, v. Chapel H.O.M. Associates, LLC (filed 1/17/2017) makes me think I should give a longer answer when a small claims magistrate asks me a particular question about summary ejectment law. But more on that later. First, let’s take a look at RME.

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  • The General Specific: The N.C. Supreme Court Decision In re Foreclosure of Lucks

     

    On December 21, 2016, the North Carolina Supreme Court published a final set of opinions for the year.  Without a doubt, one case in particular stopped me in my tracks.  The case, In re Foreclosure of Lucks, will have a significant impact on G.S. Chapter 45 power of sale foreclosures going forward. ____ N.C. ____ (Dec. 21, 2016).   Here’s both the general and the specific about what the court had to say. Continue Reading

  • Prosecuting Juveniles in Adult Court

    Last month, I was listening to hosts on a radio station discuss the fires in Tennessee that caused the loss of 14 lives and damage or destruction to more than 1,700 buildings. They were shocked to learn that two teenagers are alleged to have started these fires. The hosts discussed the many stupid things they did when they were teenagers. They shared how they did not consider the consequences of their actions before engaging in such risky behaviors. One host said he once set something on fire in the woods. Although the fire didn’t cause any damage or harm, he never considered that the fire could get out of hand. Another host stated that she could not excuse the teenagers. She could understand if they were eight or nine years of age, but she believes teenagers know exactly what they are doing. At what age should a teenager be held criminally responsible for misconduct that constitutes a crime? North Carolina lawmakers are currently debating this question.

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  • Beyond the Bench Podcast, Season 2: Episode 5 – The Child’s Voice in Court: The Role of the Guardian ad Litem

    We’re back with Episode 5, “The Child’s Voice in Court: The Role of the Guardian ad Litem,” for our Beyond the Bench Season 2 podcast. In this episode, we take a break from our court cases to focus on the child. Find out how the child’s perspective is represented in court, through a guardian ad litem and the child him or herself. Continue Reading

  • Foster Care Extended to Age 21

    The new year brings Foster Care 18-21 to North Carolina. This is a new program that offers extended foster care to children who have aged out from foster care. Foster Care 18-21 was created by S.L. 2015-241, Section 12C.9 and became effective on January 1st. The North Carolina Division of Social Services provides additional information about this new program in its Child Welfare Services Policy Manual, Section 1201, XII (“NC DSS §1201, XII”). Continue Reading

  • Beyond the Bench Podcast, Season 2: Episode 4 — The Case Plan: In and Out of Court

    This will be the last On the Civil Side blog post for 2016. We will be back on January 11, 2017. That gives you plenty of time to listen to Episode 4, “The Case Plan: In and Out of Court,” for our Beyond the Bench Season 2 podcast, available now!

    This episode picks up where episode 3 ended. There’s been an adjudication of child neglect and an initial disposition order entered by the court. Now the family and department are engaged in case planning. The court is monitoring the progress and ultimately deciding what the final goals for the family are through periodic review and permanency planning hearings.  Find out what’s involved both in and out of court. Continue Reading

  • Courts, Church Disputes, and the First Amendment

    Just like other organizations, churches can sue and be sued.  Much of the time religious doctrine is not relevant to the dispute, such as when a contractor does a shoddy job building the sanctuary, when the church’s neighbor contests a boundary, or when the church’s van gets into a collision.  But sometimes disputes can hinge on, or at least involve, the organization’s beliefs, principles, creeds, or canons.  Usually that happens in internal disagreements—actions among the church and its members, officers, directors, or leaders; or between an individual assembly and the larger organizing body.  In such cases, the authority of secular courts to decide the outcome is sharply limited by the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution.

    Analyzing a church’s internal property dispute, the U.S. Supreme Court stated decades ago that

    [F]irst Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.

    Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).

    When such conflicts arise in North Carolina civil actions, our courts must ask the following: May the court resolve the dispute using only neutral principles of law?  If so, the First Amendment does not prohibit the court from exercising jurisdiction.  If, instead, deciding the issue would entangle the court in ecclesiastical matters, the court must decline to intervene.  See Harris v. Matthews, 361 N.C. 265, 274 (2007).  “The dispositive question is whether resolution of the legal claim requires the court to determine or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490, 494 (1998).

    North Carolina’s appellate courts have not, of course, had the opportunity to subject every type of internal church dispute to this test.  But there are plenty of examples of how it applies—many quite recent—and these are some of the key conclusions: Continue Reading

  • The Indian Child Welfare Act: New Binding Federal Regulations You Need to Know About!

    In 1978, Congress enacted the Indian Child Welfare Act (ICWA). 25 U.S.C. §§ 1901 – 1963. Through ICWA, Congress declared

    it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture….

    25 U.S.C. § 1902.

    For the first time since its passage, ICWA now has federal regulations that states must follow. 25 CFR Part 23. One of the purposes of these new regulations is to ensure the consistent application of ICWA protections across the states. 25 CFR 23.101. The regulations become effective on December 12th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143. Continue Reading

  • Rule 59: Not for Relief from Interlocutory Orders – A New Opinion

    In a prior post, I discussed whether North Carolina’s Rule of Civil Procedure 59—the “new trial” rule—could be used to seek relief from final judgments not resulting from a jury or non-jury trial.  That post focused on other types of final, appealable judgments, such as summary judgment orders and default judgments.  I concluded that North Carolina case law is not crystal clear on the question, but that the recent case of Bodie Island Beach Club Ass’n, Inc. v. Wray, 215 N.C. App. 283 (2011), indicates that filing Rule 59 motions for relief from these types of judgments could imperil an appeal.  Proper Rule 59 motions toll the appeal period for the underlying judgment pending disposition of the motion.  See N.C. R. App. P. 3(c)(3).  If the basis for the Rule 59 motion is not proper, the appeal period will not have been tolled.

    Yesterday the Court of Appeals again addressed Rule 59’s applicability to orders other than trial judgments, but this time analyzed a pretrial, interlocutory order.  In Tetra Tech Tesoro, Inc. v. JAAAT Tech. Services, LLC, a construction dispute, a subcontractor sued a contractor for unpaid work.  The trial judge granted the subcontractor a preliminary injunction requiring the contractor Continue Reading

  • Beyond the Bench Podcast, Season 2: Episode 3 — The Trial: Adjudicating Neglect

    Episode 3, “The Trial: Adjudicating Neglect,” for our Beyond the Bench Season 2 podcast is available now! This episode picks up where episode 2 ended, with the adjudicatory hearing for alleged child neglect in our two different cases. Spoiler Alert! There are different outcomes.

    Listed in order of appearance, featured guest interviewees include:

    • Honorable J. Corpening II, Chief District Court Judge, Judicial District 5 (New Hanover and Pender Counties)
    • Honorable Cheri Siler-Mack, Judicial District 12 (Cumberland County)
    • Jamie Hamlett, Staff Attorney, Alamance County Department of Social Services
    • Dorothy Hairston Mitchell, Assistant Clinical Professor at NC Central School of Law Juvenile Law Clinic, and Parent Attorney, and
    • Honorable Denise Hartsfield, Judicial District 21 (Forsyth County).

    You can listen to this episode, along with episodes 1 and 2 if you missed them, on our podcast website or through Itunes and Stitcher. I hope you like it. Please share your feedback and don’t forget to leave a review if you listen through Itunes or Stitcher.

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  • Preparing for the Effective Date: UAGPPJA Resources

    *Update as of 12/5/16.  Two links in this post have been updated to revise the flow chart labeled “Transfer To N.C.” This flow chart is located in both the bulletin and the separate printable flow chart.  The revision is to the right-hand column, second box down which should read as follows:  “Receive final order granting transfer from other state.”   The prior version incorrectly states “provisional order” when it should state “final order.” You could either make the correction on your own or you can reprint and replace the prior version by following the links in this updated post to the bulletin (last page of the bulletin) and the transfer flow charts (page 2 for Transfer to N.C.).

    Tomorrow, December 1, 2016, G.S. Chapter 35B goes into effect in North Carolina.  The law incorporates provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). As I noted in this earlier post, it applies to all new incompetency and adult guardianship proceedings filed on or after December 1st and requires the court to ensure jurisdiction is proper under Chapter 35B before proceeding with the case.  Keep in mind that if a case is already pending as of December 1st, the court is not required to apply the G.S. Chapter 35B analysis related to jurisdiction for initial filings, even if the hearing takes place after December 1st.

    UAGPPJA, as adopted in G.S. Chapter 35B, also provides a new mechanism for transferring existing adult guardianship cases to and from North Carolina and for registering out of state guardianship orders in North Carolina.  The transfer and registration provisions apply as of December 1, 2016 to all cases in NC, regardless of whether they were filed before, on, or after that date.

    The text of G.S. Chapter 35B is now available on the N.C. General Assembly’s website.  Note the statutes were renumbered when they were codified.  Therefore, the statutory references in the session law, S.L. 2016-72, are no longer correct.  In addition to the primary law, I wanted to use this post to identify some other resources now available to assist with the implementation of UAGPPJA in N.C. Continue Reading

  • Check Out Episode 2, “The System Responds,” of Beyond the Bench Season 2

    Episode 2, “The System Responds”, for our Beyond the Bench Season 2 podcast is available now! This episode picks up where the last episode ended, with two different reports of suspected child neglect being made to a county child welfare agency. The reports are based on family homelessness and other issues that are occurring in the children’s homes.

    This episode is organized into two parts.

    • In Part One, you will learn about how the county department responds to reports of suspected neglect through the screening in/out process, what is involved in a department’s assessment of a report, and what safety planning looks like.
    • In Part Two, you will learn about when court action is required, how it is started, and what is involved in obtaining an emergency order that removes the children from their homes.

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  • Is Service by Posting Available in Non-Residential Leases?

    North Carolina small claims magistrates across the state report that most summary ejectment actions are served by posting, and that’s not surprising. GS 42-29, the statute establishing the procedure for service of process in such cases, establishes a very narrow window within which the officer must operate: the officer must visit the defendant’s place of abode to attempt personal service within five days of the summons being issued, but at least two days prior to the court date. For the most part this brief span of time does not permit an officer to make a second effort at personal service. Consequently, in those instances in which no one opens the door to accept service, the officer is instructed by the statute to post the complaint and summons to a conspicuous place on the rental premises. This method of service — variously referred to as service by posting or nail and mail — has long been a legally permissible alternative means of service in certain circumstances. In this blog post, I’m going to explore whether and how this works in a situation in which the rental agreement involves something other than a residential setting.

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  • Does North Carolina law allow reconciliation agreements?

    Spouses in North Carolina are free to contract with each other before, during and after marriage. The Uniform Premarital Agreement Act regulates contracts entered in anticipation of marriage, see GS Chapter 52B; GS 52-10 and GS 50-20(d) provide statutory authorization for contracts entered during marriage, and GS 52-10.1 is the statutory authorization for agreements made in consideration of living separate and apart. Married people generally are free to enter into any contract “not inconsistent with public policy.” GS 52-10(a).

    What about agreements made during separation when the parties intend to resume the marital relationship rather than to end it, setting out what will happen should the parties separate again in the future? Are such ‘reconciliation agreements’ consistent with public policy? Continue Reading

  • Use of deposition testimony at trial

    Depositions are primarily a discovery tool.  When it comes to trial, live witness testimony is “more desirable,” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 690 (1992), and Rule of Civil Procedure 43 states that, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.”  In “sharply limited” circumstances, however, deposition testimony may be used at trial, Warren v. City of Asheville, 74 N.C. App. 402, 408 (1985), and Rule 32 of the North Carolina Rules of Civil Procedure sets out (most of) those circumstances.

    Under Rule 32, deposition testimony may be used at trial if it meets three criteria:

    • It is being used against a party who was present or represented at or had reasonable notice of the deposition;
    • It falls within one of the categories in Rule 32(a)(1) through (a)(4); and
    • It is admissible under the Rules of Evidence (applied as though the witness were present and testifying).

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  • Beyond the Bench Podcast, Season 2: Episode 1, Without a Home

    Earlier this week, I wrote a post that announced the introduction to Season 2 of the School of Government’s Judicial College podcast, Beyond the Bench. Season 2 consists of six episodes and discusses family homelessness, child neglect, and the child welfare system in North Carolina. The first episode, “Without a Home” is now available on our podcast website (or through Itunes and Stitcher).

    In this first episode, you will hear from two homeless shelter providers and three district court judges who preside over abuse, neglect, and dependency cases. You will learn about family homelessness in North Carolina, whether it constitutes child neglect, and when a person is required to make a report of a child’s suspected neglect to the county child welfare agency (e.g., department of social services). Continue Reading

  • Due Process Rights and Children: Fifty Years of In re Gault – Part Four, the Right to Confrontation

    The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This protection applies to state court criminal actions by virtue of the Fourteenth Amendment. It also applies to juvenile proceedings because of In re Gault, 387 U.S. 1 (1967). Simply put, the right to confrontation allows juveniles to face their accusers in court and dispute their testimony through cross-examination. It allows juveniles to challenge the state’s evidence and protects them from the improper admission of certain testimonial hearsay under Crawford. This post explains a juvenile’s right to confront and cross examine witnesses and how far it extends in juvenile court.

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  • Season Two of Beyond the Bench, “Homelessness, Neglect, and Child Welfare in North Carolina,” Launches This Week!

    Beyond the Bench

    For those of you who aren’t in the know, earlier this year the School of Government’s Judicial College started a podcast, Beyond the Bench. A podcast is essentially a radio show that you can get on the internet, so you can listen any time you want.  “Beyond the Bench” is about the North Carolina court system and features interviews with interesting people who work in the courts. Our first season was hosted by my colleague, Jeff Welty, and focused on criminal law.

    Season Two: Homelessness, Neglect, and Child Welfare in North Carolina

    I am the host of Season Two, which focuses on neglect and the child welfare system with a particular emphasis on homelessness. Through six episodes, you will hear about family homelessness in North Carolina, whether homelessness is neglect and requires a report to a county child welfare (or social services) department under North Carolina’s mandated reporting laws, and the different stages of a child welfare case. Each episode discusses a different stage in a child welfare case and includes the various voices and perspectives of the people involved. Those voices include homeless shelter staff, county department social workers and attorney, the children’s guardian ad litem, a parent attorney, and district court judges.  Continue Reading

  • Child Custody: We Can’t “Change Venue” to Another State

    I received a call once from a clerk of court asking what she should do with a voluminous court file received in the mail from a court in another state. It was a large box containing all of the pleadings, motions, reports and other filings for a custody case that had been litigated in another state for several years, accompanied by a court order signed by a judge in that other state “transferring venue” of the case to North Carolina, citing as authority that state’s version of the Uniform Child Custody and Jurisdiction Act (the “UCCJEA”).

    Does the UCCJEA allow a judge to transfer a custody case to another state? When that clerk received the file and the order from the other state, is the North Carolina court required to act in the custody proceeding?

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Three, the Right to Notice

    The right to receive “notice” of a criminal charge or other alleged misconduct is considered to be one of the core requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although due process requirements vary depending on the circumstances, at a minimum, a person is entitled to notice and an opportunity to be heard before suffering a loss of life, liberty, or property by the government. In re D.B., 186 N.C. App. 556, 564 (2007). This basic protection was not afforded to juveniles prior to In re Gault, 387 U.S. 1 (1967), which extended due process rights to children. Why is notice so important? When must notice be given? How much notice is required? These questions and others are answered in this third post in a series about Gault’s role in protecting the rights of juveniles in delinquency proceedings over the past fifty years.

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  • UAGPPJA is Here to Stay

    I’ve been spending a lot of my time recently focused on the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA; pronounced, “you-ah-gap-jah”).  UAGPPJA is a uniform law enacted by the NC General Assembly during this past legislative session as S.L. 2016-72.   I previously discussed an earlier version of the bill in a blog post available here.  The law creates a new G.S. Chapter 35B and applies to incompetency and adult guardianship proceedings under G.S. Chapter 35A.  It does not apply to minor guardianships under Article 6 of G.S. Chapter 35A.
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  • Small Claims Mailbox: Questions from Magistrates about Service of Process

    Service of process in small claims cases, like many other small claims procedures, requires reference to North Carolina’s Rules of Civil Procedure (GS 1A-1) as modified by GS Ch. 7A, Art. 19 (Small Claims Actions in District Court). In today’s blog post, I’m going to explore that law by sharing some (lightly edited) email inquiries I’ve received from magistrates over the last few years. But first, a quick overview of why we care so much about service of process.

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  • So You Want to be a District Court Judge

    A few election seasons ago, a campaign sign advocating “Denning for Judge” was posted in our neighborhood. My son noticed it on the way home from school and said, “Mom:  Is Dad running for judge?”  “No, he isn’t,” I said.  Then, in a moment of pique, I said, “Actually, your dad isn’t qualified to be a judge. But I am.” Since I’ve obviously done such a great job teaching civics (and equal rights) to my children, I thought I’d share a bit with you about the selection, qualifications, and work of a North Carolina district court judge—a group of judicial officials with whom I frequently work.

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  • Public Official Immunity and Intentional Torts – A New Publication Available

    Issues of governmental immunity and public official immunity arise relatively often in North Carolina appellate opinions.  Within this important area of the law, however, there remain challenging questions.  Among them is this:  Does public official immunity ever shield North Carolina public officials from personal liability for intentional torts, such as assault, battery, false imprisonment, and malicious prosecution?  School of Government faculty member Trey Allen recently took on this question. His new Local Government Law Bulletin, Do Intentional Tort Claims Always Defeat Public Official Immunity?, includes an in-depth examination of existing case law with a discussion of malice in the context of intent, and closes with a proposed framework for analysis of future cases.  If, like me, you could simply use a primer on public official immunity, the bulletin starts with that.  And at the end there’s a handy list of which public official positions are eligible for immunity and which are not.  (Examples: Superintendent of County Schools – yes.  School bus driver – no).  Check out the bulletin (it’s free!) here.

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  • The Magistrate’s Role in Filing Juvenile Delinquency and Undisciplined Petitions

    Magistrates have limited authority to file juvenile petitions and enter custody orders related to delinquent and undisciplined juveniles. Specifically, a magistrate may “draw and verify the petition and accept it for filing,” in “emergency situations” when the clerk’s office is closed and “a petition is required in order to obtain a secure or nonsecure custody order.” G.S. 7B-1804. Recently, I was invited to discuss this statutory provision with magistrates at their annual fall conference. I had assumed that most magistrates rarely, if ever, file juvenile delinquency or undisciplined petitions and expected to finish the presentation early with few questions. To my surprise, I discovered that magistrates in some counties are routinely being asked to file after hours juvenile petitions and enter secure custody orders, and they had lots of questions. Since I ran out of time trying to answer them all, I decided to write this blog post.

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  • Custody Orders Requesting Findings for Special Immigrant Juvenile Status

    A few weeks ago, I posted about the case of Zetino-Cruz v. Benitz-Zetino, NC App (August 16, 2016), in which the court of appeals held that the trial court erred in transferring venue sua sponte in a custody case. The opinion also mentions that, in addition to her request for custody, grandmother in that case also requested that the trial court make findings of fact and conclusions of law that are prerequisites for the children’s application to US Citizenship and Immigration Services (USCIS) for Special Immigrant Juvenile Status. The court of appeals resolved the case on the venue issue alone and did not address the request for the “extra” findings of fact or conclusions of law by grandmother.

    This same request is being made in custody cases throughout the state with increasing frequency. So what is Special Immigrant Juvenile Status and what does it have to do with Chapter 50 custody cases?

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  • Drilling Down on the Clerk’s Civil Contempt Authority

    Earlier this month, I had the pleasure of attending the elected clerk of superior court summer educational conference in Nags Head, NC.  The elected clerks gather annually this time of year to install new conference officers, attend educational sessions, and generally catch up on matters concerning the court system throughout the State.  I was invited by the clerk’s program committee to teach a session on civil contempt.  As part of my session, we identified the statutes that authorize the clerk to use civil contempt.  As noted in my previous post on the clerk’s contempt authority, the clerk only has the authority to use civil contempt where a statute expressly provides for it.  G.S. 5A-23(b).  Below is a list of statutes that authorize the clerk to use civil contempt.

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  • Who’s In Charge in Your District?

    My middle child is named Charles. The other day I referred to him as Charles in Charge.  He asked me why teachers and other adults always called him that. Ah, me. It seems my cultural references are dated.

    Regardless of whether you are old enough to have had a Scott Baio poster in your room, if your work involves the courts, it is a good idea to know who is in charge of district court in your district.

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  • School Stability for Children in Foster Care

    It’s September, which means that children have gone back to school. When the school year starts, most children know which school they are attending. But, a child who has been removed from his home and placed in foster care may not know which school he will be going to. Is it the old school? Is it a new school where the placement is located?  If a child experiences multiple placements, does the child change schools each time the placement is in a different school district? Changing schools impacts children. That impact may be even more significant when a child is also experiencing a change in both her home environment and caretaker. As of December 12, 2016, a new federal education law goes into effect that prioritizes educational stability for children in foster care. But educational stability for a child in foster care is something that can be addressed now.

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  • Domestic Violence: more on Mannise and personal jurisdiction

    My post last week discussed the decision in Mannise v. Harrell that told us a Chapter 50B proceeding is an in personam proceeding that requires all three prongs of personal jurisdiction. That case also reminded us that a plaintiff has the burden of producing evidence, “direct or indirect,” to establish prima facie that personal jurisdiction exists when a defendant properly objects to personal jurisdiction. As illustrated in Mannise, many plaintiffs in 50B proceedings are not prepared to meet this burden.

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Two, the Right to Counsel

    This post is the second in a series focused on In re Gault, the U.S. Supreme Court case which mandated that the core due process rights applicable to adults in criminal proceedings must also be afforded to juveniles who are alleged to be delinquent. Perhaps the most significant of these rights is the right to counsel.

    The Supreme Court strongly condemned the denial of counsel to children in a proceeding which carries “the awesome prospect of incarceration” until the age of majority. 387 U.S. 1, 36. In such proceedings, a juvenile needs legal representation “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. Thus, in delinquency hearings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed,” the child and his or her parents must be notified of the child’s right to counsel, or if they cannot afford counsel, that counsel will be appointed. Id. The NC Juvenile Code codified and expanded the right to counsel in G.S. 7B-2000 by requiring the appointment of counsel for all juveniles who are alleged to be delinquent without the need to show indigency. Despite this progress, advocates still question whether the right to counsel for juveniles extends far enough. Continue Reading

  • Domestic Violence: DVPOs Require Personal Jurisdiction

    While I always have believed a Chapter 50B proceeding requires all three prongs of personal jurisdiction as do most other civil actions, a few appellate courts in other states have held that some DVPOs can be entered without concern for long-arm statutory authorization or the minimum contacts required by Due Process. The North Carolina Court of Appeals finally had the opportunity to address the issue for the first time this week. The court held that because of the significant impact a DVPO has on a defendant, entry of any final DVPO without all three aspects of personal jurisdiction violates “Due Process and offend[s] traditional notions of fair play and substantial justice.”

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  • Must a Tenant Introduce Opinion Evidence of Fair Rental Value in an Action for Rent Abatement?

    On Tuesday the NC Court of Appeals handed down an opinion in Crawford v. Nawrath, a Mecklenburg County case involving the calculation of damages for violation of the Residential Rental Agreement Act (RRAA). The Crawford opinion is unpublished and thus does not constitute controlling legal authority but nevertheless is interesting and informative, both procedurally and substantively.

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  • No More Nunc Pro Tunc in Civil Cases?

    Nunc pro tunc is a phrase used in an order or judgment when the court wants the order or judgment to be effective as of a date in the past rather than on the date the judgment or order is entered into the court record. Black’s Law Dictionary defines the term “nunc pro tunc” to mean “now for then; [a term signifying] ‘a thing is now done which should have been done on the specified date.’” Recent cases from the North Carolina Court of Appeals have made it clear that nunc pro tunc is a tool available only in extremely limited circumstances.

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  • Enforcing Foreign Judgments – What defenses can a judgment debtor raise?

    What happens when a creditor gets a judgment against a debtor in Alabama (or another state) but then the judgment debtor moves to North Carolina, or the bulk of its property is in North Carolina?  Can the creditor can get its “foreign” (meaning out-of-state, not out-of-country) judgment enforced in North Carolina?  Yes, and typically the most efficient way is to follow the steps in North Carolina’s version of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), G.S. 1C-1703 through -1708.

    If the creditor follows the UEFJA’s filing and notice requirements, the foreign judgment will be “docketed and indexed in the same manner as a judgment of this State.”  The creditor can seek enforcement of the judgment just as if it had originally been entered in North Carolina.  But the UEFJA further provides that the judgment “is subject to the same defenses as a judgment of this State[.]” G.S. 1C-1703(c).  To that end, before enforcement can begin, the judgment debtor has a 30-day window to file a motion for relief from (or notice of defenses to) the judgment.  G.S. 1C-1704(b).  The UEFJA goes on to state that the debtor can raise “any other ground for which relief from a judgment of this State would be allowed.” 1C-1705(a).

    On the face of things, the UEFJA’s “same defenses” and “any other ground” language seems pretty broad and appears to open up all kinds of challenges.  But does it really mean all defenses that a debtor might raise to enforcement of a North Carolina judgment?  More pointedly, does every Rule 60(b) basis for “relief” from judgment apply? Continue Reading

  • No Sua Sponte Change of Venue Allowed

    It is not always clear when a court can exercise authority sua sponte, or to put it in English, on its own motion, without a party specifically requesting that the court act.  Last week, the court of appeals held that a trial court does not have the authority to change venue sua sponte. Unless a defendant files a timely motion requesting a change and establishes grounds for moving the case to another county, a plaintiff has the right to prosecute a civil case in the county of his or her own choosing.

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  • Unconscionability, Public Housing & Summary Ejectment

    In a prior post, I talked about Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), a North Carolina Court of Appeals case requiring a landlord seeking summary ejectment based on breach of a lease condition to prove as an essential element of the case “that summarily ejecting [the] defendant would not be unconscionable.” Last week the North Carolina Supreme Court disagreed in a long-awaited opinion, making clear that “the equitable defense of unconscionability is not a consideration in summary ejectment proceedings.” In so doing, the Supreme Court finally put the issue to rest, reconciling inconsistent statements of the law in several Court of Appeals cases, including Lincoln Terrace Associates v. Kelly, Charlotte Housing Authority v. Fleming, 123 N.C. App. 511 (1996), and Durham Hosiery v. Morris. Today, NC law provides that in an action for summary ejectment based on breach of a lease condition, it is sufficient for a landlord to demonstrate that the tenant breached the lease in a manner triggering the right to declare a forfeiture; the landlord has no additional burden to demonstrate that the result of such forfeiture will not be unconscionable.  The Lofton opinion, written by Justice Newby, is significant for another reason: the Court also addressed the relative roles of a public housing authority (PHA) and a trial court in a summary ejectment action based on criminal activity in violation of the lease.

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  • Back to Parenting Coordinators in Custody Cases

    A few weeks ago, I posted blog about Parenting Coordinators (“PCs”) in Child Custody Cases and noted the ambiguity concerning the court’s authority to respond when a PC requests a hearing pursuant to GS 50-97 and identifies changes that need to be made to the existing custody order. Shortly thereafter, the Court of Appeals provided more guidance on this issue. In Tankala v. Pithavadian, NC App (July 19, 2016), the court held that the strict limitation on a court’s authority to “tweak” custody orders – see Blog “No ‘tweaking’ of Custody Orders Allowed – does not necessarily mean the court cannot address problems identified by a PC.

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  • You Need to Know More Than Just the Law

    “We are not criminal defense lawyers. We are civil rights lawyers because being a criminal defense lawyer is kind of limiting”. (Alex Charns, Attorney, Annual Contractor and Assigned Counsel Training, UNC School of Government June 2016).

    Considering all the many issues clients present with, referring to ourselves as only a specific type of attorney, such as a juvenile or family law attorney, does seem limiting. Representing people in any area of law requires more of attorneys, especially as they begin to address the multitude of social, health, and economic challenges their clients face.

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  • It’s My Birthday and I’ll Cry if I Want To; Is That the Norm for Children in Foster Care?

    Today is my birthday (for those of you who are wondering, 46). It is my absolutely favorite day of the year. It’s not because of presents or the fact that I can easily justify why I should be the center of attention for the day (yes, I am a Leo). It’s because every year, on August 12th, I know no matter what my sister, my brother, and my mother will call me. It’s not a text; it’s not an email; it’s an actual phone call, with a real conversation. I can count on that predictability. Knowing I’m going to talk to each of them makes me really happy. My mother will call first; my sister will sing me some happy birthday jingle she made up, and my brother will wish me a happy birthday while asking how I’m going to celebrate and what else is happening in my life.

    As my birthday approached this year, I found myself thinking about children in foster care and their birthdays. Is there any predictability? Is there a family visit? Are there phone calls? Is the day even acknowledged? I searched the relevant statutes, regulations, and state’s policy manuals, and I couldn’t find anything that addressed a child’s birthday (if there’s something out there that I missed, please let me know). But, the statutory, regulatory, and policy silence does not mean that the court order or the child’s case plan should also be silent. Continue Reading

  • Due Process Rights and Children: Fifty Years of In re Gault – Part One

    On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

    • the right to notice of the charges;
    • the right to an attorney;
    • the right to remain silent; and
    • the right to confront and cross-examine witnesses.

    While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.

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  • Equitable Distribution: Can we use the date of separation from the divorce judgment?

    Anyone who works with equitable distribution knows that the date of separation is a critical fact that must be established before anything else can be done in the case because it is the date used to define and value the marital estate. The date of separation should be established before the parties spend time and money engaging in the discovery process and definitely must be established before the court begins the process of classifying and valuing marital and divisible property.

    So what is the relationship between a date of separation found as a fact in an absolute divorce judgment and the date of separation in the equitable distribution case? If the parties have obtained an absolute divorce and that judgment contains a date of separation, is that date binding on the equitable distribution case? Can one of the parties argue in the ED case that a different date was the actual date of separation?

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  • May a Different Judge Hear My Rule 60(b) Motion?

    Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b).  This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:

    • Mistake, inadvertence, surprise, or excusable neglect;
    • Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
    • Fraud…, misrepresentation, or other misconduct of an adverse party;
    • The judgment is void;
    • The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
    • Any other reason justifying relief from the operation of the judgment.

    Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order.  But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench.  It’s not surprising, then, that fairly often my colleagues and I are asked:  May a judge other than the original judge hear and rule on a Rule 60(b) motion? Continue Reading

  • Debt Buyers & North Carolina’s Consumer Economic Protection Act

    Last month John Oliver made headlines across the country when his TV show, Last Week Tonight, did an episode focusing on common practices by debt buyers.  To illustrate how easy it is to buy consumer debt, Oliver formed a debt-buying company (“CARP”) after complying with legal requirements in Mississippi: paying $50 to the State and appointing himself Chairman of the Board. The new company set up a very basic website and was quickly offered an opportunity to buy $3 million of consumer medical debt for $60,000, along with the names, addresses, and social security numbers of almost 9,000 alleged debtors.  At the end of the episode Oliver— in his role as CARP Chairman– forgave the debt by pushing a giant red button. You can watch the excitement, and perhaps learn something about debt-buying, by going to https://www.youtube.com/watch?v=hxUAntt1z2c .

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  • The Clerk’s Contempt Authority

    The clerk of superior court and assistant clerks, when acting as judicial officials, have the authority to punish criminal contempt and hold persons in civil contempt.  G.S. 7A-103(7).  However, this authority does not exactly mirror the authority of district or superior court judges who have broad contempt powers.  In fact, the clerk’s authority is limited to two instances:

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  • Vinson, Voisine, and Misdemeanor Crimes of Domestic Violence

    This post was authored by School of Government faculty member Jeff Welty and posted originally on the School’s Criminal Law Blog

    The United States Supreme Court recently decided a case about what counts as a “misdemeanor crime of domestic violence” for purposes of the federal statute prohibiting individuals who have been convicted of such crimes from possessing firearms. I’ve had several questions about whether the ruling affects last year’s Fourth Circuit decision holding that North Carolina assaults generally don’t qualify as “misdemeanor crime[s] of domestic violence.” For the reasons set out below, I don’t think the Supreme Court case clearly overrules the Fourth Circuit’s decision.

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  • 2016 Legislative Changes Impacting Child Welfare

    *This post was updated on August 1, 2016 to reflect the Session Law for H424.

    The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B.  Continue Reading

  • Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent?

    It is now well established that a parent has a constitutional right to exclusive care, custody and control of his or her child. This constitutional right protects a parent against claims for custody by non-parents. A court cannot apply the best interest of the child test to determine whether a non-parent should have custody of a child unless the court first concludes that the parent has waived her constitutional right to exclusive custody. A parent waives her constitutional right by being unfit, neglecting the welfare of the child, or by conduct otherwise inconsistent with the parent’s protected status. There is no precise definition of conduct inconsistent with protected status and our appellate courts have provided no comprehensive list of actions that will result in a parent’s loss of constitutional rights. Instead, whether a parent’s conduct has been inconsistent with protected status is an issue that must be determined on a case-by-case basis. The non-parent seeking custody has the burden of proving the parent’s inconsistent conduct by clear, cogent and convincing evidence. For more detail on this law, see Family Law Bulletin, Third Party Custody and Visitation Actions.

    What if a parent signs a consent custody order that grants custody rights to a non-parent third party? Does the parent lose the ability to assert her constitutional right to custody in subsequent custody proceedings? For example, if a parent agrees to a court order granting custody to grandmother, does the parent have the constitutional right to regain custody from grandmother in the future? Or, if another non-parent wants custody or visitation after parent has entered into a consent custody order with grandmother, does the other non-parent still need to prove parent has waived her constitutional right to custody and, if so, can the non-parent rely on the fact that parent voluntarily gave custody to the grandmother to establish that the parent acted inconsistent with her protected status?

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  • Consecutive Terms of Commitment for a Delinquent Juvenile

    Can a district court judge impose a consecutive term of commitment upon a delinquent juvenile who is already committed to a youth development center (YDC)? Until yesterday, when I had to research this question for a client, I assumed that consecutive terms of confinement applied only to adult criminal sentences under G.S. 15A-1354 but not to juvenile dispositions. Juveniles who are long term committed to juvenile facilities generally are placed there indefinitely and must work towards release by completing appropriate treatment and services designed to correct their behavior. Typically, there is no predetermined end date to the commitment (like a criminal sentence) which is why I assumed that juveniles could not receive consecutive terms. I was surprised to learn that my assumption was wrong when I found what appears to be the only NC appellate decision on the issue. See Matter of Thompson, 74 N.C. App. 329, 330 (1985). Although Thompson holds that a court may impose a consecutive commitment term, there are a couple reasons why courts may choose not to do so in a delinquency case. Continue Reading

  • Parenting Coordinators in Custody Cases

    Unfortunately, the entry of a custody order does not always stop conflict between parents. Anyone working in family law knows that there are cases where, no matter how much effort and skill goes into creating the parenting plan, the parties will continue to come back to court because of the inability of one parent or both to stop fighting.

    Recognizing that on-going litigation is bad for families, the General Assembly in 2005 enacted Article 5 of Chapter 50, GS 50-90 through 50-100, to authorize the appointment of a Parenting Coordinator (“PC”) in custody cases determined to be ‘high-conflict’. The hope is that the PC can help parents reduce their need to return to court.

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  • Paralegal Fees as Part of Attorney Fee Award?

    In honor of this short court week, here’s a brief post answering a question I’ve been asked a few times:  When a statute authorizes a court to award reasonable attorney fees as costs, can the fee award also include reasonable paralegal fees?  (Note that paralegal fees are not separately included in the “complete and exclusive” list of allowable expenses in 7A-305(d).)  Some trial judges and clerks of court routinely include paralegal fees in attorney fee awards and others do not.  But have North Carolina’s appellate courts addressed the specific question one way or another?  Yes, and the short answer is that trial courts do indeed have this discretion.  In Lea Co. v. North Carolina Board of Transportation, the Supreme Court reviewed an attorney fee award in the context of a condemnation action.  The court stated pointedly that,

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  • From a Parent Wrongly Accused of Molesting Her Daughter to Becoming an Attorney, Lessons Learned

    In May 2008 a kindergarten teacher in a small town in Georgia was accused of sexually molesting three children. As a result, she was criminally charged, and she lost custody of her son and daughter. For two years, she was not allowed any contact with her daughter, one of the alleged victims.

    Tonya Craft, the accused teacher, shared her story during a session for investigators at the May 2016 spring public defender and investigator conference. Her presentation focused on the importance of client-centered investigation and representation. As I listened to her story about her criminal case, I heard valuable lessons that I think are relevant for attorneys representing parents in abuse, neglect, and dependency proceedings. Continue Reading

  • Administrative Inspection Warrants in Adult Protective Services Cases

    The county department of social services (DSS) receives a report that a 65-year old woman, Mary, was injured by a family member who repeatedly hit her during a dispute that took place at Mary’s home.   Mary lives with her adult daughter, Patricia, and son-in-law, Frank.  The report includes a statement that Mary has been recently diagnosed with dementia and has not left the house in more than a month.  After finding the necessary allegations to screen the report in as an adult protective services (APS) report, the case is assigned to an APS caseworker who commences an evaluation to investigate the report further and determine whether Mary is a disabled adult subject to abuse, neglect, or exploitation and in need of protective services.  See G.S. 108A-103.

    When the caseworker goes to visit Mary as part of the evaluation, Frank refuses to allow her in the home.  The caseworker returns multiple times and each time is denied entry and access to Mary.  The caseworker determines that it is not possible to complete the evaluation without meeting with Mary.  Is there anything that she can do to gain access to the home and thus to Mary? Continue Reading

  • “Live Loan” Checks in Small Claims Court

    Magistrates in some counties are reporting increasing numbers of actions brought by finance companies to collect debts arising from “live loan” checks.  Many of us have seen these in our mailbox: documents that look like checks, made out to us personally, accompanied by instructions for quickly and easily converting the document to cash. When the recipient cashes the check, a contract for loan is created. This post will take a brief look at two North Carolina statutes that govern such loans: GS 75-20, which mandates specific disclosures on the check as well as the attached loan agreement, and GS Ch. 53, Art. 15, the Consumer Finance Act (CFA). Continue Reading

  • Teaching Judges about the School to Prison Pipeline

    Every June after celebrating Father’s Day, district court judges throughout the state head to Wrightsville Beach for their annual summer conference. Normally, I get to tag along to give them a legal update on recent juvenile delinquency cases and legislation enacted since their fall conference. However, with less than a handful of published delinquency cases decided since the fall and no new legislation, I thought I’d miss this one. To my surprise, they wanted to hear about a different juvenile law topic – The School to Prison Pipeline (or STPP) – a somewhat controversial topic to discuss with judges because it’s more about policy than law. Here’s what I told them in the most neutral, non-advocacy way possible. Continue Reading

  • New Book! Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases

    This Sunday is Father’s Day, a day that celebrates fathers. It’s the perfect time to announce my new book, Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases. The book recognizes the role of fathers in abuse, neglect, or dependency cases.  Put simply, they have a role. Fathers are necessary parties to the court proceeding. See G.S. 7B-401.1(b). Fathers impact a child’s placement, visitation, and permanent plan.

    Unfortunately, every child does not have a father who has been identified by a marital presumption, acknowledgment, or judicial determination of paternity. Even when a father has been identified, his paternity has not necessarily been established, which allows for it to be challenged. The uncertainty in knowing who a child’s father may or may not be has resulted in cases where no father is named or the wrong man is named as a respondent father in the court action.  Continue Reading

  • Trial Court Jurisdiction Following Appeal of an Interlocutory Order

    My last blog post discussed the loss of trial court jurisdiction following an appeal. But the court of appeals has held that only appropriate appeals remove jurisdiction from the trial court. If a party appeals an order that is not immediately appealable, the trial court is not divested of jurisdiction and can proceed with the merits of the case, even if the merits involve the issues on appeal. See T&T Development Co., Inc. v. Southern National Bank, 125 N.C. App. 600 (1997)(appeal of decision on a motion in limine did not deprive court of jurisdiction); Harris v. Harris, 58 N.C. App. 175, rev’d on other grounds, 307 N.C. 684 (1983)(appeal of an interlocutory order in a separation agreement case did not deprive court of jurisdiction).

    Generally speaking, a party has the right to appeal only a final judgment. However, there are times that an interlocutory order is appropriate. So what should the court do when a party appeals an order that clearly is not a final judgment, such as a temporary custody order or a PSS order or an interim distribution in an ED case? When is the interlocutory appeal appropriate?

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  • A Parent’s Right to Inherit Intestate from a Child

    A. The Statute

    When a person dies without a will, the person dies intestate and the person’s property is distributed in accordance with the Intestate Succession Act (the “Act”) found in Chapter 29 of the North Carolina General Statutes.  The Act states that if a person dies intestate without a spouse or lineal descendants (meaning children, grandchildren, etc.), the person’s parents are entitled to take equal shares of the person’s estate if both parents are alive.  G.S. 29-2(4); G.S. 29-15(3).  If only one parent is alive, then that surviving parent takes the entirety of the intestate estate. G.S. 29-15(3).

    The parental right to inherit via intestate succession from a child is not an unqualified right. Under G.S. 31A-2, a parent who willfully abandons the care and maintenance of his or her child shall lose all rights to intestate succession in any part of the child’s estate. This bar includes any recovery from a wrongful death action because, pursuant to G.S. 28A-18-2(a), wrongful death proceeds are disposed of as provided in the Act, even though such assets pass outside of the estate.

    Although a parent may have willfully abandoned a child, the parent may still inherit from a child if the parent is able to show an exception to the bar applies.  The two exceptions listed in the statute are if the abandoning parent:

    1. Resumed care and maintenance at least one year prior to the death of the child and continued the same until the child’s death; or
    2. Was deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child. G.S. 31A-2(1) and (2).

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  • The Harshest of Remedies: Dismissal for Failure to Prosecute

    In civil litigation, delays can seem almost inevitable. Because litigation happens in the real world and not a perfect one, the Rules of Civil Procedure allow a little flexibility.  Within limits, parties are permitted to extend the various deadlines for pleadings, discovery, responses to motions, and other requirements (as a starting point, see Rule 6(b)).  But sometimes parties can simply push the delays too far.  For various reasons some plaintiffs just won’t advance the ball, and for their opponents, the light at the end of the litigation tunnel starts to fade.  When a case languishes for too long without good reason, the court may take action, even to the point of dismissing the case or claim entirely for “failure to prosecute.”  This authority is found in Rule 41(b) of the Rules of Civil Procedure, which says:

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  • Trial Court Jurisdiction Following Appeal

    In Ponder v. Ponder, NC App (May 3, 2016), the trial court conducted a lengthy hearing on plaintiff’s motion to renew a DVPO. Realizing the order needed numerous findings of fact to resolve the issues litigated but wanting to give plaintiff immediate protection, the trial court entered a renewal order with no findings of fact on AOC Form CV-314 and informed the parties that a more detailed supplemental order would replace the form order as soon as the court had time to complete it. Following entry of the form order, defendant appealed. The trial court then entered the supplemental order with extensive findings of fact only to have the court of appeals hold that both the form and the supplemental orders were void ab initio. The form order was void for a lack of findings and the supplemental order was void because it was entered after appeal was taken.

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  • Children in DSS Custody Who Need Treatment in a PRTF: There’s a Disconnect

    I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

    1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
    2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

    The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other. Continue Reading

  • Alimony: Cohabitation is All About Money After All

    North Carolina law long has provided that court-ordered alimony terminates upon the death of either the supporting or dependent spouse and upon the remarriage of the dependent spouse. Since 1995, the law provides that even if the dependent spouse does not remarry, alimony also will terminate if the receiver engages in cohabitation. Our appellate courts have struggled to provide clear guidance regarding how to determine when a relationship amounts to cohabitation. Last December, in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015), the court of appeals told us that the primary purpose of the cohabitation rule is to discourage “bad faith” decisions not to remarry and provided the clearest statement to date that cohabitation is proven by showing a relationship that provides economic benefits to the dependent spouse similar to those that would be provided by marriage.

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  • When Parental Discipline Goes Too Far, It’s Child Abuse

    Before On the Civil Side existed, the story about NFL running back, Adrian Peterson, pleading no contest to a misdemeanor reckless assault charge for disciplining his 4-year old son with a switch was national news. I wrote about what I thought would happen to him here in NC for our Criminal Law Blog: Parental Discipline: When Is It Abuse and/or a Crime? Since I wrote that post, the NC Court of Appeals published its first opinions interpreting the definition of abuse as applied to a child protective case that says:

    a child is abused when his or her parent, guardian, custodian, or caretaker uses or allows to be used cruel or grossly inappropriate procedures or devices to modify the child’s behavior.

    G.S. 7B-101(1)c.

    In other words, a child is abused when parental discipline goes too far.  How does a court determine whether a parent has gone too far? Continue Reading

  • DVPO Can Be Set Aside When Victim is No Longer Afraid

    On Tuesday of this week, the Court of Appeals in Pope v. Pope upheld a decision by a trial judge to set aside a DVPO pursuant to GS 1A-1, Rule 60(b)(5). The trial court concluded, and the court of appeals agreed, that evidence showing plaintiff clearly was no longer afraid of defendant established that “it was no longer equitable for the judgment to have prospective application.”

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  • Does NC Need a Teen Sexting Law?

    A growing number of teens in NC and across the nation are facing criminal charges for sexting.

    A few months ago, I wrote a blog post about a Fayetteville case involving two teens charged with felony child pornography for sending naked selfies to each other. The teens in that case, a boyfriend and girlfriend, ultimately pled guilty to misdemeanors (disseminating harmful material to minors) and their cases will be dismissed if they successfully complete a one-year term of probation under a deferred prosecution agreement. New sexting cases are reportedly being investigated in Wake County at two separate high schools, one of which may involve extortion. Based on my recent advising requests, other counties are also dealing with sexting issues in their schools. The offending students often end up with felony charges, at least initially, for behavior which one recent study suggests is a fairly common practice among U.S. teens. The question is how should the state respond?

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  • Child Support: Maintenance and Gifts Are Actual Income??

    The NC Child Support Guidelines provide that the term gross income “includes income from any source” and the Court of Appeal s has held repeatedly that the term should be construed very broadly. See e.g. Spicer v. Spicer, 168 NC App 283 (2005)(even the pain and suffering component of a personal injury settlement is income) and Moore v. Onafowora, 208 NC App 674 (2010)(bonuses received on a regular basis are included as recurring income). Unlike many other states, the NC Guidelines even count nonrecurring and one-time lump sum payments as income.

    In an unpublished opinion issued last week, the Court of Appeals reaffirmed a line of cases holding that gifts and ‘maintenance’ received from third parties also must be included as income. In Cumberland County v. Cheeks, May 3, 2016, the Court of Appeals held that BAH (Basic Allowance for Housing) payments received by military personnel who do not live in government housing must be counted as income because the payments offset the living expenses of the service member.

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  • Jury Misconduct – Will the Judge Order a New Trial?

    Anyone who has ever been a juror in a civil trial probably remembers the judge’s repeated instructions not to talk to anyone about the case prior to deliberations, to avoid communications with parties, witnesses, and attorneys, to report to the bailiff when anyone tries to talk to a juror about the case, to avoid media coverage of the trial, to refrain from doing independent investigation (nope, not even casual Googling), and to base the verdict only on the evidence.  The whole point, of course, is to make the trial as fair as possible.  But what if a juror goes astray? When can a losing party get relief based on the juror’s misdeeds?

    Rule 59 of the North Carolina Rules of Civil Procedure sets out nine categories of grounds for a new trial. Among them is Rule 59(a)(2), which in part allows a court to grant a new trial based on “misconduct of the jury.”  Yesterday in Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., the Court of Appeals assessed whether the trial judge should have ordered a new trial where, Continue Reading

  • Does Summary Judgment Divorce Require a Hearing?

    Absolute divorce trials seldom, if ever, involve any sort of courtroom drama. Most of the time, these ‘trials’ involve one party coming to court to testify for less than 5 minutes or the attorney of one party coming to court to hand up a summary judgment for the judge to sign. Most requests for divorce are not contested – in large part because there generally are no defenses to divorce other than the failure to live separate and apart for one year.

    So it is no wonder that some districts have decided to take the process of entering summary judgment divorce out of the courtroom. To save valuable court time, some districts have decided to adopt the practice of having judges enter summary judgment divorces after reviewing the pleadings in chambers. Notices are sent to the non-moving party stating that the summary judgment will be entered by the court on a specific date or at some point during a specific week. No actual hearing is held in the courtroom on the motion for summary judgment.

    Is this okay?

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  • Some Things to Remember About Interim Guardianship

    Betty is 75 years old and lives alone.   She was recently diagnosed with dementia.  Betty’s daughter, Pam, helps look after her mother and pay her monthly bills, but has noticed a decline in Betty’s memory and ability to communicate.  Upon reviewing Betty’s monthly bank statement, Pam noticed three large payments to companies Pam did not recognize.  After some investigation, Pam discovered that the drafts were the result of a telemarketer scam.  To stop future drafts, Pam went to the bank and asked them to close Betty’s account. However, the bank refused to close the account without Betty’s authorization and told Pam that she would need to obtain guardianship of Betty to be able to close the account.  Betty refused to consent to close the account as she was afraid Pam was trying to take too much control over her life.

    Pam went online, did some research, and decided to seek interim guardianship of her mother so that she can quickly block the telemarketers from accessing her mom’s account.   What are some things Pam should keep in mind about interim guardianship before heading down to the courthouse? Continue Reading

  • Juvenile Defenders Spend Time at a Juvenile Detention Center

    Every other year the School of Government and Office of Indigent Defense Services hold a multi-day skills training for juvenile defenders in North Carolina. The first day of this year’s intensive training was held at the Guilford County Juvenile Detention Center in Greensboro, NC. The juvenile defenders first heard sessions on adolescent brain development by Dr. Ayesha Chaudhary, Forensic Psychiatrist at Duke University, and detention advocacy by Mitch Feld, Director of Children’s Defense at the Council for Children’s Rights. This set the stage for the tour of the facility and conversations with the youth. Continue Reading

  • What Is the Responsible Individual List and Why Is Someone on It?

    With April recognized as Child Abuse Prevention Month, it seemed fitting to write about North Carolina’s Responsible Individuals List (RIL). If you’re thinking “I’m a responsible person; I should be on that list,” you should know what makes a person a “responsible individual” for purposes of placement on the RIL. The definition is somewhat counterintuitive; a “responsible individual” is a parent, guardian, custodian or caretaker who has abused or seriously neglected a child. G.S. 7B-101(18a). If you are identified as a “responsible individual,” your name will be added to the statewide RIL, which is maintained by the North Carolina Department of Health and Human Services. G.S. 7B-311(b). Continue Reading

  • And They Said It Again: Never Use Earning Capacity Without Bad Faith

    Last September, I began a blog post with the following statement; “Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words ‘bad faith.’” Imputing Income: Voluntary Unemployment is Not Enough. On April 5, 2016, the court of appeals once again reminded us that this overly dramatic generalization of the law frequently proves true. Lasecki v. Lasecki is a great opinion to read for a review of the law relating to establishing and enforcing child support when parents have an unincorporated separation agreement and it is yet another statement by the court that we should never consider a parent’s capacity to earn at any stage of a child support proceeding unless we first determine that the parent is intentionally depressing income in deliberate disregard of a support obligation.

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  • Extending a Juvenile’s Probation Term: Frequently Asked Questions

    Unless the court has specified a shorter term, a juvenile’s initial term of probation expires after one year, if not extended by the court. Extensions of probation are governed by G.S. 7B-2510(c), which was amended by HB 879 effective December 1, 2015. The statute now provides that “[p]rior to expiration of an order of probation, the court may extend it for an additional period of one year after notice and a hearing, if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the juvenile.” Since December, I’ve received numerous questions about the new notice requirement, which apparently is being interpreted in many different ways.  To help clarify this question and other issues related to extensions of probation, here’s a brief summary of FAQ’s about the procedure for extending a juvenile’s probation. Continue Reading

  • Child Custody and Support: Jurisdiction to Modify

    Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

    While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

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  • Business or Shelter: When the Commercial/Residential Distinction Makes a Difference in Landlord-Tenant Cases

    My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote:

    “I was just thinking about tenant/landlord relationships and types of leases. . . . What are the differences between regular lease agreements and that for commercial properties that we as magistrates need to know? Do they both have the same notice requirements? Are commercial property evictions cases that magistrates would preside over in small claims court? Are the grounds for eviction identified in [Small Claims Law] on page 157 the same for commercial leases?” In preparing to answer these questions, I learned some things I thought some of you might find interesting.

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  • Hope Someone Remembered to File the Motion to Modify……..

    ***UPDATE TO POST MAY 2, 2016: On April 26, 2016, the NC Supreme Court granted a temporary stay of the Court of Appeals ruling in the case discussed in this post. See SC docket #152P16-1.

     

    On Tuesday this week, the court of appeals held that a consent order modifying an existing child support order was void because no motion to modify was filed before the consent modification was entered by the court. In Catawba County ex. rel. Rackley v. Loggins, (NC App, April 5, 2016), the court held that GS 50-13.7 clearly requires that a motion in the cause requesting modification be filed in order to invoke the subject matter jurisdiction of the court to enter any further orders in the support case. Without the motion, the court has no subject matter jurisdiction to act.

    Unfortunately, it is not uncommon in North Carolina for orders to be entered modifying existing custody and support orders without anyone actually filing a motion to modify. This practice is especially common when all parties in the case agree to the modification. The court of appeals now has made it clear that this practice of ignoring required procedure results in invalid, unenforceable orders.

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  • Appeal Deadlines and Tolling under Rule 3(c)(2): Don’t Be So Sure!

    Even if you don’t know much about North Carolina’s Rules of Appellate Procedure, you probably know this:  There’s a 30-day time frame in which to appeal a civil judgment, and this deadline is jurisdictional—an untimely notice of appeal “mandates dismissal” of the appeal.  E.g., Bailey v. State, 353 N.C. 142, 156 (2000).  In other words, Thou Shalt Not Miss Thy Appeal Deadline.  Naturally, then, a would-be appellant needs to know when the 30-day appeal period begins and ends.

    The general time requirement is set out in Rule 3(c)(1), which makes clear that the notice of appeal must be filed and served within 30 days after entry of judgment as long as “the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure.”  (Served pursuant to Rule 5 within three days of entry of judgment.)  Under Rule 3(c)(2), however, when the party is not served within that three day period, the notice of appeal must be filed and served within 30 days “after service upon the party of a copy of the judgment.”

    By the plain language of Rule 3(c)(2), a party not served within three days would be led to think that its 30-day appeal clock starts when service is made.  Not so fast.  In a series of fairly recent opinions, the Court of Appeals has held that, if the appellant had some sort of actual notice of the judgment during those three days after its entry, Rule 3(c)(2) does not apply.  If there was actual notice, the 30 days instead began to run upon entry of judgment.  Here, in brief, are the opinions: Continue Reading

  • Retroactive Child Support: What is it and how is the amount determined?

    Prospective child support is the support ordered to be paid for the support of the child in the future. However, the court of appeals has held that all orders for prospective support must be effective as of the date the complaint seeking support was filed unless the trial court makes specific finding of fact to support ‘deviating’ from the general rule. Ex. rel. Miller v. Hinton, 147 NC App 700 (2001). This means that prospective support generally includes amounts ordered for a period of time before the support order is entered, but only that time period between the date of the filing of the complaint and the time of the entry of the child support order. And of course, GS 50-13.4 provides that the amount of prospective support generally is determined by application of the child support guidelines.

    But what about orders for support for a period of time before a complaint or motion for support is filed?

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