The NC Court of Appeals recently answered a question I’ve long wondered about in Brown v. Patel, 2021-NCCOA-342 (20 July 2021). Although this lawsuit started out as a bedbug case – which is definitely on my list of interesting topics! – it ended up being about what happens when a magistrate doesn’t make a decision. Read on for the riveting details!
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Equitable distribution: Classification of Life Insurance Policies and Proceeds
In Crago v. Crago, 268 NC App 154 (2019), the court of appeal rejected a request to apply the analytic approach to classify life insurance proceeds received by wife before the date of separation. The analytic approach is the classification approach adopted by the appellate court to classify personal injury settlement proceeds, see Johnson v. Johnson, 317 NC 437 (1986), and workers compensation payments, see Freeman v. Freeman, 107 NC App 644 (1992). The analytic approach classifies the proceeds according to what the payments were intended to compensate. So, to the extent a personal injury settlement replaces economic loss to the marriage, it is marital. To the extent it compensates a spouse for future lost wages or personal pain and suffering, it is separate.
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School Notification of Felony Delinquency Charges
As students across North Carolina head back to school, it is a good time to review the law that governs notifying schools about juvenile delinquency cases. Prior to raise the age, notification of charges for high school students required an understanding of the requirements under both the Juvenile Code for delinquency cases and the Criminal Code for cases in which students were accused of crimes committed at ages 16 and 17. Now, under the post-raise the age statutory structure of juvenile jurisdiction, the Juvenile Code requirements will govern nearly all school notifications.
Here are the headlines:
- school notification can only be made by a juvenile court counselor to the school principal and under the specific circumstances outlined in the Juvenile Code, and
- the information disclosed must remain confidential and may only be used by the school in the limited way allowed for by the law.
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Welcome, Emily Turner!
The School of Government and the North Carolina Judicial College are excited to announce the addition of Emily Turner to the faculty. Emily joined the School in July 2021 and will be the lead faculty member working with district court judges, superior court judges, clerks of court, and magistrates on legal and practical aspects of conducting civil trials and contested hearings with a particular focus on the North Carolina Rules of Civil Procedure.
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A Reminder: In Most Cases, Judges Can’t Serve as Court-Appointed Fiduciaries
The clerk of superior court, as the ex officio judge of probate in North Carolina, has original and exclusive jurisdiction over the appointment and removal of certain fiduciaries. See G.S. 7A-241. This includes the executor or administrator of a decedent’s estate (also known as the personal representative), the trustee of a trust, and a guardian of an incompetent adult or minor child’s estate. G.S. 28A-2-4(a)(2) (estate); G.S. 36C-2-203(a)(1) (trust); G.S. 35A-1203 (guardianship). When determining whether to appoint or remove these fiduciaries, the clerk must determine whether the person applying to serve in that capacity is qualified to serve. For example, a person may not serve as executor of an estate who is under the age of 18, who is a convicted felon whose rights have not been restored, or who is found to be otherwise unsuitable by the clerk. G.S. 28A-4-2(1), (3), (9).
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S.L. 2021-100 Amends the Juvenile Code Related to Abuse, Neglect, Dependency and Termination of Parental Rights
As the 2021 Legislative Session continues, laws that revise the Juvenile Code are being enacted. The most recent session law is S.L. 2021-100, which amends various provisions of Subchapter I of Chapter 7B of the General Statutes – the laws that relate to abuse, neglect, dependency and termination of parental rights proceedings. This blog summarizes the amendments made by “An Act to Make Revisions to the Juvenile Code Pursuant to Recommendations by the Court Improvement Program.” Continue Reading
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Modification of custody: establishing impact of change on welfare of child
G.S. 50-13.7(a) provides that “… an order … for the custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.” However, case law supplements this statute to provide that an order may be modified only upon a showing of a substantial change in circumstances since the entry of the original order, Savani v. Savani, 102 NC App 496 (2001), and the substantial change must affect the welfare of the minor child. Pulliam v. Smith, 348 NC 616 (1998); Shipman v. Shipman, 357 NC 471 (2003).
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Raise the Age and Enforcement of Domestic Violence Protective Orders and Civil No-Contact Orders
The Juvenile Justice Reinvestment Act and its subsequent corresponding legislation raised the age of juvenile jurisdiction to 18 for most offenses committed at ages 16 or 17 that would otherwise be crimes. S.L. 2017-57, §§ 16.D.4.(a)-16.D.4.(tt) and S.L. 2019-186. Last summer, the legislature enacted changes to the criminal law to ensure that minors who fall outside of raise the age and continue to be tried as adults are not housed in adult jails. S.L. 2020-83, §§ 8.(a)-8.(p). While it may feel like these changes must mean that the age of 18 is now consistently the legal demarcation for being treated as an adult, the law continues to use the age of 16 as a defining line in some instances. For example, Chapter 50B (Domestic Violence) and Chapter 50C (Civil No-Contact Orders) continue to provide that domestic violence protective orders (DVPOs) and Civil No-Contact Orders can be obtained against youth once they reach the age of 16. This blog addresses how enforcement of these orders against youth who are ages 16 and 17 is affected by raise the age and by the removal of minors from jails. Continue Reading
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My Last Post on the CDC Eviction Moratorium, Almost for Certain
Readers are probably aware that the CDC Eviction Moratorium has been extended until July 31, accompanied for the first time by a statement that it is unlikely to be further extended. However, the Governor’s Executive Order 171 was not extended and so expired on June 30. I’ve received many questions from judicial officials and other occupants of Landlord-Tenant Land about what the law of summary ejectment looks like for July. For a summary of both the CDC Order and EO 171, I encourage you to read my prior blog post, in which I discuss both orders separately. That post should be helpful in making clear what law continues to apply (i.e., the CDC Order) and what law is no longer in effect (i.e., EO 171). In this memo, I’m offering a few specific observations in response to the most frequent questions I’ve been getting.
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The Conservatorship of Britney Spears and a Ward’s Right to Petition for Restoration of Competency
Britney Spears and the details of her conservatorship—the California equivalent of incompetency and guardianship in North Carolina—have recently been front page news, leading people to reach out to me with questions. While the case is remarkable, in part because of Ms. Spears’ fame and the massive amounts of wealth involved, the themes and central issues are familiar to those who handle these types of cases. Allegations of abuses of power, bitter family disputes, and pleas for autonomy and a return to normalcy, are not uncommon in incompetency and guardianship proceedings. Still, there are important lessons in Ms. Spears’ case for attorneys who handle guardianship work in North Carolina, including guardian ad litem attorneys in Chapter 35A proceedings.