After teaching and advising magistrates about landlord-tenant law for a little more than a decade, I’ve become familiar with their most common errors – which have, somewhat discouragingly, remained pretty much the same throughout that time. All of these errors arise from neglecting to independently analyze the requirements and defenses of each of the four grounds for eviction. Those grounds are briefly summarized below, followed by a list of errors most often made when magistrates confuse them. If you are such a magistrate, please consider having this blog post tattooed somewhere on your body:
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You May Not Need that Guardian of the Estate After All: Other Methods of Distributing Property to Minors
A guardian of the estate for any unemancipated minor may be appointed under G.S. Chapter 35A to receive and administer property on the minor’s behalf. G.S. 35A-1221; G.S. 35A-1251; G.S. 35A-1202(12) (requiring also that the minor must not be married). This is because such minors are legally incompetent to transact business or give consent for most purposes. G.S. 35A-1201(a)(6); see G.S. 7B-3507 (rights of emancipated minors). Unemancipated minors therefore need responsible, accountable adults to handle property or benefits to which they are entitled. Id.
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Mental Health Evaluations Required Prior to Delinquency Dispositions
Last week the Court of Appeals breathed new life into a decades-old law that requires district courts to refer juveniles who have been adjudicated delinquent, prior to disposition, to the area mental health, developmental disabilities, and substance abuse services director for an interdisciplinary evaluation if any evidence that the juvenile is mentally ill has been presented. This new decision, In the Matter of E.M., __ N.C.App. __ (January 15, 2019), raises many questions like, does it really mean any evidence of mental illness? And does it matter if the juvenile has already received mental health services? And who is the area mental health, developmental disabilities, and substance abuse services director anyways? Continue Reading
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An Appreciation of the Many Roles and Responsibilities of a District Court Judge
In December, the School of Government held the first week of orientation for new district court judges. The class included thirty-one new judges. Most of the judges took the bench January 1, though a handful were sworn in last year to fill vacancies by gubernatorial appointment. One of the challenges in creating an orientation program for new district court judges (which my colleague Cheryl Howell has done for more than two decades) is addressing the myriad of matters that fall within their jurisdiction.
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New Child Support Guidelines for 2019
Pursuant to GS 50-13.4(c1), the North Carolina Conference of Chief District Court Judges recently reviewed the North Carolina Child Support Guidelines. The Chief Judges considered comments and information from judges, attorneys, the North Carolina Administrative Office of the Courts in the form of a report from the national Center for Policy Research, the North Carolina Department of Health and Human Services, the North Carolina Bar Association, and the public during a public hearing held on June 7, 2018. Following this review, the Chief Judges updated the Schedule of Basic Support Obligations to reflect current tax rates, the most recent Consumer Price Index and the current federal poverty level. In addition, the Chief Judges made a few revisions to the substantive provisions of the Guidelines discussed below.
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No Contempt for the Nonpayment of Money Without Actual Evidence of Ability to Pay
In 2015, I wrote two blog posts summarizing the law relating to the use of contempt to enforce orders to pay support. No Default Judgment in Contempt (May 1, 2015) and Contempt: Establishing Ability to Pay (May 8, 2015). Recent appellate opinions justify revisiting this topic.
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Getting Beyond the Checkboxes: Delinquency Dispositional Orders
Dispositional decision making in delinquency cases can be complex. A list of 24 dispositional alternatives are available pursuant to G.S. 7B-2506. The choice among them must be driven by the disposition level allowed by G.S. 7B-2508 and the five factors outlined in G.S. 7B-2501(c). How much information must a court consider in making this decision and what findings need to be in an order of disposition? That question was not clearly answered until May of 2018. Continue Reading
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When the Nanny Won’t Leave: NC Law on When Employees are Tenants
In 2014 the story of a California family and a live-in nanny who refused to leave after her employment ended made international news –- including Dr. Phil! According to media accounts, the parties agreed that the nanny would provide childcare and light housekeeping in exchange for room and board. An argument ensued as to whether the nanny was performing her duties as originally agreed, and her employment was terminated. When the nanny retired to her bedroom rather than vacating the property, the situation deteriorated further. Law enforcement refused to intervene, saying the dispute was “a civil matter.” Eventually the nanny voluntarily moved out. One media account commented, “Even though the nanny is gone, [one of the family members] says she still casts a long dark shadow in her home, saying, ‘As far as I see it, she’s, in a way, like a vampire and she hasn’t yet drained us.’”
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Only “Proper” Rule 59 Motions Will Toll the Appeal Deadline: New Cases
To end the week, I’ll point out three recent Court of Appeals opinions that remind us that a Rule 59 (“new trial”) motion will not toll an appeal period if the motion does not actually seek proper Rule 59 relief. If, for example, the motion does not provide proper notice of the grounds for relief, or if it is being used merely as a general “motion for reconsideration,” it may not be considered “proper.” As I’ve discussed in previous posts (here and here), North Carolina Rule of Civil Procedure 59 permits a trial judge to order a new trial (or, through Rule 59(e), amendment of judgment) for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and other bases. A proper Rule 59 motion tolls the period for appeal of the underlying judgment. N.C. R. App. P. 3(c)(3); G.S. 1-279.1. But if a court determines that Rule 59 was not the appropriate vehicle for remedy sought, the appeal period will not have been tolled. These three recent published opinions are our newest examples of this outcome: Continue Reading
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Enforcing custody orders: civil contempt is not always the appropriate remedy
GS 50-13.3 provides that an order for custody is enforced by civil contempt and its disobedience is punished by criminal contempt. This statute mirrors case law regarding contempt; civil contempt is to force present compliance with an order and criminal contempt is to punish a past failure to comply and to discourage future noncompliance.
This distinction between civil and criminal contempt has been described by appellate courts as “murky at best,” and recent cases from the North Carolina Court of Appeals illustrate that contempt can be particularly difficult to apply correctly in custody cases. Most importantly however, these cases indicate that civil contempt probably is not an appropriate remedy for the most common enforcement issues that arise in custody cases.