Temporary orders are very common in domestic cases; ex parte domestic violence protective orders, temporary custody and child support orders, and orders for postseparation support are some examples. What happens to these temporary orders when plaintiff takes a voluntary dismissal of the underlying claim? Does the temporary order remain in effect until the court affirmatively sets it aside or does a voluntary dismissal automatically terminate all temporary orders? Do findings or conclusions made in the temporary orders have any impact on claims brought after the dismissal?
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The Clerk and Nunc Pro Tunc
At the end of a hearing, the clerk who is the presiding judicial official orally announces (or “renders”) her decision from the bench in favor of the petitioner seeking relief from the court. The clerk instructs the attorney for the petitioner to prepare an order with appropriate findings of fact and conclusions of law and to return the order to the court for review within two weeks. The clerk receives the order from the attorney ten days later. The clerk reviews the written order, makes a few changes to some findings of fact (remember, in the end it is the court’s order and not the attorney’s order who drafted it), and then signs and files it. Next to the clerk’s signature on the order is the date the order is signed and the earlier date of the hearing along with the words “nunc pro tunc.”
Does the clerk generally have the authority to enter an order nunc pro tunc? What is the meaning of this phrase? What is the clerk’s authority to enter an order nunc pro tunc in these specific circumstances? That’s the subject of today’s post.
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Incapacity to Proceed and Juveniles
Two days ago, Franklin County prosecutors dismissed a murder charge against an 18-year-old male who allegedly admitted to decapitating his mother because “he felt like it.” The case made national headlines back in March when it was reported that the teen emerged from the home holding a butcher knife in one hand and his mother’s head in the other when officers arrived on the scene. According to this article, the trial court recently found that the teen lacked capacity to proceed after he was examined by mental health professionals at Central Regional Hospital in Butner. This post discusses what it means for a juvenile to lack capacity to proceed and why it not only bars a criminal prosecution, but also, prohibits delinquency proceedings against a juvenile.
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A lease is a contract, but………
In my last post, I emphasized the contractual nature of a rental agreement. My main point was that the agreement between the landlord and tenant, whether oral or written, is where a small claims magistrate begins in a summary ejectment lawsuit. Often parties wrongly assume that some aspect of their mutual commitments “goes without saying.” In fact, a summary ejectment action is at its heart a breach of contract lawsuit, and the specific terms of the contract are the starting point in determining any dispute.
While the lease is always the beginning point, the magistrate’s analysis must often go further than just the parties’ agreement. As I’ve previously discussed, landlord-tenant law is replete with special rules, some (mostly procedural) tending to favor the landlord and some (mostly substantive) tending to favor the tenant. The US Supreme Court has pointed out that these procedural advantages and consumer protections, viewed together, work to balance the legal scales related to this unique legal relationship. Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). This post highlights some of the many ways consumer protection legislation affects the residential contractual agreements between landlords and tenants. The discussion that follows is limited to that sort of agreement. Continue Reading
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Child Support Modification: Yes, we’re still supposed to file a motion to modify
In 2016, the court of appeals held that a voluntary support agreement that modified an existing child support order was void because neither party filed a motion to modify as required by GS 50-13.7. Catawba County ex. Rel. Rackley, 784 SE2d 620 (N.C. App. 2016). On September 29, 2017, the North Carolina Supreme Court reversed the court of appeals and held that the order was not void.
This is important. Among other things, this decision means that if a court accepts a consent order for modification and the requirements of GS 50-13.7 have not been met, the consent order nevertheless is valid and enforceable. However, GS 50-13.7 still requires that a motion be filed and that the court conclude there has been a substantial change in circumstances before modifying a child support or a child custody order can be modified. The failure to comply with the statute is legal error that will support reversal by the court of appeals if there is a direct appeal.
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Choice of Law and Forum Selection in Business Contracts – New Law in North Carolina
Contracts often include agreements stating how litigation will be handled in the event the parties have a dispute. These agreements sometimes include “choice of law” and “forum selection” provisions. In a choice of law provision, the parties specify that the contract will be interpreted according to the law of a particular state. In a forum selection clause, the parties specify the State—and sometimes the specific county—in which disputes will be filed.
These provisions generally are valid in North Carolina, but our courts have declined to enforce them in some specific circumstances. This summer the General Assembly created a new Chapter 1G that attempts to remove these limits when parties choose North Carolina as the forum state and North Carolina law as the applicable law. The new legislation only affects provisions included in business contracts. It defines a “business contract” as “a contract or undertaking, contingent or otherwise, entered into primarily for business or commercial purposes,” and it explicitly excludes “employment contracts” and “consumer contracts.” See 1G-2(1), -5(1). Chapter 1G became effective June 26, 2017 and it applies to business contracts entered into before, on, or after that date. These are the main effects of Chapter 1G: Continue Reading
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Parent Defender Training: Looking Back and Moving Forward
The Indigent Defense Education group at the School of Government (SOG) in collaboration with Indigent Defense Services (IDS) held its 11th annual Parent Attorney Conference on August 10, 2017. Parent attorneys represent parents in abuse, neglect, dependency and termination of parental rights (A/N/D) proceedings.
The conference includes three to four topics centered on a particular theme. It always includes an ethics session and a case law and legislative update. Examples of past themes are Representing Parents with Mental Health Disorders, Working with Non-Removal Parents, Representing the Chemically Dependent Client, and Defending Complicated Medical Cases.
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Equitable Distribution: Divisible Property and Burdens of Proof
In my last post, I wrote about the marital property presumption and the significance of that presumption in the classification of marital property. Divisible property is not marital property, so the marital property presumption does not apply to help with the classification of property, value or debt acquired after the date of separation. So when there is evidence that marital property has increased in value between separation and the ED trial, does one party have to prove the cause of the increase before the court can distribute the increased value? Or, when one party has received income from a marital asset, like a rental house or an LLC, does one party have to prove that the income was not received as the result of the actions of a party before the court can divide the income between the parties?
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Ordering Restitution In A Juvenile Delinquency Case
A district court judge may require a juvenile to pay restitution to a victim as part of the juvenile’s disposition. The court’s authority to order restitution depends on the juvenile’s disposition level and whether the amount of restitution is supported by evidence in the record. The restitution order also must be supported by sufficient findings of fact. This post outlines the required findings and other rules that apply to juvenile restitution orders.
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Which County DSS Files the A/N/D Petition: That Is the Jurisdictional Question!
*SINCE THIS POST WAS PUBLISHED, THE N.C. SUPREME COURT REVERSED AND REMANDED THE COURT OF APPEALS DECISION DISCUSSED BELOW. A new blog post discussing the NC Supreme Court decision can be read here.
Earlier this year, the North Carolina Court of Appeals published In re A.P., 800 S.E.2d 77 (2017), which held that the county DSS that had an open child protective case did not have standing to file a neglect and dependency petition. As a result, the district court did not have subject matter jurisdiction to hear the action, and the adjudication and disposition orders were vacated. Since In re A.P. was decided, there are lots of questions about when a county DSS has standing to file an abuse, neglect, or dependency (A/N/D) petition and what happens in conflict of interest cases requiring a case to be transferred to a different county DSS. Continue Reading