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

READ POST "New Regulations Regarding Contempt in IV-D Child Support Cases (June 30, 2017)"

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

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

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

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

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

More on Law Enforcement Involvement in Custody Cases In my earlier blog post, Ordering Law Enforcement Officers to Enforce a Child Custody Order, Jan. 15, 2016, I discussed North Carolina […]

The United Nations declared tomorrow as World Elder Abuse Awareness Day.  In North Carolina, Governor Cooper declared the time period spanning from Mother’s Day to Father’s Day Vulnerable Adult and […]

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

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

READ POST "Cohabitation is a Defense to Alimony (June 9, 2017)"

Update: On June 5, 2017, the NC Supreme Court allowed the state’s motion for a temporary stay of the Court of Appeals’ opinion in T.K., which indicates that further appellate […]

When I was a child, sharing the backseat of a station wagon with my brother and sister on long summer road trips, we used to play the First Thing You […]

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

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

Falling in a medical facility

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