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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.

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:

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 12^th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143.

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

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 […]

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.

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.

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.

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?

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).