On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • Child Support: Maintenance and Gifts Are Actual Income??

    This entry was contributed by Cheryl Howell on May 13, 2016 at 5:00 am and is filed under Family Law.

    The NC Child Support Guidelines provide that the term gross income “includes income from any source” and the Court of Appeal s has held repeatedly that the term should be construed very broadly. See e.g. Spicer v. Spicer, 168 NC App 283 (2005)(even the pain and suffering component of a personal injury settlement is income) and Moore v. Onafowora, 208 NC App 674 (2010)(bonuses received on a regular basis are included as recurring income). Unlike many other states, the NC Guidelines even count nonrecurring and one-time lump sum payments as income.

    In an unpublished opinion issued last week, the Court of Appeals reaffirmed a line of cases holding that gifts and ‘maintenance’ received from third parties also must be included as income. In Cumberland County v. Cheeks, May 3, 2016, the Court of Appeals held that BAH (Basic Allowance for Housing) payments received by military personnel who do not live in government housing must be counted as income because the payments offset the living expenses of the service member.

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  • Jury Misconduct – Will the Judge Order a New Trial?

    This entry was contributed by Ann Anderson on May 11, 2016 at 9:00 am and is filed under Civil Practice, Civil Procedure-General.

    Anyone who has ever been a juror in a civil trial probably remembers the judge’s repeated instructions not to talk to anyone about the case prior to deliberations, to avoid communications with parties, witnesses, and attorneys, to report to the bailiff when anyone tries to talk to a juror about the case, to avoid media coverage of the trial, to refrain from doing independent investigation (nope, not even casual Googling), and to base the verdict only on the evidence.  The whole point, of course, is to make the trial as fair as possible.  But what if a juror goes astray? When can a losing party get relief based on the juror’s misdeeds?

    Rule 59 of the North Carolina Rules of Civil Procedure sets out nine categories of grounds for a new trial. Among them is Rule 59(a)(2), which in part allows a court to grant a new trial based on “misconduct of the jury.”  Yesterday in Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., the Court of Appeals assessed whether the trial judge should have ordered a new trial where, Continue Reading

  • Does Summary Judgment Divorce Require a Hearing?

    This entry was contributed by Cheryl Howell on May 6, 2016 at 5:00 am and is filed under Family Law.

    Absolute divorce trials seldom, if ever, involve any sort of courtroom drama. Most of the time, these ‘trials’ involve one party coming to court to testify for less than 5 minutes or the attorney of one party coming to court to hand up a summary judgment for the judge to sign. Most requests for divorce are not contested – in large part because there generally are no defenses to divorce other than the failure to live separate and apart for one year.

    So it is no wonder that some districts have decided to take the process of entering summary judgment divorce out of the courtroom. To save valuable court time, some districts have decided to adopt the practice of having judges enter summary judgment divorces after reviewing the pleadings in chambers. Notices are sent to the non-moving party stating that the summary judgment will be entered by the court on a specific date or at some point during a specific week. No actual hearing is held in the courtroom on the motion for summary judgment.

    Is this okay?

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  • Some Things to Remember About Interim Guardianship

    This entry was contributed by Meredith Smith on May 4, 2016 at 11:52 am and is filed under Guardianship.

    Betty is 75 years old and lives alone.   She was recently diagnosed with dementia.  Betty’s daughter, Pam, helps look after her mother and pay her monthly bills, but has noticed a decline in Betty’s memory and ability to communicate.  Upon reviewing Betty’s monthly bank statement, Pam noticed three large payments to companies Pam did not recognize.  After some investigation, Pam discovered that the drafts were the result of a telemarketer scam.  To stop future drafts, Pam went to the bank and asked them to close Betty’s account. However, the bank refused to close the account without Betty’s authorization and told Pam that she would need to obtain guardianship of Betty to be able to close the account.  Betty refused to consent to close the account as she was afraid Pam was trying to take too much control over her life.

    Pam went online, did some research, and decided to seek interim guardianship of her mother so that she can quickly block the telemarketers from accessing her mom’s account.   What are some things Pam should keep in mind about interim guardianship before heading down to the courthouse? Continue Reading

  • Juvenile Defenders Spend Time at a Juvenile Detention Center

    This entry was contributed by Austine Long on April 29, 2016 at 8:48 am and is filed under Juvenile Justice.

    Every other year the School of Government and Office of Indigent Defense Services hold a multi-day skills training for juvenile defenders in North Carolina. The first day of this year’s intensive training was held at the Guilford County Juvenile Detention Center in Greensboro, NC. The juvenile defenders first heard sessions on adolescent brain development by Dr. Ayesha Chaudhary, Forensic Psychiatrist at Duke University, and detention advocacy by Mitch Feld, Director of Children’s Defense at the Council for Children’s Rights. This set the stage for the tour of the facility and conversations with the youth. Continue Reading

  • What Is the Responsible Individuals List and Why Is Someone on It?

    This entry was contributed by Sara DePasquale on April 27, 2016 at 1:57 pm and is filed under Child Welfare Law.

    With April recognized as Child Abuse Prevention Month, it seemed fitting to write about North Carolina’s Responsible Individuals List (RIL). If you’re thinking “I’m a responsible person; I should be on that list,” you should know what makes a person a “responsible individual” for purposes of placement on the RIL. The definition is somewhat counterintuitive; a “responsible individual” is a parent, guardian, custodian or caretaker who has abused or seriously neglected a child. G.S. 7B-101(18a). If you are identified as a “responsible individual,” your name will be added to the statewide RIL, which is maintained by the North Carolina Department of Health and Human Services. G.S. 7B-311(b). Continue Reading

  • And They Said It Again: Never Use Earning Capacity Without Bad Faith

    This entry was contributed by Cheryl Howell on April 22, 2016 at 5:00 am and is filed under Family Law.

    Last September, I began a blog post with the following statement; “Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words ‘bad faith.’” Imputing Income: Voluntary Unemployment is Not Enough. On April 5, 2016, the court of appeals once again reminded us that this overly dramatic generalization of the law frequently proves true. Lasecki v. Lasecki is a great opinion to read for a review of the law relating to establishing and enforcing child support when parents have an unincorporated separation agreement and it is yet another statement by the court that we should never consider a parent’s capacity to earn at any stage of a child support proceeding unless we first determine that the parent is intentionally depressing income in deliberate disregard of a support obligation.

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  • Extending a Juvenile’s Probation Term: Frequently Asked Questions

    This entry was contributed by LaToya Powell on April 20, 2016 at 11:16 am and is filed under Juvenile Justice.

    Unless the court has specified a shorter term, a juvenile’s initial term of probation expires after one year, if not extended by the court. Extensions of probation are governed by G.S. 7B-2510(c), which was amended by HB 879 effective December 1, 2015. The statute now provides that “[p]rior to expiration of an order of probation, the court may extend it for an additional period of one year after notice and a hearing, if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the juvenile.” Since December, I’ve received numerous questions about the new notice requirement, which apparently is being interpreted in many different ways.  To help clarify this question and other issues related to extensions of probation, here’s a brief summary of FAQ’s about the procedure for extending a juvenile’s probation. Continue Reading

  • Child Custody and Support: Jurisdiction to Modify

    This entry was contributed by Cheryl Howell on April 15, 2016 at 5:00 am and is filed under Family Law.

    Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

    While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

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  • Business or Shelter: When the Commercial/Residential Distinction Makes a Difference in Landlord-Tenant Cases

    This entry was contributed by Dona Lewandowski on April 13, 2016 at 10:00 am and is filed under Civil Law, Small Claims Law.

    My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote:

    “I was just thinking about tenant/landlord relationships and types of leases. . . . What are the differences between regular lease agreements and that for commercial properties that we as magistrates need to know? Do they both have the same notice requirements? Are commercial property evictions cases that magistrates would preside over in small claims court? Are the grounds for eviction identified in [Small Claims Law] on page 157 the same for commercial leases?” In preparing to answer these questions, I learned some things I thought some of you might find interesting.

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