Recent blog posts - 56 of 69

My last blog post discussed the loss of trial court jurisdiction following an appeal. But the court of appeals has held that only appropriate appeals remove jurisdiction from the trial court. If a party appeals an order that is not immediately appealable, the trial court is not divested of jurisdiction and can proceed with the merits of the case, even if the merits involve the issues on appeal. See T&T Development Co., Inc. v. Southern National Bank, 125 N.C. App. 600 (1997)(appeal of decision on a motion in limine did not deprive court of jurisdiction); Harris v. Harris, 58 N.C. App. 175, rev’d on other grounds, 307 N.C. 684 (1983)(appeal of an interlocutory order in a separation agreement case did not deprive court of jurisdiction).

Generally speaking, a party has the right to appeal only a final judgment. However, there are times that an interlocutory order is appropriate. So what should the court do when a party appeals an order that clearly is not a final judgment, such as a temporary custody order or a PSS order or an interim distribution in an ED case? When is the interlocutory appeal appropriate?

A. The Statute

When a person dies without a will, the person dies intestate and the person’s property is distributed in accordance with the Intestate Succession Act (the “Act”) found in Chapter 29 of the North Carolina General Statutes.  The Act states that if a person dies intestate without a spouse or lineal descendants (meaning children, grandchildren, etc.), the person’s parents are entitled to take equal shares of the person’s estate if both parents are alive.  G.S. 29-2(4); G.S. 29-15(3).  If only one parent is alive, then that surviving parent takes the entirety of the intestate estate. G.S. 29-15(3).

The parental right to inherit via intestate succession from a child is not an unqualified right. Under G.S. 31A-2, a parent who willfully abandons the care and maintenance of his or her child shall lose all rights to intestate succession in any part of the child’s estate. This bar includes any recovery from a wrongful death action because, pursuant to G.S. 28A-18-2(a), wrongful death proceeds are disposed of as provided in the Act, even though such assets pass outside of the estate.

Although a parent may have willfully abandoned a child, the parent may still inherit from a child if the parent is able to show an exception to the bar applies.  The two exceptions listed in the statute are if the abandoning parent:

1. Resumed care and maintenance at least one year prior to the death of the child and continued the same until the child’s death; or
2. Was deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child. G.S. 31A-2(1) and (2).

In civil litigation, delays can seem almost inevitable. Because litigation happens in the real world and not a perfect one, the Rules of Civil Procedure allow a little flexibility.  Within […]

In Ponder v. Ponder, NC App (May 3, 2016), the trial court conducted a lengthy hearing on plaintiff’s motion to renew a DVPO. Realizing the order needed numerous findings of fact to resolve the issues litigated but wanting to give plaintiff immediate protection, the trial court entered a renewal order with no findings of fact on AOC Form CV-314 and informed the parties that a more detailed supplemental order would replace the form order as soon as the court had time to complete it. Following entry of the form order, defendant appealed. The trial court then entered the supplemental order with extensive findings of fact only to have the court of appeals hold that both the form and the supplemental orders were void ab initio. The form order was void for a lack of findings and the supplemental order was void because it was entered after appeal was taken.

I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other.

North Carolina law long has provided that court-ordered alimony terminates upon the death of either the supporting or dependent spouse and upon the remarriage of the dependent spouse. Since 1995, the law provides that even if the dependent spouse does not remarry, alimony also will terminate if the receiver engages in cohabitation. Our appellate courts have struggled to provide clear guidance regarding how to determine when a relationship amounts to cohabitation. Last December, in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015), the court of appeals told us that the primary purpose of the cohabitation rule is to discourage “bad faith” decisions not to remarry and provided the clearest statement to date that cohabitation is proven by showing a relationship that provides economic benefits to the dependent spouse similar to those that would be provided by marriage.

READ POST "Alimony: Cohabitation is All About Money After All (May 27, 2016)"

Before On the Civil Side existed, the story about NFL running back, Adrian Peterson, pleading no contest to a misdemeanor reckless assault charge for disciplining his 4-year old son with a switch was national news. I wrote about what I thought would happen to him here in NC for our Criminal Law Blog: Parental Discipline: When Is It Abuse and/or a Crime? Since I wrote that post, the NC Court of Appeals published its first opinions interpreting the definition of abuse as applied to a child protective case that says:

a child is abused when his or her parent, guardian, custodian, or caretaker uses or allows to be used cruel or grossly inappropriate procedures or devices to modify the child’s behavior.

G.S. 7B-101(1)c.

In other words, a child is abused when parental discipline goes too far.  How does a court determine whether a parent has gone too far?

On Tuesday of this week, the Court of Appeals in Pope v. Pope upheld a decision by a trial judge to set aside a DVPO pursuant to GS 1A-1, Rule 60(b)(5). The trial court concluded, and the court of appeals agreed, that evidence showing plaintiff clearly was no longer afraid of defendant established that “it was no longer equitable for the judgment to have prospective application.”

READ POST "DVPO Can Be Set Aside When Victim is No Longer Afraid (May 20, 2016)"

A growing number of teens in NC and across the nation are facing criminal charges for sexting.

A few months ago, I wrote a blog post about a Fayetteville case involving two teens charged with felony child pornography for sending naked selfies to each other. The teens in that case, a boyfriend and girlfriend, ultimately pled guilty to misdemeanors (disseminating harmful material to minors) and their cases will be dismissed if they successfully complete a one-year term of probation under a deferred prosecution agreement. New sexting cases are reportedly being investigated in Wake County at two separate high schools, one of which may involve extortion. Based on my recent advising requests, other counties are also dealing with sexting issues in their schools. The offending students often end up with felony charges, at least initially, for behavior which one recent study suggests is a fairly common practice among U.S. teens. The question is how should the state respond?

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.

READ POST "Child Support: Maintenance and Gifts Are Actual Income?? (May 13, 2016)"