On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • Obtaining Relief from an Adjudication of Delinquency: Does Rule 60 Apply?

    This entry was contributed by LaToya Powell on January 27, 2016 at 12:36 pm and is filed under Juvenile Justice.

    Several years ago when I was an appellate attorney for the State, I filed a cert petition seeking appellate review of a court order granting a Rule 60(b)(6) motion to set aside an adjudication of delinquency for first degree sex offense. The court found that the allegations were proven beyond a reasonable doubt but then allowed the juvenile’s Rule 60(b) motion because the offense (fellatio) was four years old, it was not committed in a violent manner, the juvenile showed no risk of reoffending, and labeling the juvenile as a sex offender would do him more harm than good. Based on these findings, the court concluded that “extraordinary circumstances” existed and that justice required granting the juvenile’s motion. The Court of Appeals declined to review the order and still hasn’t addressed whether Rule 60(b) applies to delinquency cases.

    District court judges throughout the state disagree on the answer (which I discovered during a lively debate in my first juvenile delinquency course at the School of Government). There is no clear answer, but appellate cases suggest that Rule 60(b) does apply. However, it may not authorize setting aside an adjudication order, as described above. Here’s why.

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  • In re Foreclosure of Kenley: Proving Possession of the Note in a Power of Sale Foreclosure Proceeding

    This entry was contributed by Meredith Smith on January 22, 2016 at 9:41 am and is filed under Foreclosures.

    In an opinion published on January 5, 2016, a three-judge panel of the NC Court of Appeals addressed a frequently contested issue in power of sale foreclosure proceedings: whether the party seeking to foreclose by power of sale provided sufficient evidence to establish it was the holder of the note under G.S. 45-21.16(d)(i).   See In re Foreclosure of Kenley, ____ N.C. App. ____ (Jan. 5, 2016). Continue Reading

  • Ordering Law Enforcement Officers to Enforce a Child Custody Order

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

    It is not uncommon to see custody orders – both orders entered by North Carolina courts and orders from other states – containing language such as “Law enforcement officers shall assist in the enforcement of this custody order,” or “Law enforcement shall pick up the minor child and deliver the child to the custodial parent.” While most judges intentionally enter such orders only when there is reason to be concerned for the safety of the children, these provisions often are included as standard provisions in custody order templates throughout North Carolina and are extremely common in form orders used in other states.

     

    Must a law enforcement officer comply with such a provision in an order from another state? Does a North Carolina judge have the authority to order law enforcement involvement? Case law and statutes indicate that authority for law enforcement involvement is limited.

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  • Dormant or Discontinued? Service Deadlines and the Statute of Limitations

    This entry was contributed by Ann Anderson on January 13, 2016 at 5:00 am and is filed under Civil Practice, Civil Procedure-General.

    A plaintiff facing a soon-to-expire limitations period may feel a rush of relief when the complaint is clocked in to the clerk’s office on time and the summons is ready for service. Even after filing, though, it’s too early to stop watching the clock. Failing to observe Rule 4’s time limits on service can also create a statute of limitations problem.

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  • The Role of Fault in Alimony

    This entry was contributed by Cheryl Howell on January 8, 2016 at 5:00 am and is filed under Family Law.

    Long ago and far away, title and control of all of a woman’s property vested in her husband upon marriage. In exchange, the husband became responsible for support of the wife for the remainder of her life. The support obligation continued even through divorce, unless the bad conduct of the wife was the reason for the divorce.

    This is the common law foundation linking misconduct –fault – to alimony. Over time, the law came to require that any woman seeking alimony first prove that her husband’s conduct rather than her own was the cause of the marital breakup.

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  • The New Law Addressing Child Maltreatment in Child Care Facilities: It’s the State’s Responsibility

    This entry was contributed by Sara DePasquale on January 6, 2016 at 9:54 am and is filed under Child Welfare Law.

    *For more information about this new law, see the following supplemental book chapter, Suspected Child Maltreatment Occurring in a Child Care Facility, to the book, Reporting Child Abuse and Neglect in North Carolina. Both the supplemental chapter and book are available electronically and for free.

    It seems fitting that the first blog post of the 2016 calendar year addresses a new law that became effective on January 1st.  S.L. 2015-123 is “An Act to Transition Abuse and Neglect Investigations in Child Care Facilities to the Division of Child Development and Early Education [DCDEE] within the Department of Health and Human Services” (DHHS). In a nutshell, county child welfare agencies (county departments) retain responsibility for screening and assessing reports of suspected child abuse, neglect, and dependency by a parent, guardian, custodian, or caretaker but are no longer responsible for screening and assessing reports of suspected abuse and neglect of a child in a child care facility. As a result, petitions filed in district court by a county department that allege a child has been abused or neglected will no longer be based on circumstances created in a child care facility. Instead, the DCDEE has assumed responsibility for investigating suspected child maltreatment occurring in a child care facility. These investigations are a component of NCDEE’s licensure procedures and requirements. S.L. 2015-123 sets forth the new process in Article 7 of G.S. Chapter 110.

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  • Return of Firearms After a DVPO

    This entry was contributed by Cheryl Howell on December 18, 2015 at 5:00 am and is filed under Domestic Violence, Family Law.

    In a recent post, I wrote about requiring surrender of firearms in a DVPO. The court of appeals issued on opinion on Tuesday this week discussing when the court can order return of those firearms. In Underwood v. Hudson, the court reversed a trial court order denying return of weapons after the appellate court concluded defendant was not subject to the lifetime ban on possession which arises when a person is convicted of a “misdemeanor crime of domestic violence.”

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  • Juvenile Emancipations

    This entry was contributed by Sara DePasquale on December 16, 2015 at 11:12 am and is filed under Juvenile Law.

    In North Carolina, a 16 or 17 year old who has resided in the same North Carolina county for six months may petition the district court for an emancipation from his or her parents, guardian, or custodian.  According to statistics from the North Carolina Administrative Office of the Courts (AOC), there have been 986 emancipation filings between fiscal year 2007-2008 and 2014-2015, averaging over 120 cases a year.  Despite this number, there is a surprising lack of appellate decisions regarding juvenile emancipations. The lack of opinions has left both district courts and petitioners to figure out what the statutes require. Continue Reading

  • Reviewing Structured Settlement Sales: The Courts’ Role

    This entry was contributed by Ann Anderson on December 11, 2015 at 5:00 am and is filed under Civil Practice, Civil Procedure-General, Judicial Authority.

    “Get Cash for Your Structured Settlement Payments NOW!” “See What Your Structured Settlement Payments Can Do!” “Get the Cash You Need Now!”

    Ever see ads like these and wonder what they’re all about? If you’ve heard of structured settlements, you may know that they are a way for injured parties to receive compensation for their injuries over time—in periodic payments—rather than in an immediate lump sum. Typically funded through the purchase of annuities, these settlements promote financial stability for injured people by preventing the money from dissipating too quickly. They also are a useful way to preserve a minor’s settlement funds until after the minor reaches adulthood. The federal government encourages the use of structured settlements by allowing qualified payments to be excluded from the recipients’ taxable income.

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