Recent blog posts - 59 of 69

In the recent case of Nicks v. Nicks, 774 SE2d 365 (NC App 2015), husband transferred property acquired during the marriage to an LLC and the LLC thereafter was transferred to a trust. All of this occurred before the date of separation. Understandably, the trial judge in the equitable distribution action filed after the parties separated felt that the property transferred to the LLC should be classified as marital property and distributed between the spouses, so the trial court classified the LLC itself as marital property and distributed it the husband as his share of the marital estate. The court of appeals vacated the ED judgment and remanded the case to the trial court after concluding the LLC was not marital property because it was not owned by either or both spouses on the date of separation.

Does this mean a spouse can avoid ED simply by transferring ownership of property to an LLC or other third party before the date of separation, or by allowing family members or others to hold legal title to property acquired with marital funds during the marriage?

READ POST "Equitable Distribution: When Marital Property is Not Owned by a Party…… (February 17, 2016)"

The equitable distribution statutes only give trial courts the authority to distribute marital property. This means equitable distribution is all about – and only about – identifying property owned by either or both spouses on the date of separation and determining how it should be distributed between those two people.

Marital property may include ownership interests in businesses and corporations. Just as parties can own stock in a traditional C corporation, parties also can own an LLC or an interest in an LLC. And just as a court would not be required to join, for example, Exon Corporation or Google before distributing stock owned by the parties, a court is not required to join an LLC in an ED case if the court simply distributes the marital ownership interest in the LLC between the parties.

READ POST "Equitable Distribution: When does the marital LLC have to be joined as a party? (February 12, 2016)"

North Carolina Rule of Civil Procedure 59 permits a trial judge to order a “new trial” for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence […]

Sara DePasquale wrote a blog on the Role of a Foster Parent in the A/N/D Court Action, which prompted me to explore the role of non-parents, and specifically their right to representation.

Prior to the filing of an abuse, neglect and dependency (A/N/D) petition, the child may be in the care of grandparents, other relatives or friends. They are providing support and maintenance and making daily decisions about the health and welfare of the child. This may be more permanent substitute care compared to the temporary care provided by a foster parent.

Once the petition is filed each parent named in the petition is appointed provisional counsel pursuant to G.S. 7B-602. But what about non-parents? The relative or friend who has custody of or is caring for the child may meet the statutory definition of “caretaker” or “custodian”. See G.S. 7B-101. Also, the child may have a court appointed guardian [G.S.7B-600; G.S. 35A-1202(7) & (10)] at the time the petition is filed. Does the caretaker, custodian or guardian have a right to court appointed counsel if they are indigent?

After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A.  The matter is heard by the clerk of superior court.  DSS, as the petitioner, has the burden of proof.  Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person.

For the last 15 years, there has been an increased awareness of human trafficking in the U.S. That awareness has resulted in various federal and state laws seeking both to prevent human trafficking and protect the victims of human trafficking.  See Trafficking Victims and Protection Act of 2000, 22 U.S.A. Chapter 78 (reauthorized in 2003, 2005, 2008, and 2013).  Today’s post recognizes that January is National Slavery and Human Trafficking Prevention Month and discusses recent federal laws and accompanying state policy that focus on identifying and providing services to children who are in foster care and are victims of sex trafficking.

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.

READ POST "Obtaining Relief from an Adjudication of Delinquency: Does Rule 60 Apply? (January 27, 2016)"

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).

Today’s post was written by my colleague Alyson Grine. While she works and writes primarily about criminal law, the topic of implicit bias is an important one for the civil side of things as well.

READ POST "Implicit Bias: Why Race is Hard Even when People are Good* (January 20, 2016)"

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.

READ POST "Ordering Law Enforcement Officers to Enforce a Child Custody Order (January 15, 2016)"