Small claims magistrates know that the small claims statutes are filled with rules about time limits. For example, small claims cases must be calendared for trial within 30 days of the complaint being filed, but summary ejectment actions must be calendared within seven (excluding weekends and holidays). A defendant must be served no later than five days before trial in all small claims actions other than summary ejectment, which requires only a two-day notice. The list goes on. Magistrates often ask about how to calculate these various time periods and the purpose of this post is to provide information about that often confusing task.
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Military Disability Pay: It’s not marital property but it is income
In an opinion issued yesterday, the NC Court of Appeals reaffirmed that while military disability pay cannot be distributed by a court in equitable distribution, it is income that can be considered when the trial court is looking for a source of payment for a distributive award. Lesh v. Lesh, NC App (Jan. 16, 2018). In reaching this decision, the court rejected the argument that this rule was changed by the recent decision by the US Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017), wherein the Court reiterated that federal law prohibits the distribution of military disability in equitable distribution.
Lesh and Howell present a good opportunity to review the law regarding military disability pay in domestic relations cases.
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Pleading Waiver of Governmental Immunity: What’s Enough?
In lawsuits against units of local government, the general rule is that the trial court must throw out the plaintiff’s claims if the unit raises the defense of governmental immunity and the complaint fails to allege a waiver of that immunity. This blog post looks at how detailed a waiver allegation must be for a complaint to survive an assertion of governmental immunity.
The Concept of Waiver
As I’ve explained in prior blog posts (here, here, and here), the defense of governmental immunity protects cities, counties, and other units of local government from civil liability for negligence and other claims – though not constitutional claims – that arise from the performance of governmental functions. The courts have recognized that a unit may waive this immunity through any of the three actions described in the next section. Essentially, by acting in any of those ways, a unit consents to be sued for any civil claims that fall within the scope of the waiver. Continue Reading
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Gatekeeper Orders in North Carolina Courts: What, When, and How
What is a gatekeeper order? Continue Reading
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Consecutive Sentences for Criminal Contempt
The following post was written by my colleague Jamie Markham and published on the North Carolina Criminal Blog on August 11, 2016.
One of the first posts I wrote on this blog was about the punishment for criminal contempt. The post included a discussion about whether sentences for contempt could be run consecutively—something our appellate courts hadn’t yet ruled on at the time. In State v. Burrow, the court of appeals approved a trial court’s orders sentencing a defendant to six consecutive 30-day terms of imprisonment for contempt.
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Equitable Distribution: Classification of a Lawyer’s Contingency Fee
In the recent case of Green v. Green, (N.C. App., Oct. 3, 2017), the court of appeals held that a fee received by a lawyer as the result of the resolution of a case his firm took on a contingency basis before the lawyer separated from his wife was not marital or divisible property. The court based this decision on the fact that the lawyer did not receive the fee until after the date of separation and did not have a right to receive the fee on the date of separation because the agreement provided that no fee would be received if there was no recovery in the case. The appellate court reversed the trial court decision that a portion of the fee was ‘deferred compensation’ for work the husband performed before the date of separation. The trial court had classified this portion of the fee as divisible property pursuant to GS 50-20(b)(4)(b) which provides that divisible property includes property received “as the result of the efforts of either spouse during the marriage and before the date of separation.”
This decision by the court of appeals is significant because it is the first time the court of appeals actually reviewed a decision by a trial court interpreting this particular category of divisible property and because the holding of the appellate court seems to say this category is much more limited than the language of the statute indicates. Continue Reading
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Show Me the Money: Verification of Adequate Resources Required when Ordering Custody or Guardianship to a Non-Parent in an A/N/D Action
If you’re a sports fan like me, you probably like sports movies. And if you like sports movies, you know the famous line from Jerry Maguire, “show me the money!” That line has some application to abuse, neglect, or dependency cases – specifically when a court is going to order custody or guardianship of a child who has been adjudicated abused, neglected, or dependent to a person who is not the child’s parent. The Juvenile Code requires that the court first verify that the proposed custodian or guardian “will have adequate resources to care appropriately for the juvenile.” G.S. 7B-903(a)(4), -906.1(j), -600(c).* Continue Reading
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What Happens to Temporary Orders When a Case is Dismissed?
Temporary orders are very common in domestic cases; ex parte domestic violence protective orders, temporary custody and child support orders, and orders for postseparation support are some examples. What happens to these temporary orders when plaintiff takes a voluntary dismissal of the underlying claim? Does the temporary order remain in effect until the court affirmatively sets it aside or does a voluntary dismissal automatically terminate all temporary orders? Do findings or conclusions made in the temporary orders have any impact on claims brought after the dismissal?
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The Clerk and Nunc Pro Tunc
At the end of a hearing, the clerk who is the presiding judicial official orally announces (or “renders”) her decision from the bench in favor of the petitioner seeking relief from the court. The clerk instructs the attorney for the petitioner to prepare an order with appropriate findings of fact and conclusions of law and to return the order to the court for review within two weeks. The clerk receives the order from the attorney ten days later. The clerk reviews the written order, makes a few changes to some findings of fact (remember, in the end it is the court’s order and not the attorney’s order who drafted it), and then signs and files it. Next to the clerk’s signature on the order is the date the order is signed and the earlier date of the hearing along with the words “nunc pro tunc.”
Does the clerk generally have the authority to enter an order nunc pro tunc? What is the meaning of this phrase? What is the clerk’s authority to enter an order nunc pro tunc in these specific circumstances? That’s the subject of today’s post.
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Ordering Restitution In A Juvenile Delinquency Case
A district court judge may require a juvenile to pay restitution to a victim as part of the juvenile’s disposition. The court’s authority to order restitution depends on the juvenile’s disposition level and whether the amount of restitution is supported by evidence in the record. The restitution order also must be supported by sufficient findings of fact. This post outlines the required findings and other rules that apply to juvenile restitution orders.