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In my last post, Imputing Income: Voluntary Unemployment is Not Enough, I wrote about the bad faith rule; the long-established rule that child support and alimony orders must be based on the actual present income of the parties unless there is cause to impute income. When income is imputed, a support order is based on earning capacity rather than actual income. The bad faith rule provides that earning capacity can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation.

So what findings of fact are sufficient to establish bad faith?

For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19^th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment.  Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking.

A foster parent provides substitute care for a child who has been separated from his or her family because of abuse, neglect or dependency. G.S. 131D-10.2(9a);10A NCAC 70B.0101. When a […]

If the juvenile court or county department intends to place a child in an abuse, neglect, and dependency (A/N/D) case with a parent who lives outside of North Carolina, does the Interstate Compact on the Placement of Children (ICPC) apply?

Vern and Jane are divorced and have one son, Teddy, who has severe intellectual and developmental disabilities.  When Teddy turns 17 ½ years old, Vern files a petition with the […]

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.”

Maybe that statement is a little extreme, but it is intended to make a point. Alimony and child support obligations must be determined based on actual present income. Earning capacity rather than actual income can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation. In other words, it is not appropriate for an order to be based on what a person should be earning- or on minimum wage – rather than on what that person actually is earning unless evidence shows the party is acting in bad faith and the court actually includes that conclusion of law in the order.

READ POST "Imputing Income: Voluntary Unemployment is Not Enough (September 18, 2015)"

I promised to follow up my last post with a discussion of that little change in S.L. 2015-153 to G.S. 7A-314, the witness fee statute. First some background: General Statute […]

All civil child support orders must order the child’s parent or other responsible party to provide health insurance for the child if it is available at a reasonable cost. GS 50-13.11(a1). If coverage is not available at a reasonable cost when the support order is entered, the court must order that health insurance be obtained when it becomes available at a reasonable cost. Recent legislation changes how we determine whether insurance is available at a reasonable cost and the 2015 Child Support Guidelines have been amended to reflect the change.

READ POST "Child Support: When is Health Insurance Available at a Reasonable Cost? (September 11, 2015)"

Last week, a local news outlet reported that the 17-year-old quarterback of a Cumberland County high school was benched when school officials learned he was under investigation for allegedly sending “sexually explicit” photos of himself to his 16-year-old girlfriend. According to the report, officers took the teenager’s phone while investigating another incident and discovered photos of himself and his girlfriend on the phone. Now, both the teenager and his girlfriend are facing charges for “sexting” in what appears to have been a consensual exchange of nude photos between two teens in a dating relationship. Judging by the string of harsh comments to this report (which use various derogatory words to describe the charges), many people are outraged that such behavior, while improper, is a crime. Instead, they suggest that the behavior is a discipline issue that should be privately addressed by parents at home. In response to these concerns, this post examines the criminal laws in NC that possibly cover sexting and discusses their application to minors.

The General Assembly has amended the rule of procedure in civil cases for discovery of information about another party’s expert witness.  North Rule of Civil Procedure 26(b)(4) has largely been […]