Recent blog posts - 65 of 69

In my last post, I outlined the most significant procedural differences between general civil actions and actions brought in small claims court, which are governed in large part by GS Ch. 7A, Art. 19. Overall, the procedure in small claims court is simpler, faster, and cheaper. The substantive rules and procedures for summary ejectment, the most common small claims action, are highly specialized and allow for even faster relief. Summary ejectment is a legal action brought by a landlord seeking to remove a breaching tenant from possession of rental property.  North Carolina joins a large number of states in offering landlords this carefully crafted remedy, which may at first appear unusual in its provision of frank preferential treatment to a particular group of litigants seeking a particular remedy.  The US Supreme Court approved such specialized treatment many years ago, however, pointing out that providing an expedited procedure for these cases makes sense in the larger context of laws prohibiting the common law practice of self-help eviction. “The objective of achieving rapid and peaceful settlement of possessory disputes between landlord and tenant has ample historical explanation and support. It is not beyond the State’s power to implement that purpose by enacting special provisions applicable only to possessory disputes between landlord and tenant.” Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). In this blog entry, I’ll identify the most significant distinctions between the usual procedural rules applicable to small claims court and those applicable only to actions for summary ejectment.

READ POST "Special Rules for Summary Ejectment Actions (July 1, 2015)"

The North Carolina Court of Appeals has had quite a bit to say about ex parte DVPOs in the past few years. Repeatedly recognizing that while “an ex parte DVPO may be short-lived, … it has a potentially long-lasting and serious impact on a defendant, whether or not a DVPO is later issued,” Stancil v. Stancil, NC App (June 16, 2015), the court consistently has interpreted GS 50B-2 strictly.

Spoiler Alert !! Effective June 2, 2015, amendments were made to G.S. 7B-504.

For a reason never articulated by our appellate courts, debts incurred during a marriage are treated very differently in equitable distribution than is property. While public policy – codified as the marital property presumption found in GS 50-20(b) – is to include all property acquired during the marriage in the marital estate unless it is shown to fit within one of the limited categories of separate property, debt incurred during the marriage is excluded from the marital estate unless a party can prove the debt was incurred for the joint benefit of the parties.

READ POST "Equitable Distribution: Classification of Marital Debt (June 19, 2015)"

Years ago when my son was in the first grade, he took a 3 inch plastic toy knife to school. I received an alarming phone call from the principal.  She explained that he took the knife out of his book bag to show it to his classmates.  He did not make any threatening statements or attempt to use it in a threatening manner.  The principal said that even though the school had a zero tolerance policy, there would be no disciplinary action taken because of my son’s age. She also considered that he had no prior incidents or behavior issues and did not have any violent intentions when he showed his classmates the knife. Today, my son would likely have a different experience.

READ POST "Juvenile Defenders: Part of the Solution (June 17, 2015)"

Custody orders can be modified only when there has been a substantial change in circumstances affecting the welfare of the child. So what can be done when there is a change that is not actually substantial or that has little or no impact on the welfare of the child but which makes the existing parenting plan inconvenient or more expensive for the parents? For example, the work schedule of one parent changes in a way that makes the existing plan very inconvenient or significantly increases that parent’s childcare costs? Or, a child starts playing a new sport where the games are scheduled during the time child is supposed to visit the parent living in another state? Is there any room in the law for allowing minor “tweaks” to custody orders to accommodate normal life changes?

READ POST "“Tweaking” of Custody Orders Not Allowed (June 12, 2015)"

UPDATE: On February, 7, 2017, in an unpublished decision, In re Foreclosure of Iannucci, the NC Court of Appeals upheld the trial court’s reliance on a lost note affidavit as […]

G.S. 50-13.5 allows a court to enter a temporary custody order whenever the court deems it appropriate. The ability to enter a temporary order gives the court the power to address immediate needs of families going through the litigation process. There is no limit on the number of temporary orders that can be entered in a case and temporary orders can be changed at any time, by any judge, for any reason.

One of the most important factors affecting a juvenile court disposition is the juvenile’s delinquency history level, which in turn depends primarily on the juvenile’s prior delinquency adjudications. The delinquency […]

GS 50-8 requires verification for a complaint requesting a divorce. What can be done if the divorce complaint is filed without a verification or if the verification is faulty in some way? Must the complaint be dismissed and a new action instituted – requiring another payment of the substantial filing fee?

READ POST "Can a verification problem be corrected after a divorce complaint is filed? (May 29, 2015)"