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Last week, two bills were introduced in the NC House pertaining to adult guardianship* – H817 and H883.  The first proposes the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) by creating a new Chapter 35B.  The second directs the Legislative Research Commission to study UAGPPJA and recommend whether NC should adopt the act.

So just what is UAGPPJA? (Pronounced, “You-Ah-Gap-Jah”)

Almost every equitable distribution case involves marital debt. And because there often is a significant amount of time between the date of separation – the point in time when the marital estate is created and valued – and the date the marital estate actually is distributed, most every case also involves post-separation changes in the amount owed on that marital debt. The amount either increases because neither party pays the bills and interest and finance charges accrue, or the amount decreases because one of the parties make payments. North Carolina law has struggled to determine the best way to address these changes in the distribution process.

READ POST "Equitable Distribution: Post-Separation Changes in Debt (April 17, 2015)"

*** Note, since this blog post was published, the General Assembly enacted S.L. 2015-58, which replaces SB 331. For more information, see this blog post on juvenile code reform legislation.

Subchapter II of the North Carolina Juvenile Code has seen few changes, since the Juvenile Code was rewritten in 1998. However, several bills are currently pending that suggest change may be coming. Some of these pending bills seek to clarify existing statutory procedures or create new procedures to provide guidance where the Juvenile Code is currently silent. However, two of the proposed changes are intended to reverse recent appellate court decisions interpreting the Juvenile Code. This list, although not exhaustive, describes pending bills that are likely to be of interest to juvenile court officials.

Chapter 50B expressly authorizes entry of consent DVPOs, GS 50B-1(c), and many cases are resolved in this way. Overall, this is a good thing because consent orders:

• Spare both parties, who often are appearing pro se, the stress and uncertainty of a trial;
• Allow the parties to create orders that will best meet their specific needs; and
• Conserve valuable court time.

It is not uncommon for a defendant to be willing to agree to the entry of an order but not willing to agree that the specific acts alleged in the complaint actually occurred.  Can a DVPO be entered without the specifics?

North Carolina law permits summary ejectment from residential housing only for reasons specified in the statute. G.S. 42-25.6.  In Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), the North Carolina Court of Appeals decided a case—and created new law – related to one of the most common grounds for summary ejectment: breach of a lease condition which, according to the lease itself, triggers the landlord’s right to declare the lease forfeited.

READ POST "Summary Ejectment & Unconscionability: When Breach of the Lease Is Not Enough (April 8, 2015)"

The district court has exclusive, original jurisdiction over all abuse, neglect, and dependency (A/N/D) proceedings. When a court obtains that jurisdiction after an A/N/D petition has been filed by a county department of social services (DSS), “any other civil action in this State in which the custody of the juvenile is an issue is automatically stayed as to that issue, unless the juvenile proceeding and the civil custody action or claim are consolidated … or the court in the juvenile proceeding enters an order dissolving the stay.” G.S. 7B-200(c)(1).

What does this mean?

Juveniles, like adults, may be held in contempt for disrespecting the court or interfering with the proper administration of justice. Consider the actions of the juveniles in the following cases: (1) Evan, age 14, was adjudicated delinquent for simple possession of marijuana. At the disposition hearing, the judge asked Evan, “Where do you get your marijuana?” and he refused to answer. Although the judge repeated this question several times, he still refused to answer. (2) Kim, age 15, was adjudicated as an undisciplined juvenile for habitual, unlawful absences from school. The terms of her protective supervision order required her to attend school every day, but she has repeatedly skipped school, since the disposition hearing. May either juvenile be held in contempt? The short answer is yes.

The equitable distribution statute contains specific requirements for the classification and distribution of “pension, retirement or other deferred compensation benefits.” GS 50-20.1. Because these retirement accounts frequently are the most valuable asset in an equitable distribution case, it is significant that the court of appeals held in Watkins v. Watkins, 746 S.E.2d 394 (N.C. App. 2013), that a 401K, one of the most common retirement accounts today, generally is not “deferred compensation” and therefore does not fall within the restrictions of GS 50-20.1.

READ POST "When is a 401k Not a Retirement Account? (March 20, 2015)"

The “savings” provision of North Carolina Rule of Civil Procedure 41(a) can be a lifeline for a plaintiff who, for one reason or another, can’t proceed with its case the first time around. Rule 41(a)(1) allows a plaintiff to voluntarily dismiss its case without prejudice by giving notice of dismissal any time before it rests its case. Plaintiff may file the action again within one year, and the statute of limitations on its claim is extended for that refiling period. Rule 41(a)(1); North Carolina RR Co. v. Ferguson Build. Supp., Inc., 103 N.C. App. 768, 772–73 (1991). As generous as the savings provision is, it can be a tricky business. If done improperly or at the wrong time, a dismissal could doom a case rather than save it. Before giving notice of voluntary dismissal, heed the following reminders:

It is not uncommon for persons under 18 to commit acts of domestic violence or need protection from domestic violence. Common questions that arise include:

• Can a minor be a defendant in a 50B proceeding?
• If so, how is the child served and what happens when the child violates the DVPO?
• Can a minor be a plaintiff?
• Does a minor need to be a plaintiff to be protected by a DVPO?