Recent blog posts - 68 of 70

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?

The majority of foreclosures in North Carolina are filed before the clerk of superior court as non-judicial power of sale foreclosures under Chapter 45.  The clerk of court at a power of sale foreclosure hearing is limited to hearing arguments related to six legal factors.  G.S. 45-21.16. Recently, I wrote a bulletin, which is now posted on the clerk of superior court Hot Topic page, about some of the legal defenses to a power of sale foreclosure that may be considered by the clerk at the foreclosure hearing.  One such defense, that a mere stamp is insufficient to transfer a promissory note, was addressed by the North Carolina Supreme Court.  In re Bass, 366 N.C. 464, 465 (2013). The court held that, yes, a mere stamp is enough to transfer a note.

I hear this question frequently. Despite much effort, I have yet to find a case or a statute indicating that a custody order from another state must be registered before it can be enforced or modified. Of course, an action must be initiated to invoke the jurisdiction of our courts; something that can be done with a complaint, service of process and the normal rules of civil procedure. It is clear from UIFSA, Chapter 52C, that support orders from other states must be registered before a North Carolina court can enforce or modify the support order and UIFSA provides a clear statutory procedure for registration. There is no similar statutory requirement for child custody orders.

READ POST "Does a foreign custody order have to be registered before our court can enforce or modify it? (March 6, 2015)"

This week the School of Government announced that it has made a free, PDF version of the North Carolina Pattern Jury Instructions available on the SOG Web site. All three […]