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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 […]

Who signs an A/N/D/ petition and whether it is properly verified determines if the court has subject matter jurisdiction over the proceeding. Without subject matter jurisdiction, the court has no authority to act and any judgment entered is void. In re T.R.P., 360 N.C. 588 (2006). Because subject matter jurisdiction can be raised at any time, even for the first time on appeal, and it cannot be waived or consented to, a county could discover weeks, months, or years after the action is commenced that all its orders in the action are void. This is problematic for many reasons.

Since I discussed service members in my recent post about the Servicemembers Civil Relief Act, it’s a good time to review North Carolina’s Uniform Deployed Parents Custody and Visitation Act, GS 50A-350, et. seq, effective since October 1, 2013. The Act is important for military families and for judges struggling to resolve custody issues when a military parent must deploy.

An indigent parent in a child support case is entitled to appointed counsel only for contempt proceedings. But child support cases can be complex. Where should appointed counsel draw the line when representing these parents? Should they limit representation to the actual contempt proceeding or do they delve further? Is the underlying order valid? Is there a good cause to adjust the arrears or is there a change of circumstances justifying a modification of support?  Judges must approve the fee applications for the time spent on cases, so counsel should take care to act within the scope of their representation.

During deliberations in a motorcycle accident trial, the jury asks to view and discuss some exhibits in the jury room: a series of admitted photos depicting part of the accident scene. May the judge allow the jury to take the photos into the jury room? As with most things, it depends.

This question used to be governed by the “well-settled” rule in Nunnery v. Baucom, 135 N.C. App. 556 (1999), that “trial exhibits introduced into evidence may not be present in the jury room during deliberations unless both parties consent.” For civil cases, the “consent required” rule was replaced in October 2007 by G.S. 1-181.2, which governs both open-court and jury room evidence review. Although this statute is now a few years old, it is perhaps not as widely-known as it could be. For a recent case in point, see Redd v. Wilcohess, LLC, 745 S.E.2d 10 (N.C. App. 2013). So, here’s a review of the standards established by G.S. 1-181.2.