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• Imputing Income: Voluntary Unemployment is Not Enough

  This entry was contributed by Cheryl Howell on September 18, 2015 at 5:00 am and is filed under Family Law.

  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.

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• Expert Witness Fees as a Civil Cost – An Amendment to the Statute

  This entry was contributed by Ann Anderson on September 16, 2015 at 5:00 am and is filed under Civil Practice, Civil Procedure-General, Court Costs and Fees.

  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 7A-305 sets out the costs assessable in North Carolina civil actions. [Note that liability for costs in a given case is generally determined under G.S. Chapter 6.]   Subsection (d) of 7A-305 lists the expenses of a party that may be recovered as costs. Prior to 2007, there was confusion about whether the list of expenses in 7A-305(d) was exclusive, or whether additional expenses—such as expert witness fees—could also be awarded in the court’s discretion. Then, in July 2007, the statute was amended to make clear that subsection (d) was indeed an exclusive list. The list was also expanded to include several other types of expenses, including “reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.” 7A-305(d)(11)(emphasis added). Soon thereafter, the Court of Appeals held that this very limited category of expert fees could only be awarded if the expert witness was under subpoena.  See Jarrell v. The Charlotte Mecklenburg Hosp. Auth., 206 N.C. App. 559 (2010) (reiterated in Peters v. Pennington, 210 N.C. App. 1 (2011) and Lassiter v. North Carolina Baptist Hospitals, Inc., 761 S.E.2d 720 (N.C. App. 2014)) [see comments section below for update].

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• And Now We Don’t Have to Record Ex Parte DVPO Hearings

  This entry was contributed by Cheryl Howell on August 28, 2015 at 5:00 am and is filed under Family Law.

  In Stancill v. Stancill, 773 SE2d 890 (NC App, June 16, 2015), the court of appeals held that a hearing on a request for an ex parte DVPO pursuant to Chapter 50B is a “civil trial” within the meaning of GS 7A-198 – a statute that requires that all “civil trials” be recorded when court reporting personnel is unavailable. But the recording requirement for these ex parte orders was short-lived. The General Assembly very quickly amended GS 7A-198(e) to specifically exclude ex parte and emergency hearings conducted pursuant to GS Chapters 50B and 50C on or after July 31, 2015.

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