Family Law Section

By Rebecca PooleJennifer Smith and Rachel Beard

Summaries of recent N.C. Court of Appeals Decisions

Rule 11 Sanctions

Caroline K. Grubbs v. Robert W. Grubbs Jr., Unpublished, No. COA16-129 (March 7, 2017)

Plaintiff and her trial counsel appealed from the trial court’s imposition of Rule 11 sanctions against them, denial of a Motion to Continue, and denial of a Motion for Reassignment of Judge. The Court of Appeals reversed in part, vacated in part, and remanded in part.

Defendant filed a Rule 11 Motion for Sanctions against Plaintiff and her counsel alleging that Plaintiff’s counsel sent another attorney from his firm to appear in court for him even though that attorney was not prepared to represent Plaintiff, and was only there to argue a Motion to Continue and Motion for Reassignment of Judge. Plaintiff moved to dismiss the Motion. At the hearing on the Motions for Sanctions and to Dismiss, the judge would not allow Plaintiff’s counsel to offer testimony from another attorney or make an offer of proof in support of his Motion to Dismiss, and the Court of Appeals noted this as a legitimate complaint. The trial court granted the Rule 11 motion and ordered payment of attorney’s fees and for Plaintiff’s counsel to attend anger management and cultural diversity classes as a result of his disrespectful behavior towards the court.

The Court of Appeals reversed the sanctions against Plaintiff as an abuse of discretion. Without a specific finding from the trial court which shows that Plaintiff had knowledge that signing the motion would effect the court proceedings and such action was taken to gain some temporary tactical advantage, the Court of Appeals was not persuaded that a signature alone would support Rule 11 sanctions against a client acting on an attorney’s advice.

The Court of Appeals vacated the trial court’s sanctions requiring Plaintiff’s counsel to pay attorney’s fees and undergo anger management and cultural diversity classes as a non-monetary sanction, and remanded to the trial court. The trial court’s imposition of non-monetary sanctions is defective as a remedial measure for Rule 11 sanctions.  There is no clear nexus between the delay caused and the sanctions selected. There are other avenues for disciplinary action to cure the behavior complained of.

Guardian appointment; Parent’s constitutional rights; Best interest of the juvenile; Verification of guardian’s resources

In re: C.P., C.P., J.C., J.T., Published, No. COA 16-808, (March 7, 2017)

Respondent appeals from the trial court’s order awarding guardianship of her minor child, James, to his paternal grandfather.  The Court of appeals affirmed the trial court’s decision.  The Respondent appealed based on the following: the trial court violated the Respondent’s constitutional rights because they concluded that the guardianship was in James’ best interest without finding  that the Respondent was unfit or acted in a manner inconsistent with her constitutional protected status, that the trial court erred in concluding guardianship was in James’ best interest as not being supported by findings made regarding positive aspects of the Respondent, and that the trial court failed to verify that paternal grandfather had “adequate financial resources” before appointing him as the guardian of the minor child.

The Court of Appeals disagreed with the Respondent’s contentions. Concerning whether to trial court violated the Respondent’s constitutional rights, since she did not raise the issue during any portion of the permanency hearing that issue is deemed to be waived and thus not addressed.  The Court of Appeals noted that there were other facts found by the trial court, which supported the conclusion that the guardianship was in the best interest of minor child.  It would not be proper to isolate those certain facts that the Respondent raised without considering all facts found as a whole by the trial court. Evidence that the paternal grandfather had “adequate financial resources” was supported by reports from YFS and the guardian ad litem.  In addition, the trial court incorporated the paternal grandfather’s motion to intervene and corresponding order into the findings of its dispositional order that set forth that he had been the minor child’s primary care taker two years prior to YFS taking custody and from 2011 to 2013 solely provided for the minor child’s food, clothing and other necessities.  The trial court was not required to give notice of the intent to take judicial notice of prior orders entered in the cause.

The trial court’s permanency planning order was affirmed due to paternal grandfather’s long, close relationship with the minor child, willingness to intervene in the proceedings, and undisputed evidence of his demonstrated ability to fulling provide for his grandson.

Implied-in-fact contract; Equitable powers; Partition

Ward v. Ward, Published, NC COA 16-832, (March 7, 2017)

The parties separated in 2000, and Defendant wife remained in the marital residence. She maintained the residence and paid its expenses. The parties divorced in 2006 with cross claims in Dare County for equitable distribution pending. Husband dismissed his case and Wife’s case was eventually dismissed for failing to meet court-ordered deadlines in 2011. In 2015, Husband filed an action for partition by sale with Dare County of the marital residence and Wife responded with various defenses and claims.

Wife’s primary argument against the partition was her allegation that Husband had waived his rights to the property through an implied-in-fact contract. Cotenants have the right to partition but can waive that right through an express or implied contract. An implied-in-fact contract can be established by actual conduct of the parties or some written agreement. The evidence at the trial court showed Husband ignored three different letters from Wife’s attorneys and that the parties had an agreement regarding alimony and child support. The Court of Appeals denied Wife’s claims that the trial court’s findings were not based on competent evidence.

Wife’s other argument was that Husband’s act of abandoning the marital relationship and property should prevent Husband from invoking the equitable powers of the court. The Court held that although “partition proceedings are equitable in nature,” a trial court only deny a cotentant’s right of partition in the event of an express or implied contract. See Kayann Props. Inc, v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966).