Summaries by Jeff Russell, Rebecca Poole, Jennifer Smith, Rachel Beard, Katie Fowler and Jessica Heffner

Custody Modification, Failed Reunification Therapy, Williams v. Chaney, COA16-834, July 18, 2017

Defendant–father appealed from a custody modification order which found that previous reunification therapy between the minor child and plaintiff–mother had failed, and that further reunification therapy would “re-traumatize” the minor child, but inexplicably ordered plaintiff–mother and the minor child to continue reunification therapy. Because the trial court’s findings of fact did not support its conclusions of law, the Court of Appeals vacated in part the custody modification order and remanded the case to the trial court with very specific instructions on what to include in the order on remand, including that a substantial change in circumstances had not occurred and that additional counseling was not required.

Of note in this appeal is that the parties were both pro se at the trial level and on appeal. Plaintiff–mother did not participate in the appeal and the Court of Appeals expressed a lack of confidence that the convoluted record on appeal in this case was complete.

Equitable Distribution & Alimony – Attorney’s Fees and Expert Witness Costs, Slaughter v. Slaughter, COA16-1153, July 18, 2017

The Court of Appeals affirmed in part, remanded in part, reversed in part, and dismissed in part the trial court’s orders.

On appeal, the Court held that where affidavits on attorney’s fees were admitted into evidence without objection, and the trial court made explicit findings regarding trial counsel’s experience and the reasonableness of his fees, the trial court did not abuse its discretion in awarding attorney’s fees. However, where there was no evidence that an expert witness was a court-appointed expert, the trial court erred in awarding expert witness costs for any expense other than the expert’s testimony. Where wife raised issues on cross-appeal that were not raised on appeal, and did so outside of the thirty (30) day window for appeals but within the ten (10) day window for cross-appeals, the trial court erred in denying husband’s motion to dismiss wife’s appeal with respect to the child support order.

Equitable Distribution, Malecek v. Williams, COA16-830, Sept. 5, 2017

This case concerns two common law causes of action: alienation of affection and criminal conversation.  Defendant Williams contends that these “aging common law torts” are facially unconstitutional because the violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech and expression with other consenting adults. The Court of Appeals rejected this facial constitutional challenge.  These torts are “designed to prevent and remedy personal injury, and protect the promise of monogamy that accompanies most marriage commitments.”  Compared to Lawrence v. Texas, where the law at issue was not supported by any legitimate state interest and instead “stemmed from moral disapproval and bigotry.”  The Court of Appeals further states that they “cannot hold a law facially unconstitutional because it is bad policy, and thus they reversed the trial court’s order and remanded it for further proceedings.

Dr. Williams, the Defendant, moved to dismiss Mr. Malecek’s claims under Rule 12(b)(6) f the Rules of Civil Procedure on the grounds that North Carolina’s common law causes of action for alienation of affection and criminal conversation are facially unconstitutional.  The court reviewed this matter on a de novo basis.  The Court of Appeals stated that the trial court did not identify the particular constitutional doctrine upon which it relied to grant the Rule 12(b)(6) motion.

Substantive Due Process

Dr. Williams argues that the claims offend the Due Process Clause of the Fourteenth Amendment by restraining one’s liberty to have intimate sexual relations with another consenting adult.  Lawrence noted that the Fourteenth Amendment generally prohibits States from regulating private consensual activity “absent injury to a person or abuse of an institution a law protects.”  This caveat is what saves these claims.  These claims seek to remedy and injury to a person, and marriage would be considered an institution the law would protect.  The State has a legitimate interest in protecting the institution of marriage, ensuring that married couples honor their vows, and deterring conduct that would cause injury to one of the spouses.

Freedom of Speech, Expression and Association

In a facial challenge, the presumption is that the law is constitutional, and a court may not strike it down if it may be upheld on any reasonable ground.  Affordable Care, Inc. v. N.C. State Bd. Of Dental Exam’rs, 153 N.C. App. 527, 539, 571 S.E.2d. 52, 61 (2002.)  Dr. Williams cannot prevail on his facial challenge unless there is no reasonable set of circumstances in which these torts would be constitutional.  While the Court of Appeals agreed that facing liability for engaging in intimate sexual relations with a married person can implicate the First and Fourteenth Amendment rights to free speech and expression, the mere fact that these common law claims can burden the right to free speech and expression does not mean they must be struck down.  These torts may restrict certain forms of intimate speech or expression, but they do so for reasons unrelated to the content of that speech or expression.  This type of content-neutral law will be upheld if it is “narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech.”  Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 294 (1984.)  The Court of Appeals therefore determined these common law torts are facially valid under this standard.  The Court of Appeals notes that this holding does not mean that every application of these common law torts is constitutional.  There may be situations where an as-applied challenge to these laws could succeed.  This ruling only stands for the claims of alienation of affections and criminal conversation not being facially invalid uner the first and fourteenth Amendments.

Equitable Distribution, Alimony; Earning Capacity vs. Current Actual Income, Green v. Green, No. COA16-1102, Oct. 23, 2017

The Court of Appeals reversed an alimony order and parts of the equitable distribution order in a Forsyth County case involving a partner whose law firm earned a sizable contingency fee that complicated the property case.

The firm entered into the contingency case during the parties’ marriage but settled the case after the parties’ separation. The trial court originally classified the fee earned as both “deferred compensation” and divisible property, which the Court of Appeals noted could not be the case – deferred compensation is marital property pursuant to the General Assembly. The contingency issue is one of first impression and after applying the rules of statutory construction, the Court determined that a contingency fee was not similar to a pension or retirement and thus the General Assembly did not mean to include contingency fees as deferred compensation. The Court further reasoned that the lawyer was not entitled to payment on the date of separation – the case was still in litigation – and even if it were “deferred compensation” it was still not marital property.

The Court also rejected the trial court’s classification of the contingency fee as divisible, because of “contractual rights” in N.C.G.S. 50-0(b)(4)(b).  For the Court, the key point was again that the lawyer wasn’t entitled to payment prior to the parties’ separation. The Court held the lawyer’s portion of the contingency fee – worth more than $900,000 after taxes – was separate property.

The lawyer appealed the portion of the judgment relating to the marital residence, which awarded the marital residence and related mortgage to the spouse and ordered the spouse “to assume and pay in full” the mortgage.  The Court of Appeals upheld the discussion and said the mortgage was clearly awarded. Judge Tyson wrote a concurring opinion regarding the meaning of “assume and pay in full” and suggests the trial court remove any ambiguity when the case returns on remand.

The lawyer also objecting to a distributive award of more than $150,000, arguing that there was no evidence he had sufficient liquidity to pay the debt.  The Court of Appeals noted several accounts in evidence that showed the lawyer had the funds.

Lastly, the lawyer argued that the trial court failed to make sufficient findings of fact to support a $6,000 a month alimony award.  The trial court averaged of the lawyer’s prior two years of income and did not make a finding of the lawyer’s actual income.  The average of prior years’ income is acceptable in matters where the trial court does not have reliable or sufficient information of the supporting spouse’s income. The Court reversed the alimony order as an abuse of discretion because the trial court failed to determine the lawyer’s actual current income and whether that information was credible.

Deviation From Child Support Guidelines, Attorney’s Fees and Costs, Sarno v. Sarno, COA16-1267, Oct. 9, 2017

The parties married in 2000, and separated in 2006.  They were the natural parents of one minor child.  The parties filed their respective claims in 2009 and a trial custody, child support, and attorney fees took place in 2011.  An order was entered in 2012 for permanent custody, where in Defendant was awarded primary physical custody, due primarily to Plaintiff’s plans to relocate out of state.  The trial court did not rule on child support or attorney fees due to lack of time to hear evidence.  In late 2012, the parties resumed their hearing on child support and attorney fees.  In 2013, an order for child support and attorney fees was entered by the trial court.  Plaintiff later filed a motion to modify child custody, which was pending at the time of the child support hearing.  A hearing was held, and Defendant was granted primary physical custody and legal custody of the minor child.

Plaintiff appealed from the child support and attorney fees order.  Plaintiff first argued that the trial court erred by not making appropriate findings when it deviated from the child support guidelines.  The Court agreed, stating that the trial court had failed to make findings regarding the appropriate amount of Guideline support, about the needs of the child, or about the parties’ ability to pay the amount ordered.  The Court vacated the child support order and remanded to the trial court for further findings, and potential additional evidence.

Plaintiff argued next that the trial court erred in ordering her to pay attorney fees.  The Court disagreed, stating that the trial court had made findings about Defendant’s insufficient means to pay and that he was an interested party moving in good faith.  Plaintiff next argued the trial court erred in its attorney fee award because the trial court did not compare the parties’ estates.  The Court found this unpersuasive, as Plaintiff cited no case law to support this position.  Finally, Plaintiff argued that the trial court erred in awarding fees based on the motion for the writ of mandamus filed by Plaintiff.  The Court found that the trial court did not abuse its discretion in awarding fees for Defendant’s response to Plaintiff’s motion.  This assignment of error was overruled.

In Plaintiff’s third argument, she argued that the trial court erred in awarding Defendant costs, as Defendant did not plead for costs.  The Court determined that Defendant was entitled to costs, because the allegations, not prayer for relief control what a party is entitled to recover.  This assignment of error was overruled.

Plaintiff’s final argument was based on her allegations that the trial court erred in awarding Defendant a credit for overpaying child support, from the original temporary amount to the final amount awarded by the trial court.  The Court agreed, citing that there was no evidence presented regarding child support, only arguments by the parties’ respective counsel.  This portion of the order was vacated for additional findings.

Personal Jurisdiction – Marriage and Divorce of Parties That Were Married in NC but Never Lived in This State – International Lifestyle and Parties Living Abroad, Bradley v. Bradley, COA16-1303, Oct. 17, 2017

This sole issue on appeal is whether the trial court correctly concluded North Carolina had personal jurisdiction over Defendant-Appellant.  The Court of Appeals affirmed the trial court’s order denying Defendant’s Rule 12(b)(2) motion to dismiss.

Plaintiff was originally from North Carolina, and Defendant was originally from Virginia.  The parties met in Virginia in graduate school.  After Plaintiff completed graduate school, she returned to North Carolina to live with her parents while Defendant completed law school in Virginia.  Defendant moved to New York after graduation, working for a law firm that sent him to work on temporary assignments in various locations (with Plaintiff), including New York, New Jersey, London, and Australia, during the parties’ 4-year marriage.  When the parties married, Plaintiff was living in North Carolina, and Defendant was living temporarily in Australia.  The parties had two wedding ceremonies in North Carolina.  While living abroad, Defendant directed that marital property be stored in a storage unit overseen by Plaintiff’s father in Fayetteville, North Carolina.  Defendant paid the fees associated with the unit.  The parties arranged for a portion of their mail to be delivered to Plaintiff’s parents’ home in North Carolina.  Plaintiff had a baby shower in North Carolina.  When the parties separated, Plaintiff was living with Defendant’s parents in Virginia; however, she moved to her parents’ house in North Carolina following separation.  The parties never lived in a “permanent” residence during the marriage.

Plaintiff filed suit for custody, child support, spousal support and equitable distribution in North Carolina.  Defendant filed a Rule 12(b)(2) motion to dismiss Plaintiff’s financial claims.  Defendant did not challenge North Carolina’s jurisdiction over the matter of custody which is governed by the UCCJEA.

The Court of Appeals analyzes several prior NC appellate court opinions regarding personal jurisdiction, specifically whether certain non-resident defendants had sufficient “minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”  Eluhu v. Rosenhaus, 159 N.C. App. 355, 358, 583 S.E.2d 707, 710 (2003).  The Court of Appeals held Defendant’s above-referenced contacts with North Carolina were sufficient to meet the minimum contacts/due process standard for exercising personal jurisdiction over a nonresident, including the “secondary factors” of the interest of the forum state and the convenience of the parties—particularly, given the fact that the custody dispute must be litigated in North Carolina.  Affirmed.

Family Law – Standing – Motion to Dismiss – Acts Inconsistent with Parental Status, Moriggia v. Castello, COA16-444, Oct. 17, 2017

Plaintiff and Defendant were a lesbian couple but never married.  The parties were in a “committed and loving relationship” for approximately 8 years.  During their relationship, the parties decided to have a child together.  Defendant was selected to carry the child, and both parties harvested their eggs.  Ultimately, the parties were forced to use a donor egg.  Both parties were involved in the in vitro process, including signing a contract as the “Recipient Couple” acknowledging any child resulting from the process would be their legitimate child.  Plaintiff attended all prenatal appointments (other than appointments for blood pressure checks).  Both parties contributed financially to the process.  Plaintiff attended parenting classes with Defendant.  The parties lived together during the conception, birth, and first 20 months of the baby’s life—Raven.  Plaintiff’s daughter and Raven developed a bond, and the parties referred to these girls as “sisters.”  Defendant gave Plaintiff a Mother’s Day card on behalf of Raven.  Defendant assured Plaintiff post-separation that Plaintiff would continue to see Raven since she was her “mama too.”

The parties separated, and Plaintiff filed a complaint for child custody, alleging “other person” standing under N.C. Gen. Stat. § 50-13.1.  Defendant filed a Rule 12(b)(1) motion to dismiss.  The trial court granted Defendant’s motion, and Plaintiff timely appealed.

Despite the above findings of fact, and others in the opinion that support the conclusion that Defendant acted inconsistent with her constitutionally protected rights to custody, the trial court concluded Plaintiff did not have standing to seek custody.  This conclusion was erroneous, and the trial court’s order dismissing Plaintiff’s complaint must be vacated and the matter remanded.

The Court of Appeals notes the trial court’s order includes contradictory findings of fact and conclusions of law, and also fails to acknowledge the appropriate standard of proof in this case, i.e., clear, cogent, and convincing evidence.   Furthermore, the trial court erred in failing to consider circumstances preceding Raven’s birth; and, the trial court should not have relied on the following facts: that the parties were not married; that Plaintiff was not listed on Raven’s birth certificate; and that neither party pursued legal adoption.  Gay marriage was not legal in North Carolina at the time of Raven’s birth.  Vacated and remanded.