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.
By Daphne Edwards and Becky Watts
Equitable Distribution, Miller v. Miller, COA 16-486, April 18, 2017
In Miller v. Miller, the Court of Appeals addressed procedural and substantive issues regarding an equitable distribution claim. First, the Court of Appeals addressed application of N.C.R. Civ. P. 60(b)(6) to determine whether the trial court properly set aside a judgment of absolute divorce to allow the Wife to pursue an equitable distribution (hereafter “ED”) claim. The Court held the trial court properly entered its order vacating the divorce judgment under Rule 60(b)(6) to allow the Wife to pursue an ED claim. Specifically, Wife had filed a complaint for divorce from bed and board and ED at a time when the parties were not living separate and apart. The trial court granted her divorce from bed and board claim and the parties began living separate and apart on March 21, 2012. A consent order was entered on April 16, 2012, in which the court republished the Wife’s ED claim. Motions were entered regarding ED and the parties mediated the claim unsuccessfully in December 2012.
By Ashley Lorance
What if a joint custody order is entered in a state where the parents and child once lived, but then the child and parents all move — with the child living in-between mother’s home in State A and father’s home in State B? Which state would have jurisdiction to modify the foreign custody order? Would jurisdiction depend on which state had registered the order first?
The Uniform Child-Custody Jurisdiction and Enforcement Act sets out when a North Carolina court can modify a foreign child custody or child support order. See G.S. § 50A-203. Section 50A-203 specifies that this can only happen if a court of this state would have jurisdiction to make an initial child-custody determination, and a court of the other state determines it no longer has continuing, exclusive jurisdiction under G.S. 50A-202 (the child and no parent lives in that state or have a significant connection to that state) or that another state would be a more convenient forum under G.S. 50A-207, or a North Carolina court or a court of the other state determines that the child, the child’s parents and no person acting as a parent currently reside in the other state.
Family Law Section
By Rachel Beard, A.T. Debnam, Daphne Edwards, Rebecca Poole, Jeff Russell and Jennifer Smith
Equitable Distribution; Appeal After Remand; Value Of Marital Residence; Law Of the Case
Lund v. Lund (Lund II), No. COA16-813 (March 21, 2017)
(related Court of Appeals case: Lund v. Lund, __ N.C. App. __, 779 S.E.2d 175 (2015) (Lund I)
Plaintiff-wife appeals from the trial court’s revised equitable distribution order entered after the Court of Appeals remanded for further findings of fact. The Court of Appeals affirmed the trial court’s decision.
By Amy Wallas Fox
For many couples, the only way to build their family is through assisted reproductive technologies (ART) including in vitro fertilization (IVF). With IVF, eggs are retrieved from a woman’s body and fertilized with sperm in the laboratory, creating embryos that are grown for several days outside the body. At that point, many embryos are cryopreserved prior to transfer to a woman’s uterus. What becomes of such embryos if they remain in storage at the time of progenitors’ divorce?
Reproductive clinics usually require couples to sign documents detailing disposition of their embryos in the event of their deaths and in the event of non-payment of storage fees. Clinics may also require agreement between the couple detailing what should happen if the couple divorces or one spouse is incapacitated while embryos are frozen. Options include procreation by one or both spouses, donation to medical research, or thaw and degeneration of the embryos. In California, New Jersey and Massachusetts it is required by statute that the fertility center mandate their patients to agree on disposition in a variety of circumstances, including divorce (See for example, California: Health and Safety Code 125315).
By Nick Brown
Experienced family lawyers are adept at helping their clients secure alimony, child support, property settlements and other financial relief. But what happens to these claims when the party obliged to make payments files bankruptcy?
This article takes a look at how domestic support obligations are treated in a bankruptcy case. The article also highlights some common issues for dispute and ways to protect your client.
What Is a Domestic Support Obligation?
The “domestic support obligation” is a defined term in bankruptcy law, referring to a debt “in the nature of alimony, maintenance or support” that is owed to a current or former spouse or child. In order to qualify, the obligation must be established under a formal agreement, court order or state law.
Common examples of domestic support obligations are alimony and child support. On the other hand, property divisions under equitable distribution orders typically do not qualify. In some instances, the nature of the claim is uncertain which could lead to litigation.
Family Law Section
By Rebecca Watts
I am excited to announce the retirement of our newsletter. Why is that exciting news? Because with the retirement of the newsletter comes the birth of our blog! Publication of a newsletter required months of work soliciting and collecting articles and case law reviews. Because it could take months to put a new edition together, information in the newsletter was rarely “breaking news,” but the blog format allows us to more easily send interesting and timely content to section members. As the blog gets going, you can expect to see articles written by section members, case law updates, information about section activities and events, and links to articles that may be of interest to section members. Now that I have everyone’s attention, and speaking of section activities, let’s talk for a minute about how you can volunteer to serve on one of our section’s committees. (OK, not the most elegant segue, but hopefully you will keep reading.)
Family Law Section
By Rebecca Poole, Jennifer 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.
Family Law Section
By Kelly Fairman
What exactly is income? Most people think about a Friday paycheck, or profit from a business once the expenses are paid. The North Carolina Child Support Guidelines cast a much wider net. Gross income is defined by a long and non-exclusive list of financial benefits. Specifically included in the definition of gross income is “maintenance received from persons other than the parties to the instant action.”
What is maintenance and how is it calculated? There are many different perspectives in the family law bar, and probably the judiciary, on this issue. One common misperception is that including the value of living expenses reduced by the contributions of a third party is “imputing” income. There are other arguments as to whether the contributions count as gifts, but this may have limited relevance, as both “maintenance” and “gifts” are included in gross income. Many practitioners read inclusion of these benefits as discretionary.