NC COA Case Summary: In the Matter of J.M.K

By Ryan Schultz

Termination of Parental Rights, No. COA18-451, Sept. 4, 2018
In the Matter of J.M.K
Buncombe County

In a termination of parental rights hearing, a court cannot base termination from a ground that has not been pled.

Facts:  Mother and Father were in a relationship from February 2014 -September 2014. During their courtship, a daughter was conceived. While still pregnant in October 2014, Mother filed and obtained a domestic violence protective order against Father. In a chapter 50 hearing, Mother was awarded sole legal and sole physical custody of the child. No child support order was ever entered, and finding was ever made that Father was the child’s biological father. Mother filed a private termination of parental rights action, to which the trial court entered an order terminating Father’s parental rights.

Read more

NC COA Case Summary: Henson v. Henson

By Ryan Schultz

Equitable Distribution, COAA818-11o, Sept. 4, 2018
Thomas Steven Henson v. Robin Black Henson
Cabarrus County

After an equitable distribution hearing, Defendant/Wife (“Wife”) was awarded the value of $51, 524.00 contained in a SEP IRA, which was the value at the date of separation. The SEP IRA had gained $30,000 – $40,000 of passive gains from the date of separation to the date of trial. The court declined to award Wife the passive gains, and only the date of separation value of the SEP IRA.

Wife appealed but did not challenge the trial court’s distribution of the SEP IRA in her appeal.

On June 6, 2017, the COA filed an opinion affirming in part and reversing and remanding in part the trial court’s order. The mandate was issued on June 26, 2017.

On June 2, 2017, four days prior to the court’s opinion, Wife’s counsel sends Husband’s trial and appellate counsel an email of a Domestic Relations Order (“QDRO”) which conveyed the entirety (rather than just the date of separation value) of the SEP IRA account to Defendant Wife.

Here is where it gets interesting: On June 15, 2017 – Counsel for Wife submitted the proposed QDRO to the trial court along with a ‘Verification of Consultation With Opposing Counsel” indicating that Husband’s counsel has not responded, and this proposed judgment/order is submitted for your consideration.” The trial court entered Wife’ s proposed QDRO on June 20, 2017. Important to note that Wife’s counsel also submitted to the trial court a “read receipt” of the email which indicated that counsel for Husband read but did not respond to Wife’s counsel’s email.

Read more

Scholarships Available For 2018 ‘Essentials Of Family Law’ CLE

Application Deadline is Oct. 22, 2018

Scholarships are available from the Family Law Section of the North Carolina Bar Association to NCBA members who are members of the Family Law Section and who wish to take the “2018 Essentials of Family Law” CLE on Nov. 1-2, 2018.

An eligible recipient is any Family Law Section Member, in good standing, who: (1) has been practicing law for three years or less; and (2) devotes at least 50 percent of his or her practice to Family Law.

Read more

Case Summary: Watson 2018 – Equitable Distribution

By Ketan P. Soni

Equitable Distribution, Unequal Distribution of Marital Property, Classification, Valuation; COA17-899; August 2018

Dwight Watson v. Gurtha Watson

Wake County

In this nearly 20 year marriage, this case was tried on Equitable Distribution. The court awarded an unequal distribution to Wife, which Husband appealed.

The parties had a home acquired one year before marriage held as joint tenants, which the court found was “separate property” of each of the parties. Despite this classification, the court distributed the entire home to Wife, and the court ordered Husband to pay the HELOC secured by the residence.

Read more

Case Summaries: August 2018 Unpublished

By Ketan P. Soni

The Unpublished Cases – August 2018

Just because they are unpublished doesn’t mean this blog won’t give them some attention, albeit brief.

CATHERINE A. BOND, Plaintiff, v. MICHAEL MANFREDO, Defendant
Mecklenburg County
This case is about equitable distribution.

Read more

NC COA Case Summary: Shell v. Shell

By Ketan P. Soni

Custody Modification, COA17-990, Aug. 21, 2018
David W. Shell & Donna Shell v. David Dwayne Shell & Nicole Green
Watauga County

A custody order was entered in 2012. Plaintiffs are the paternal grandparents.

Defendant is the father of the children, and Nicole is the mother.

In 2012, Father was granted sole legal and physical custody of the children. Mother was granted visitation. Father lived with Grandparents at the time.

After trial on the Motion to Modify, the trial court reversed custody and granted primary physical custody to Mother.

Read more

Welcome To the Family Law Blog For 2018-19

Ketan P. Soni, Communications Co-chair

This year, your Family Law Section Communications Committee Chairs intend to put some structure into blog posting to show the rest of the NCBA that the Family Law Section is where to look for model behavior. Let’s face it: We kind of “win” against most other sections, right?

What is blogging? It’s the “new” newsletter. We just had the Family Law Section Annual Meeting with the theme “Brave New World: Is the Future of Family Law Utopian, Dystopian or Somewhere in Between?” We are attempting to live those (utopian) ideals by moving toward providing more frequent information from and about the section. In any event, here’s the map:

Read more

Case Summaries

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.

Read more

Case Law Updates: Equitable Distribution; Divorce, Remarriage and Divorce

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.

Read more

Modification Of a Foreign Child-Custody Order Under the UCCJEA When Multiple States Are Involved

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.

Read more