Case Law Update: ED and Classification of Life Insurance Proceeds

By Rebecca K. Watts

Richter v. Richter, decided COA June 2, 2020 (equitable distribution, classification of life insurance proceeds)

During the time Husband and Wife were married to each other, Husband’s ex-wife died. Husband was beneficiary of a life insurance policy that ex-wife had maintained. During the marriage of Husband and Wife, some of the life insurance proceeds were used to make purchases. In the equitable distribution proceeding, Wife claimed the life insurance proceeds and the items purchased with it were marital property of Husband and Wife. Husband claimed it was all separate property. The trial court classified the proceeds and the items purchased with the proceeds as Husband’s separate property. Wife appealed.

Read more

Case Law Update: DVPO and Personal Jurisdiction

By Rebecca K. Watts 

Mucha v. Wagner, decided COA June 2, 2020 (DVPO, personal jurisdiction)

Plaintiff and Defendant had been in a romantic relationship until Plaintiff ended it and asked Defendant not to contact her again. At the time their relationship ended, Plaintiff was a college student in South Carolina and Defendant lived in Connecticut.  At some point after the breakup, Plaintiff moved to North Carolina. On her first day living in North Carolina, Defendant called her 28 times. Plaintiff filed a complaint for a domestic violence protective order. Defendant appeared solely to contest personal jurisdiction. The trial court denied Defendant’s motion to dismiss for lack of personal jurisdiction and entered a DVPO against Defendant. Defendant appealed.

Read more

Case Law Update: Supreme Court on Custody and Denial of Visitation

By Rebecca K. Watts

Routten v. Routten, N.C. Supreme Court, decided June 5, 2020 (custody, denial of visitation)

After finding that visitation with Mother would not be in the children’s best interest, the trial court awarded sole physical custody to Father, denied visitation to Mother, and allowed Father to “permit custodial time between the children and [Mother] within his sole discretion.” Mother appealed.

The Court of Appeals held that before applying a best interest test to deny custodial and visitation rights to a parent, the trial court must (1) make a written finding of fact that that parent is “unfit or has engaged in conduct inconsistent with is protected status as parent” and (2) “make those findings based upon clear, cogent, and convincing evidence.” In reaching this determination, the Court of Appeals relied upon the holding in Moore v. Moore, 160 N.C. App. 569 (2003), in which the Court of Appeals held that “in a custody dispute between a child’s natural or adoptive parents, absent a finding that the parents are (i) unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care and control of their children must prevail.” The Court in Moore based its decision upon the holding in Petersen v. Rogers, 337 N.C. 397 (1994). In her dissent, Judge Inman reasoned that the statute clearly allowed a denial of visitation based upon a best interest determination alone and that Moore had been wrongfully decided and disavowed, and was not controlling.

Read more

Spotlight: Incoming Chair Mitchell Kelling

By Ryan Schultz

On July 1, 2020, Mitchell Kelling will continue her commitment to the North Carolina Bar Association as the incoming chair of the Family Law Section. Mitchell is currently the principal and practice group leader of the Family Law Practice Group (South) of Offit/Kurman. She boasts a remarkably accomplished resume beginning with her involvement in the North Carolina Bar Association’s Family Law Section in 2002. Since then, she has volunteered on several committees and chaired both the social and the CLE committee. She has served on the executive committee for a number of years, and last year, she was Vice Chair.

Read more

From The Family Law Chair – Lee Scholarship

By Afi Johnson-Parris 

When I began practicing family law as a solo practitioner, short on cash and shorter on clients, I polled several colleagues for advice on which reference materials were essential. I had no budget for extras. Nearly everyone I spoke to said, “You’ve got to have Lee’s Family Law.” For many years, Lee’s Family Law was the seminal text on family law in North Carolina. Many a time in court or conversation, lawyers or judges would use the phrase, “well, Lee’s says . . .” when expounding on some area of the law. I knew the current author of the 5th edition was Dean Emerita Suzanne Reynolds, so I never gave much thought to the actual man behind the text until I received a call from Section member Carolyn Ingram.

Read more

Family Financial Mediation Program Rule Amendments

By Ketan Soni

The Supreme Court has approved Family Financial Mediation program rule amendments which require that next year, all District Court Family Financial Settlement mediators, whether selected by the parties or appointed by the court, must be trained, certified mediators.

 

 

 

If you have:

  1. been mediating family cases,
  2. have not completed the 40-hour training for certification but
  3. want to continue mediating,

you will need to become certified in the next year.

Read more

Rules for Settlement Procedures in District Court Family Financial Cases (FFS Rules)

By Tara Kozlowski 

From the Executive Director of the Dispute Resolution Commission

The Dispute Resolution Commission is very excited to announce that proposed rule changes submitted to the Supreme Court of North Carolina were adopted on Wednesday, June 3, 2020. Amendments to five rule sets, as amended, will go into effect on June 10, 2020. The amended rules are now live on the Supreme Court’s Court Rules web page:  (https://www.nccourts.gov/courts/supreme-court/court-rules).

Read more

UCCJEA, International Custody Order

By Rebecca K. Watts 

Hamdan v. Freitekh, decided May 19, 2020

During the marriage, Mother and the children lived in Israel, while Father lived in Palestine.  Mother and the children moved to North Carolina without advance notice to Father—Mother alleged that the move was due to domestic violence issues and to her concern that Father was a member of a radical Islamic group. When Father learned of Mother’s intention to move to the United States, he instituted an action with the Shar’ia Court of Jerusalem in an effort to prevent Mother and the children from moving to the United States (by the time he filed his action, Mother and the children had already moved). The Shar’ia Court issued a “provisional order” providing that the children would live with Mother in Israel during the week and with Father in Palestine on the weekends. The order was served on Mother at her address in Jerusalem (after she had moved to North Carolina). When Mother did not appear in Court after that, the Shar’ia Court entered a final custody order by default.

Read more

What in the World Happens Next? How Family Law Attorneys Should Plan Now for Alimony and Child Support Case Modifications

By Tonya Graser Smith

The economic side effects of the coronavirus pandemic on divorced or soon-to-be-separated clients can’t be ignored. As family law attorneys, we know the flood is coming.

We see the tidal wave. We see the stress of family and work, the emotional imbalance, the inability to make decisions, the very quick accusations that one side or the other is acting crazy. We see our clients crumbling into tears with non-case related issues like trying to get their Instacart or Shipt groceries delivered on time and making sure their kids get on their Zoom classroom meetings.

Read more

Chief Justice Beasley’s COVID-19 Task Force and the Practice of Family Law

,

By Wade Harrison

These are tough times. We have been forced to deal with the uncertainty and disruption surrounding this public health threat. Some of us have lost a loved one without the opportunity to communicate with them or publicly celebrate their lives. We deal with our clients’ stress and the financial stress this has caused. The Chief Justice issued emergency orders necessary to protect our health and safety and that of our clients and court personnel. Our practices have slowed to a crawl, and we are nostalgic about interminable calendar calls because of a bat bite in China. What is next?

Chief Justice Beasley appointed a Task Force to recommend how and when she should ramp up operations in the North Carolina Judicial Branch during this pandemic. She appointed me to represent the family lawyers. Prior to accepting this job, I secured a pledge for assistance from the leadership of the Family Law Section and the North Carolina Chapter of the AAML. I need your help to represent you effectively. Here is how I am representing you and how the Task Force operates.

Read more