NC COA: Modification Of Custody, Walsh v. Jones

By Ketan Soni

Modification Of Custody, COA18-496, Jan. 15, 2019, Walsh v. Jones

The Father’s record from 2004 and 2005 included acts of domestic violence, abuse of illegal drugs, anger management issues, and allegations of inappropriate touching of the minor child.

In 2010, the court found Father was not a fit and proper person to have custody or visitation of any nature.

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Three-Section Networking Happy Hour In Fayetteville Feb. 28

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The NCBA Family Law, Estate Planning, and Military & Veterans Law Sections invite you to a joint networking happy hour in Fayetteville.

Date and Time: 5 – 7 p.m., Thursday, Feb. 28

Location: The Mash House, 4150 Sycamore Dairy Road, Fayetteville

RSVP online by Tuesday, Feb. 26

Free for all Section Members. Invite someone who could be a member.

 

NC COA Case Summary: Domestic Violence Protective Order, Martin v. Martin

By Becky Watts

Domestic Violence Protective Order, COA18-465, Dec. 18, 2018, Martin v. Martin, Wake County

It is a violation of defendant’s due process rights to allow plaintiff to testify about alleged acts of domestic violence that were not pleaded in the complaint.

Plaintiff-Wife filed a complaint for a domestic violence protective order against Defendant-Husband.  In her complaint, Wife alleged that acts of domestic violence had occurred on several different days.  At the hearing, Wife testified about alleged acts of domestic violence that had not been pleaded in her complaint.  Husband objected to the admission of evidence regarding incidents that had not been alleged in the complaint, but the trial court overruled the objection and allowed the evidence to be presented.

Husband appealed, arguing that his due process rights were violated when the trial court allowed Wife to present evidence of alleged acts that she had not included in her complaint.  Wife responded by arguing that Chapter 50B does not require allegations of specific acts of domestic violence, that Rule 9 of the Rules of Civil Procedure does not include averments of domestic violence as a matter that has to be pleaded with specificity, and that Rule 8 of the Rules of Civil Procedure requires only a short and plain statement of the claim.

The Court of Appeals noted that our appellate courts have not considered the issue of whether a plaintiff in a domestic violence case may present evidence at trial of alleged acts of domestic violence that had not been pleaded in the complaint.  After reviewing the approach taken by other jurisdictions with similar domestic violence statutes, the Court held that “admission of testimony of domestic violence not otherwise pleaded in a complaint and motion for a domestic violence protective order violates a defendant’s right to due process” because when allegations are not in the complaint, a defendant is not on notice of, cannot anticipate, and cannot prepare a defense against those allegations.

Alimony Video Podcast Series: Gray Divorce, Cohabitation and New Tax Laws

Alimony is an ever-changing aspect of divorce law. Watch a new, three-part video podcast series with NCBA Family Law Section Communications Co-chairs Ryan Schultz, Jessica Hefner, and Ketan Soni as they discuss three evolving aspects of alimony.

Click here to view video conversations about alimony in the context of gray divorce, how cohabitation works with terminating alimony, and how tax laws taking effect in 2019 will impact how you think about alimony, deductibility, ability to pay and structuring other resolutions.

Domestic Violence Issues Committee Considering Revisions To GS 50B-3(b)

By Kathleen Lockwood and Melissa Averett

The Domestic Violence Issues Committee of the Family Law Section is currently considering revisions to GS 50B-3(b), inspired by a 2014 Court of Appeals decision. In Rudder v Rudder, 234 N.C. App. 173 (2014), the Court of Appeals expressed some doubt whether the time limitations of G.S. 50B-3(b) apply to ex-parte orders entered pursuant to G.S. 50B-2. In Rudder, the court granted Plaintiff an ex parte order, which was extended for over 18 months and expired without entry of a DVPO. Two days after expiration of the ex parte order, the parties appeared in court on Defendant’s motion to return firearms, at which point the court granted Plaintiff a one-year DVPO. On appeal, the Court held that “upon expiration of the ex parte order after more than a year, the trial court no longer had jurisdiction under the original complaint to enter an order further extending the DVPO.”

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NC COA Case Summary: Termination of Parental Rights, In re D.A.

By Jessica B. Heffner

Termination of Parental Rights, COA18-290, Oct. 16, 2018, In re D.A., Forsyth County

Respondent-Mother and Respondent-Father both appealed the trial court’s order terminating their parental rights.  Both parties’ attorneys filed “no-merit” briefs with the Court of Appeals pursuant to Rule 3.1(d).  Respondent-Mother’s attorney complied with all requirements of Rule 3.1(d), including sending Respondent-Mother complete copies of the record on appeal, the trial transcript, and informing Respondent-Mother of her right to file a pro se brief.  Since Respondent-Mother failed to file a pro se brief, her appeal is dismissed.

In his “no-merit” brief, Respondent-Father’s attorney acknowledged his inability to locate or otherwise communicate with Respondent-Father.  Respondent-Father refused to testify to his address at trial, and his attorney was unable to locate him post-trial.  As a result, Respondent-Father’s attorney was unable to fully comply with Rule 3.1(d), including sending Respondent-Father the record on appeal, trial transcript, or informing him of his right to file a pro se brief.  These facts present an issue of first impression for the Court: interpreting the mandatory language of Rule 3.1(d) when a client refuses to inform his attorney of his whereabouts, hindering his attorney’s ability to comply with Rule 3.1(d).  Here, Respondent-Father’s attorney was “constructively discharged”; however, given the constitutional rights at issue in a TPR case, these situations must be analyzed on a case-by-case basis.  Due to the “exhaustive efforts” made by this attorney, it is appropriate to invoke Rule 2 to suspend the mandatory service requirement in Rule 3.1(d).  And, since Respondent-Father did not file a pro se brief, his appeal is dismissed.

NC COA Case Summary: Equitable Distribution, Frady v. Frady

By Evonne Hopkins

Equitable Distribution, COA18-141, Oct. 16, 2018, Frady v. Frady, Transylvania County

Equitable distribution order entered October 20, 2017. Husband appeals.

Husband presented 13 issues on appeal which the court narrowed down to essentially five issues. The Court concluded that issues 1-4 were abandoned by failure of Husband to provide any meaningful support, reason or argument.

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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.

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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.

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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.

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