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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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.

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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.

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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.

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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:

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