NC COA: Termination of Parental Rights, In re T.H. and M.H.

By Jessica B. Heffner

Termination of Parental Rights, NC COA18-926, In re T.H. & M.H., June 18, 2019, Rowan County 

Respondents appealed an order terminating their parental rights due to issues of ongoing substance abuse, mental health, and inadequate care and supervision of their children.  The Court of Appeals affirmed, finding no abuse of discretion as to the termination of either parent’s rights.

In February 2016, DSS filed a petition alleging Respondent’s children were neglected and dependent.  A week later, Respondents entered into an Out of Home Family Services Agreement requiring them to take measures to secure proper housing, employment, mental heath treatment, substance abuse treatment, and to participate in a parenting course and resolve all pending legal/criminal issues.  In March 2016, the court entered a consent order adjudicated the children neglected and dependent; the order required Respondents to comply with their case plan.  Over the next several months, however, the Respondents were in and out of jail.  In June 2017, the trial court entered a permanency planning order which changed the primary permanent plan for the children to adoption with reunification as the secondary plan, finding that Respondents had not made “any progress” on their case plans.  The next month, in July 2017, DSS filed a petition to terminate Respondents’ parental rights, which was granted.  Respondents appealed.

Read more

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

By Jessica B. Heffner

Termination of Parental Rights, COA18-1226, In re D.A.Y., June 18, 2019, Stanly County

Petitioner-Father, a resident of Stanly County, North Carolina, filed a termination of parental rights action in Stanly County against Respondent-Mother, a resident of Ventura County, California.  Petitioner alleged the parties’ child lived with him in Stanly County, pursuant to a California custody order, such that North Carolina is the “home state” of the child.  Petition further alleged that said California custody order terminated California’s ongoing jurisdiction by its own terms.  Petitioner alleged that though Respondent is currently a California resident (as she was when the California custody order was entered), she temporarily relocated to Nevada which also terminated California’s jurisdiction.  The trial court in Stanly County entered an order which terminated Respondent’s parental rights.  Respondent appealed arguing the North Carolina court did not have subject matter jurisdiction under the UCCJEA to enter its order.  The Court of Appeals agreed.

Read more

NC COA: Sfreddo v. Hicks

By Tony Kehoe

Requirements for Notary Certificate and Acknowledgment; Timeliness of Appeal of Summary Judgment Order from Converted Motion to Dismiss Hearing, COA18-1010, Sfreddo v. Hicks, June 18, 2019, Wake County

Wife filed an action against Husband for breach of contract (a separation agreement).   Husband moved to dismiss alleging the separation agreement was void because it was not properly acknowledged under N.C. Gen. Stat. § 52-10.1. Husband specifically alleged the wording of the notary certificate did not have the proper language regarding the notary’s knowledge of the identity of the principal nor did it indicate that the notary acknowledged the signature was that of the principal.

Read more

NC COA: Entry of Default & Specific Performance, Jones v. Jones

By Kristin Hampson

Entry of Default, Specific Performance, COA18-478, Jones v. Jones, Feb. 5, 2019, Lee County

This matter was originally appealed in action COA14-507.  After certifying this Court’s decision to the district court, Plaintiff filed a motion for entry of default, and a default judgment was entered on the same day.  Defendant filed a motion to set aside entry of default more than one month later.  The trial court ultimately denied Defendant’s motion to set aside entry of default.  Defendant appeals from the trial court’s order denying his motion to set aside entry of default and ordering specific performance.  Because the trial court’s findings were supported by the record, and the trial court did not abuse its discretion, the Court of Appeals affirmed the entry of default and order for specific performance.

Read more

NC COA: Equitable Distribution, Nordman v. Nordman

By Evonne Hopkins

Equitable Distribution, COA18-405, Feb. 19, 2019, Nordman v. Nordman, Iredell County

Equitable distribution orders and contempt orders are both immediately appealable.

Equitable distribution order remanded for further findings of fact on all factors within Section 50-20(c) supported by the evidence at trial.  The trial court must make findings of fact concerning each distributional factor for which evidence is presented and determine in its discretion whether an unequal distribution is equitable.

Read more

NC COA: Child Custody/UCCJEA, Walz v. Walz

By Evonne Hopkins

Child custody, subject matter jurisdiction/UCCJEA, COA18-240, Feb. 19, 2019, Walz v. Walz, Carteret County

Holding: The trial court erred in finding that North Carolina was the “home state” of the two minor children and in exercising emergency jurisdiction.  The trial court lacked subject matter jurisdiction to make the initial child-custody determination.

In May 2015, Husband and Wife enter into a Separation Agreement (“SAPS”), which gave Wife primary custody of the minor children.  The SAPS included a provision that NC would have jurisdiction over matters contained in the agreement.  In June/July 2015, Wife moved to Arizona with the minor children.

Read more

The Value of Membership: Why Should You Join the Family Law Section of the NCBA?

By Lisa LeFante

I have been a member of the NCBA Family Law Section for nearly 22 years.  If you asked me why I joined back in 1997, I probably would have said, “because that’s what you’re supposed to do, and Marc Sokol is paying for it.”  If you ask me today, my answer is still the same (well, partially, Marc is no longer paying for it, although I wouldn’t mind if he did) because that’s what you are supposed to do.  The real question is why is joining the Section something we are “supposed to do?”

I am a member of a Section that is some 1,000+ lawyers strong, most of whom dedicate their careers to family law.  From this Section, I learn not only about developments in family law, but also about camaraderie, professionalism, and public service.  I learn how to be a better lawyer, and perhaps in turn, a better person.

Read more

NC COA: Morgan v. Defeo

By Jeff Marshall

Equitable Distribution, COA 18-322, Feb. 5, 2019, Morgan v. Defeo, Iredell County

Plaintiff requested an ex parte Domestic Violence Protective Order against Defendant alleging the “defendant attempted to cause or has caused bodily injury and that the defendant continues to lie on social media about her.”  The trial court granted Plaintiff’s ex parte DVPO and ordered Defendant to refrain from all social media about Plaintiff and her family.  Plaintiff wrote in her original complaint that Defendant abused her and damaged her home in July of 2016, but her complaint was not filed until approximately one year later.  In her complaint, she attached screen shots of Defendant’s Facebook posts, Defendant’s text messages, and damage to the home from 2016.

Read more

NC COA: Bezzek v. Bezzek

By Jeff Marshall

Domestic Violence, COA18-761, Feb. 19, 2019, Bezzek v. Bezzek, Orange County

Husband filed a complaint for absolute divorce and equitable distribution.  Wife admitted the allegations for absolute divorce but filed a motion to dismiss the claim for equitable distribution because the parties had previously executed a separation agreement addressing equitable distribution.  Husband responded with a motion to rescind the separation agreement and a motion for the establishment of child support.

After a trial, the lower court found the separation agreement to be void.  Wife appealed, claiming the trial court’s order was a “final judgment.”  However, because the equitable distribution claim was still pending, the trial court’s order was not final and the appeal is interlocutory.  In an interlocutory appeal, the appellant has the burden of providing sufficient facts and arguments that support appellate review on the ground that the challenged order affects a substantial right.  Here, Wife failed to make any argument regarding any deprivation of a substantial right and, therefore, failed to meet her burden.  Accordingly, the Court of Appeals dismissed Wife’s appeal.

Read more

NC COA: In the Matter of E.M.

Juvenile Delinquency, COA 18-685, Jan. 15, 2019, In the Matter of E.M., Mecklenburg County

Holding: The trial court must order a mental evaluation of a minor, and thus has no discretion, if evidence is presented that the juvenile is mentally ill or developmentally disabled during a juvenile hearing.  Read more