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.

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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.

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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.

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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

NC COA: TPR Sufficiency Of Pleadings, In the Matter Of I.R.L.

Parental rights, COA18-427, Jan. 15, 2019, In the Matter of I.R.L, Robeson County

After a termination of parental rights hearing, Respondent-Father (“Father”) appealed the termination of his parental rights. The COA reversed and remanded the issue to the trial court.

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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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