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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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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