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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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Case Summaries

Summaries by Jeff Russell, Rebecca Poole, Jennifer Smith, Rachel Beard, Katie Fowler and Jessica Heffner

Custody Modification, Failed Reunification Therapy, Williams v. Chaney, COA16-834, July 18, 2017

Defendant–father appealed from a custody modification order which found that previous reunification therapy between the minor child and plaintiff–mother had failed, and that further reunification therapy would “re-traumatize” the minor child, but inexplicably ordered plaintiff–mother and the minor child to continue reunification therapy. Because the trial court’s findings of fact did not support its conclusions of law, the Court of Appeals vacated in part the custody modification order and remanded the case to the trial court with very specific instructions on what to include in the order on remand, including that a substantial change in circumstances had not occurred and that additional counseling was not required.

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Case Law Updates: Equitable Distribution; Divorce, Remarriage and Divorce

By Daphne Edwards and Becky Watts

Equitable Distribution, Miller v. Miller, COA 16-486, April 18, 2017

In Miller v. Miller, the Court of Appeals addressed procedural and substantive issues regarding an equitable distribution claim. First, the Court of Appeals addressed application of N.C.R. Civ. P. 60(b)(6) to determine whether the trial court properly set aside a judgment of absolute divorce to allow the Wife to pursue an equitable distribution (hereafter “ED”) claim. The Court held the trial court properly entered its order vacating the divorce judgment under Rule 60(b)(6) to allow the Wife to pursue an ED claim. Specifically, Wife had filed a complaint for divorce from bed and board and ED at a time when the parties were not living separate and apart. The trial court granted her divorce from bed and board claim and the parties began living separate and apart on March 21, 2012. A consent order was entered on April 16, 2012, in which the court republished the Wife’s ED claim. Motions were entered regarding ED and the parties mediated the claim unsuccessfully in December 2012.

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Case Summaries: Custody Modification, Equitable Distribution, Change of Circumstances

NCBA Family Law Section

By Jeff RussellRebecca Poole and Jennifer Smith

Custody Modification; No Evidence Presented at Hearing

Farmer v. Farmer, No. COA16-760, (June 6, 2017)

Defendant–mother appealed from a custody modification order that set aside a prior custody modification order. Because the trial court took no evidence at the hearing and failed to make the proper analysis before modifying the prior custody order, the Court of Appeals vacated the custody modification order and remanded the case to the trial court.

There are two issues to note in this appeal: First, the Court of Appeals does not comment upon or engage in any analysis of whether the orders in the case are temporary or permanent in nature. The Court seems to assume that the orders are permanent, because it cites the two-step modification analysis for a permanent order (substantial change in circumstances/best interests). Second Judge Dillon dissents in part from the Court’s opinion concerning which of the parties’ prior custody orders should be in effect pending further hearings on the matter.

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Case Summaries

By Rachel BeardA.T. Debnam, Daphne Edwards, Rebecca Poole, Jeff Russell and Jennifer Smith

Equitable Distribution; Appeal After Remand; Value Of Marital Residence; Law Of the Case

Lund v. Lund (Lund II), No. COA16-813 (March 21, 2017)

(related Court of Appeals case: Lund v. Lund, __ N.C. App. __, 779 S.E.2d 175 (2015) (Lund I)

Plaintiff-wife appeals from the trial court’s revised equitable distribution order entered after the Court of Appeals remanded for further findings of fact. The Court of Appeals affirmed the trial court’s decision.

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