Posts

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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Sunday Best: Catch Up On the Week’s Top NCBarBlog Posts

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Here’s what NCBarBlog readers found most interesting on our pages this week:

Court of Appeals Allows Section 75-1.1 Claim in Context of Residential Real Estate Transaction

An Untapped Source of Savings for State and Local Government Owners of Property

A 12(b)(6) Motion Asserted As Part Of An Answer Will Not Suffice, At Least Not In The NC Business Court

Launching the Appellate Practice Section Blog with Exciting News!

Say Hello To the Small Firm & Technology Section

A Win For Arbitration in 2018

Court of Appeals Allows Section 75-1.1 Claim in Context of Residential Real Estate Transaction

By Jeremy Falcone

Courts have generally excluded residential real estate transactions from North Carolina’s Unfair and Deceptive Trade Practice statute, section 75-1.1. A recent decision from the North Carolina Court of Appeals, called Capps v. McSwain, addressed this exemption. This post explores this decision—including the reasons behind the exemption.

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A Win For Arbitration In 2018

By Tara Muller

This article appeared originally in The Peacemaker, the newsletter of the NCBA’s Dispute Resolution Section.

In the world of public opinion, alternative dispute resolution still struggles to compete with its crusty cousin – the traditional, costly, and lengthy trial process. For years, parties interested in enforcing arbitration provisions in lieu of trial have wrestled with the obstacle of unclear North Carolina appellate precedent as to whether courts would compel mandatory arbitration when the parties engaged in some initial litigation before moving to enforce the arbitration provision.  Fortunately for the up-and-coming arbitration protagonist in this tale, the North Carolina Court of Appeals kicked off 2018 with a bang, clearing up a history of self-described “divergent case law” and handing a win to parties interested in enforcing arbitration provisions.

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None Of Your Business In Our Jurisdiction

By Madeleine Pfefferle

On Nov. 7, 2017, the North Carolina Court of Appeals delivered a split opinion in Atlantic Coast Properties, Inc. v. Saunders, holding that a corporation’s failure to plead its legal existence and capacity to sue lacked standing to maintain a legal action. 807 S.E.2d 182 (N.C. Ct. App. 2017). The case was before the court on appeal by petitioner Atlantic Coast Properties, Inc. (“ACP”) after Judge Milton F. Fitch, Jr. granted Respondents’ motion for summary judgment in Currituck County Superior Court.

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NC COA Clears Up Questions Of ‘Occurrence’ In Property Damage Decision

By Bill Lipscomb

On Aug. 1, 2017 the North Carolina Court of Appeals issued a decision which provides two helpful takeaways for the insurance law practitioner. In Plum Properties, L.L.C. v. N.C. Farm Bureau Mut. Ins. Co., 2017 N.C. App. LEXIS 607, Plum Properties, L.L.C. (Plum) filed a tort action against two minors and their mothers, alleging that the minors “intentionally, willfully and maliciously” vandalized four houses owned or managed by Plum, causing $58,000 in damage and that the mothers were also liable for the damages based on negligent supervision of their minor children. Both mothers had homeowners insurance policies with Farm Bureau which provided personal liability coverage for “property damage caused by an occurrence” (occurrence defined as an accident), but contained the standard “expected or intended injury” exclusion, which excludes coverage for “property damage which is intended by or which may reasonably be expected to result from the intentional acts or omissions or criminal acts or omissions of one or more insured persons.” Plum filed a declaratory judgment action against Farm Bureau seeking a declaration that the damages alleged in the underlying tort action are covered by the mothers’ homeowners policies. The Court of Appeals affirmed summary judgment for Farm Bureau.

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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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Recent Court Decisions

Labor & Employment Law Section

By Joseph S. Murray IV

The U.S. Court of Appeals for the 4th Circuit and the N.C. Court of Appeals issued the following employment law opinions in the past several weeks:

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Key Changes to NC Rules of Appellate Procedure

By Laura Graham

On Jan. 1, 2017, a comprehensive revision of the North Carolina Rules of Appellate Procedure took effect. The revised Rules apply to all cases appealed on or after Jan. 1. The revised Rules include some brand new provisions, and they also incorporate several changes that had been in effect for some time pursuant to stand-alone orders of the North Carolina Supreme Court.[1]  The revised Rules are available here: http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf.

No doubt, attorneys who regularly handle appeals have already scoured the revised Rules for brand new changes. But for the benefit of the rest of us, I’ve chosen to highlight five provisions in the revised Rules; the first three are new changes, and the other two are codifications of prior stand-alone changes.

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