1 / 30

Domestic Law Case and Legislative Update

Domestic Law Case and Legislative Update. Cheryl Howell Institute of Government October 2003. Custody. Rosero v. Blake – NC Supreme Court (June 2003) Between mother and father of illegitimate child, no presumptions apply Best interest test determines custody

zubaida
Download Presentation

Domestic Law Case and Legislative Update

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Domestic Law Case and Legislative Update Cheryl Howell Institute of Government October 2003

  2. Custody • Rosero v. Blake – NC Supreme Court (June 2003) • Between mother and father of illegitimate child, no presumptions apply • Best interest test determines custody • At least where father has acknowledged paternity and “acted consistent with his right to care for and control child”

  3. Custody • David v. Ferguson (COA Aug. 2003) • Trial court used best interest to give father custody • COA reversed, citing Rosero (COA) • Supreme Court remanded, citing Rosero (NC) • COA upheld best interest without evidence of father’s acknowledgment

  4. CustodyBest Interest Test • Rosero (NC June 2003) • Trial court has discretion to interpret evidence; upheld if findings – based upon evidence – support conclusion of best interest • McRoy v. Hodges (COA Sept. 2003) • Finding that father had no present relationship with child but would establish one under terms of order held insufficient to support conclusion of best interest

  5. CustodyTemporary Orders • To be temporary, order must state “clear and specific reconvening time, and the time between hearings must be reasonably brief” • Brewer, 139 N.C. App. 222 (2000)(1 year not reasonably brief) • Cox, 133 N.C. App. 221 (1999)(5 months OK)

  6. CustodyTemporary orders • McRoy v. Hodges (COA Sept. 2003) • Award of “temporary custody to plaintiff for 4 months, then permanent custody to defendant” held to be a final order • Lamond v. Mahoney (COA Aug. 2003) • “Order regarding permanent custody, visitation and support” was temporary where it ordered evaluations and review in 7 months

  7. CustodyAppeals • Evans v. Evans (COA June 2003) • Custody order is interlocutory if alimony and ED remain pending • No substantial right affected unless child’s “health or safety is in jeopardy” • Compare McConnell, 151 NC App 622 (2002) • Civil Procedure Rule 54(b): judge can certify “no just reason to delay the appeal”

  8. Child SupportModification • Orange County ex. Rel. Harris v. Keys (COA June 2003) • VSA included order to pay $1,272 ($20 per month) reimbursement of past paid public assistance • Trial court forgave repayment as part of modification of VSA after finding debt accrued before obligor knew about birth of child

  9. Child SupportModification • Orange County ex rel Harris v. Keyes • COA reversed – held modification of “vested arrears” must comply with GS 50-13.10 • GS 50-13.10: payments become vested when due; modification allowed only if requested before payments due • After vesting, obligor must show “compelling reason” why change not requested before payments due

  10. Child SupportImputing Income • Cannot impute income without finding “bad faith”: finding of intentional reduction is not sufficient • Cook v. Cook (COA Aug. 2003). Obligor left job voluntarily and restructured investments: insufficient to impute • Pataky v. Pataky (COA Sept 2003): left job to return to school – COA said record “wholly lacks evidence of bad faith”

  11. Child SupportSeparation Agreement • Pataky (COA Sept. 2003) • Amount of support in unincorporated agreement is presumed a “just and reasonable” amount of support • If presumption not rebutted, application of guidelines is “inappropriate” and support is set in amount of agreement • Rebut presumption with evidence of needs of children at time of hearing and factors set out in GS 50-13.4(c)

  12. Child Support Legislation • Collection of arrears • S.L. 2003-288, effective July 4, 2003 • Amends GS 50-13.4(c): If arrearage exists when support obligation terminates, payments continue in same total amount until all arrearages and fees are satisfied

  13. Equitable DistributionRice v Rice (COA Aug. 2003) • House purchased with down payment and mortgage before marriage • Mortgage paid during marriage with marital and separate funds • Improvements made during marriage with marital and separate funds • Passive appreciation added value during marriage • How classify house?

  14. Equitable Distribution • Mixed assets classified using source of funds doctrine • Each estate is entitled to an interest in the property in the ratio its contribution bears to the total investment in the property. • Wade, 72 NC App 372 (1985) • Mishler, 90 NC APP 72 (1988)

  15. Equitable Distribution • To classify a mixed asset: • Identify total marital contribution • Identify total separate contribution • Divide passive appreciation between the 2 estates based upon the relative contribution of each

  16. Equitable Distribution • Rice v. Rice (COA Aug 2003) • In determining total marital contribution – for purpose of identifying marital component of passive appreciation – must include marital improvements as well as marital mortgage payments

  17. Equitable DistributionDistributive Awards 50-20(e) • In-kind distributions presumed equitable • Presumption rebutted by greater weight of evidence, or of evidence of property “not susceptible to in-kind distribution” • If rebutted, distributive award allowed to “facilitate, effectuate, or supplement distribution” • Can be paid over time/secured with lien

  18. Distributive Awards • Embler v. Embler (COA July 2003) • Defendant ordered to pay $24,876 within 60 days • COA held trial court erred by not identifying how defendant would satisfy award where defendant had no “obvious liquid assets.” • See also Shaw v. Shaw, 117 NC App 552 (1995) • Ability to pay is not the issue

  19. Distributive AwardsEmbler v. Embler • If court cannot identify liquid assets to pay award, must identify non-liquid source of funds • Ex. retirement funds or loans • If non-liquid source used, court must consider “adverse financial ramifications” as distribution factors • 50-20(c)(9): must consider liquid/non-liquid character of assets • 50-20(c)(11): must consider tax consequences of distribution

  20. Equitable DistributionEmbler v. Embler • Court’s findings regarding distribution factors were insufficient • Identified factors lacked detail – examples: • Husband paid debts, but amount not identified • Husband had separate property, but no finding whether liquid or non-liquid • No QDRO desired, but no finding re tax consequences of “dipping into” retirement account • Statement that court “also considered the other factors” created ambiguity

  21. Equitable DistributionPension classification • Award of pension determined using proportion of time marriage existed (up to date of separation), simultaneously with employment which earned the pension, to the total amount of time of employment. • GS 50-20.1(d) • Referred to as the “coverture fraction” • Bishop, 113 NC App 725 (1994) • Lewis, 83 NC App 438 (1986)

  22. Pension classification • Embler v. Embler • Entire pension classified as marital even though 8 years (1/3 of total in this case) accumulated before marriage because defendant failed to introduce evidence of the value of the pension on the date of marriage • Compare Gagnon, 149 NC App 194 (2002) and Atkinson v. Chandler, 130 NC App 561 (1998) – both holding coverture fraction is required even when value actually earned by pre-marital effort.

  23. Domestic ViolenceEagle v. Johnson (COA Aug 2003) • Court’s dismissal of 50B claim in another county may bar subsequent 50B action based on same facts • Res judicata applies if defendant proves • Final judgment entered in earlier case • Identical causes of action in both cases • Identical parties (or parties in privity) in both case

  24. ContemptMiddleton (COA July 2003) • Civil contempt appropriate where defendant “thwarted sale of marital residence” thereby violating the “spirit and intent” of ED order • Compare Scott v. Scott (COA May 2003) • No contempt for conduct not specifically prohibited by custody order

  25. Civil Procedure • Chillari (COA Aug. 2003) • Objection to venue waived if not filed within 30 days of service of process • Scruggs v. Chavis (COA Sept. 2003) • When notice of hearing and final motion calendar conflict, motion calendar controls • “Fundamental principle: civil calendars set by court and not by lawyers”

  26. Collaborative law • S.L. 2003-371 creates new GS 50-70 through 79: “Collaborative Law Proceeding” • Effective October 1, 2003 • Voluntary settlement procedure for all issues arising from divorce except absolute divorce

  27. Collaborative Law • Parties and counsel agree in writing to make good faith attempt to resolve all issues without court intervention • If successful, parties entitled to judgment to effectuate terms of agreement • If unsuccessful, can continue or initiate court proceedings

  28. Collaborative Law • If process is not successful: • Attorneys are prohibited from representing parties in future court proceedings, and • Attorney and expert work product and communications not admissible in litigation without agreement of parties

  29. Collaborative Law • If case pending in court when agreement to collaborate is signed, notice must be filed with court • Upon filing of notice, “the court shall take no further action in the case, including dismissal” until notified that procedure is complete

  30. Collaborative Law • A valid agreement to engage in the collaborative procedure tolls “all legal time periods applicable to legal rights and issues under law between the parties” while agreement remains in effect – including • Statutes of limitations • Filing deadlines • Discovery and scheduling orders

More Related