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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

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Domestic law case and legislative update

Domestic Law Case and Legislative Update

Cheryl Howell

Institute of Government

October 2003


  • 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”


  • 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

Custody best interest test
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

Custody temporary orders
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)

Custody temporary orders1
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

Custody appeals

  • 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”

Child support modification
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

Child support modification1
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

Child support imputing income
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”

Child support separation agreement
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)

Child support legislation
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

Equitable distribution rice v rice coa aug 2003
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?

Equitable distribution
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)

Equitable distribution1
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

Equitable distribution2
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

Equitable distribution distributive awards 50 20 e
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

Distributive awards
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

Distributive awards embler v embler
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

Equitable distribution embler v embler
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

Equitable distribution pension classification
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)

Pension classification
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.

Domestic violence eagle v johnson coa aug 2003
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

Contempt middleton coa july 2003
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

Civil procedure
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”

Collaborative law
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

Collaborative law1
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

Collaborative law2
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

Collaborative law3
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

Collaborative law4
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