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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