Family Law Update

1
Family Law Update

• Cheryl Howell
• October 2005

2
Contempt

• Order Dad pay medical expenses plus 200 per
  month
• Mom Dad didnt pay has work skills in furniture
  industry
• Dad I dont like to work inside
• Contempt?????

3
Civil Contempt

• Order remains in effect
• Purpose of order may still be served by
  compliance
• Noncompliance is willful and
• Obligor has present ability to comply or to take
  reasonable steps to comply
• GS 5A-21(a)

4
Civil Contempt

• Willfulness 2 required findings
• Actual ability to comply at time of default, and
• Deliberate and intentional failure to comply

5
Civil Contempt

• Evidence to support finding of ability to comply
• able-bodied insufficient
• some income insufficient
• Need inventory of obligors financial condition
• Mauney, 268 NC 254 (1966)

6
Burden of Proof

• Initiated by show cause order burden on obligor
• Initiated by aggrieved party pursuant to GS
  5A-23(a1) burden on aggrieved party

7
Burden of Proof

• Either case
• Order must contain findings re willful
  noncompliance and present ability to pay, and
• Evidence must support the findings
• GS 5A-23(e)

8
Appeal bond

• Clark v. Gragg
• GS 1-289(a) allows bond to stay contempt order of
  incarceration pending appeal
• OK to order bond in full amount of arrears,
  payable directly to mom if contempt order
  affirmed on appeal

9
Contempt

• NC Order Maryland order entitled to full faith
  and credit. NC judgment for 13,178. Mom
  entitled to execution
• Mom Dad has put assets beyond reach of
  judgment and willfully failed to comply.
• Contempt?????

10
Contempt

• Contempt generally not available for money
  judgments
• Execution is appropriate remedy

11
Brown v. Brown

• Past due payments reduced to judgment and
  requiring periodic payments are enforceable by
  civil contempt
• GS 50-13.4(f)

12
Child Support ReformSL 2005-389

• Effective 2007 removes monitoring and
  enforcement duties from clerk of court
• Creates procedure for obligee to initiate
  enforcement by affidavit

13
Past paid public assistance debtGS 110-135

• State and obligor can agree to plan that may
  result in some of debt being forgiven
• Plan requires court approval upon inquiry into
  the financial status of the obligor
• Effective December 13, 2005

14
Paternity

• GS 49-14(a) complaint still needs birth
  certificate but not certified copy
• GS 130A-101(f) affidavit of paternity no longer
  creates presumption of paternity
• Effective Dec. 13, 2005

15
Bankruptcy

• Bankruptcy Abuse Prevention and Consumer
  Protection Act of 2005
• Applies to bankruptcy cases filed on or after
  October 17, 2005

16
Bankruptcy Changes

• Automatic stay no longer prohibits
• Any wage withholding
• Revocation of licenses
• Garnishment of tax refunds
• Custody, visitation, divorce and domestic
  violence proceedings

17
Bankruptcy Changes

• Gives support obligations first priority for
  payment in Chapter 7 cases
• Requires full payment of all support (pre and
  post filing obligations) in Chapter 13
• Makes all support obligations nondischargeable

18
Equitable Distribution

• Wife files complaint for divorce
• reserving claims for custody, alimony and ED
• Hearing on summary judgment divorce
• Wife files motion for ED
• Entry of divorce judgment
• Dismiss ED claim????

19
Equitable Distribution

• 50-21(a) any time after H W begin to live
  separate and apart, a claim for ED may be filed
  as a separate civil claim, or together with
  another Chapter 50 action, or as a motion in the
  cause as provided by GS 50-11(e) or (f).

20
Santana v. Santana

• Divorce judgment destroys right to ED unless
  asserted before entry of judgment
• Motion for ED filed after divorce hearing but
  before entry of judgment preserved ED claim

21
Retirement funds

• GS 50-20.1 applies to ALL types of pensions,
  retirement accounts and other deferred
  compensation benefits
• Classify by coverture fraction
• Value as of the date of separation
• Distribute by appropriate methods

22
Retirement Funds

• Cunningham v. Cunningham
• Order must contain date of separation value of
  defined benefit plans (pensions)
• Method for valuing plans set out in Bishop v.
  Bishop, 113 NC App 725 (1994)

23
Military Pensions

• Cunningham
• Defendant shall not take any steps designed to
  diminish or reduce amount of retirement pay he is
  entitled to receive by virtue of his military
  service to the end that plaintiffs portion of
  his retirement is reduced.
• OK??????

24
Equitable Distribution

• Major assets are marital home and husbands 401K.
  The assets have equal value.
• Husband wants you to consider the tax
  consequences that would result if he liquidates
  the 401K
• An appropriate distribution factor?????

25
Distribution Factors

• Before 10/01/05 only those tax consequences that
  will occur as result of the ordered distribution
• After 10/01/05 consider taxes that would have
  been incurred if the property had been sold or
  liquidated on the date of valuation.

26
Bankruptcy Reform

• Automatic stay still applies to ED
• ED claims and debts no longer subject to
  discharge
• except Chapter 13 super discharge

27
Parenting Coordinators

• New Chapter 50, Article 5
• GS 50-90, et. seq.
• Effective October 1, 2005
• Parenting Coordinator an impartial, qualified
  person appointed by court to aid parties in a
  Chapter 50 custody dispute

28
Authority of Coordinator

• Defined by the court
• Order must set out specific authority
• Trial court retains authority to manage case and
  determine fundamental issues

29
Authority to Coordinator

• To aid parties
• Identify issues
• Reduce misunderstandings
• Clarify priorities
• Explore compromises
• Develop methods of collaboration
• Comply with court orders

30
Authority of Coordinator

• May be authorized to decide issues not
  specifically governed by parenting order
• Parties have right to expedited review of
  coordinator decisions

31
Qualified Persons

• Masters/doctorate in psychology, law, social
  work, counseling, medicine, or related area
• 5 years experience in field
• Licensed in area of practice
• Completed 24 hour training program, and
• Continuing educational requirements

32
Appointment by Consent

• At any time in proceeding
• Can agree to limit authority
• Still must have appointment conference
• Must appoint a qualified person???

33
Appointment Without Consent

• Upon entry of a custody order, other than ex
  parte order
• Can do on own motion
• Upon finding
• Case is high conflict
• Appointment is in best interest of child(ren)
• Parties are able to pay coordinator

34
High Conflict Case

• Excessive litigation
• Anger distrust
• Verbal abuse
• Physical aggression or threats
• Difficulty communicating and cooperating, or
• Other in courts discretion

35
Procedure

• Must have appointment conference and appointment
  order
• Coordinator writes summaries of meetings
  supplies to parties
• Coordinator keeps records can be subpoenaed
  only by judge
• Communication not confidential
• No ex parte communication between judge and
  coordinator

36
Pay

• Coordinator entitled to reasonable compensation
  and retainer
• Court determines financial arrangement for fee
  to be paid by each party and can authorize
  coordinator to charge for bad behavior
• Coordinator can request hearing on fee dispute

37
Termination

• Court can modify or terminate for good cause
• Ending date in order???

38
Some issues

• Can parties agree to coordinator who doesnt meet
  statutory criteria?
• Can parties agree to authority not authorized by
  statute?
• Contempt available when parties disobey
  coordinator?
• Does appointment make order temporary?

39
Juvenile and CustodySL 2005-320

• Juvenile action stays all Chapter 50 custody
  proceedings
• Juvenile order controls conflicting custody order
• Juvenile judge can consolidate cases
• Juvenile judge can modify or create Chapter 50
  order

40
Alimony

• Marital fault (other than illicit sexual
  behavior) must be considered if evidence offered
• Weight up to judge
• Cunningham judge properly weighed allegation of
  abandonment

41
Alimony

• GS 50-16.3(A)(c) order must explain reasons for
  amount, duration and manner of payment
• Cunningham 2 year order remanded for explanation

42
Alimony

• Judge can resort to common sense and everyday
  experience to determine the reasonable needs and
  expenses of the parties.
• Cunningham v. Cunningham

43
Attorney fees

• Action with support, custody and ED findings
  must show that fees awarded only for custody and
  support claims
• Cunningham trial judge made reasonable
  approximation

44
Postseparation Support

• PSS alimony claims filed by wife
• PSS order entered (wife happy)
• Divorce granted
• Alimony claim dismissed
• PSS still payable????

45
Postseparation SupportSL 2005- 177

• PSS terminates upon earliest occurrence
• Date in order
• Order awarding, denying or dismissing alimony
• Entry of divorce if no alimony pending
• Cohabitation, reconciliation, or death
• And no PSS in divorce judgment unless alimony
  pending

46
Domestic ViolenceSL 2005-423

• Effective 10/01/05
• If find domestic violence must enter DVPO
  restraining defendant from further violence
• Renewals up to 2 years (except custody)
• Stay away orders must be delivered to schools
• No firearm return while criminal case pending

47
Domestic ViolenceSL 2005-423

• Effective 10/01/05
• Protected tenants entitled to have locks changed
  on rental premises
• Protected tenant with a safety plan can
  terminate rental agreements on 30 day notice

48
Family Law Arbitration Act

• GS 50-41 to allow arbitration of all issues
  arising from marital separation or divorce,
  except the divorce itself, while preserving the
  right to modification of alimony, child support
  and child custody
• Arbitration agreements are valid, enforceable
  and irrevocable except with both parties consent

49
Family Law Arbitration

• Court involvement in process
• Compel or stay arbitration proceedings
• Order interim relief
• Enforce subpoenas issued by arbitrators
• Order consolidation of 2 or more arbitration
  proceedings
• Confirm, vacate, correct or modify awards made by
  arbitrator
• Award costs and attorney fees
• Seal or redact records of awards