1. Family Law Update Cheryl Howell October 2005

2. Contempt Order: Dad pay medical expenses plus $200 per month Mom: Dad didn’t pay; has work skills in furniture industry Dad: “I don’t 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 obligor’s 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 Reform SL 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 debt GS 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 plaintiff’s portion of his retirement is reduced.” OK??????

24. Equitable Distribution Major assets are marital home and husband’s 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 court’s 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 doesn’t 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 Custody SL 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 Support SL 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 Violence SL 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 Violence SL 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