Case Updates – ED and Life Insurance

By Ketan P. Soni

Crago v. Crago – Mecklenburg County

During the parties’ marriage, they both liquidated 401(k) accounts and pension plans due to unemployment.  Husband went back to work, and Wife enrolled in school. A few years later, the parties opened up a joint account where both Husband and Wife would draw money, and Wife would sometimes withdraw funds to transfer to her separate account.

Wife had children from a previous marriage. Prior to this marriage, that ex-husband took out a $1M life insurance policy and named Wife the beneficiary. Wife partially paid the insurance premiums with funds received from Husband.  That ex-husband died, and 4 months later the parties separated.

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“Murder on Birchleaf Drive: Trial Strategy for True Crime Lovers”

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When Meredith Fisher discovered her sister Michelle’s brutally beaten and lifeless body on the floor of the master bedroom she shared with her husband Jason, a quest for justice began—one that would ultimately last 12 years and end in the murder conviction of Jason Lynn Young in a Wake County courtroom.

The compelling story is told in Murder on Birchleaf Drive by Poyner Spruill lawyer and NCBA member Steven B. Epstein.

The Jason Young murder case is also now the focus of a 3-hour CLE program Epstein will present on January 10 at the N.C. Bar Center titled “Murder on Birchleaf Drive: Trial Strategy for True Crime Lovers.”

Click here to access brochure.  Click here to register.

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The Power of Books: The Creation of a Law Office Library

By R. Maria Hawkins

In October, I organized a local event in Raleigh after falling in love with the book, Mommy Lawyer.  As a mom of an energetic 19-month old, I was all too familiar with the guilt of missing out on parts of his life due to a busy litigation schedule.  Once I read Molly’s book I knew that this powerful message needed to be highlighted and celebrated. Molly’s book highlights the real-life struggles many lawyers face, including missing out on big moments, class parties, or getting home after bedtime.

I came across this book when looking for books for my office library for my clients and their children.  Below is a list of children’s books that may be a good start for your office library!

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Case Law Updates – 3rd party custody

By Becky Watts

Chávez v. Wadlington, September 27, 2019, NC Supreme Court No. 366A18

October 2, 2018, COA 18-93 (third party custody, standing)

Mother and Father were separated and had an informal custody schedule wherein the children lived with Mother and visited with Father.  Plaintiff and Mother were in a multi-year relationship and during that relationship, Mother asked Plaintiff to act as a second Mother to the children.  Plaintiff acted as a second mother for about 7 years, taking on all of the responsibilities a parent would take on.  When Plaintiff and Mother broke up, Plaintiff attempted to communicate with Mother about seeing the children, but Mother refused to respond.  Finally, about a year after the breakup, Plaintiff initiated a custody action against Mother and Father. Neither Mother nor Father filed an Answer and neither responded to Plaintiff’s request for admissions.  Partway through the temporary custody hearing, Mother and Father filed a motion to dismiss Plaintiff’s complaint for lack of standing.  The trial court took limited testimony before ruling on the motion to dismiss but would not allow Plaintiff to present all of her evidence against the motion.  The trial court dismissed Plaintiff’s claim, in part because the trial court felt that at the time Plaintiff filed her complaint, she did not have the requisite relationship with the children.  Plaintiff appealed to the Court of Appeals.

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Family Law Section CLE Committee Update!

By Jill Jackson

Happy November from the NCBA Family Law Section’s CLE Committee!  We have some exciting updates to share about upcoming CLEs:

The Family Law Intensive Seminar:  Complex Emerging Issues in Family Law will be offered live at the Charlotte Marriott City Center on November 14-15 and at the Wrightsville Beach Holiday Inn Resort on January 30-31.  This program includes topics on changes to the equitable distribution statute, the new tax law, gray divorce, bankruptcy, social media, mental health and so much more!  Register online here.

The Family Law Section Annual Meeting is scheduled for May 1-2, 2020, at the Francis Marion Hotel in historic Charleston, South Carolina.  Kim Bonuomo & Robin Stinson are planning an exciting program for our section!

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Richard Lee Bender v. Alisha Hornback – Timing of Notice of Appeal

By Ashley Grim

Richard Bender v. Alisha Hornback

Plaintiff’s notice of appeal was untimely and deficient under the Rules of Appellate Procedure and his arguments were without merit. Dismissed in part; affirmed in part.

Plaintiff and Defendant entered into a consent order in 2014 in which Plaintiff was granted full legal custody and primary physical custody of the child and Defendant was awarded visitation.  Plaintiff filed a motion in June 2018 requesting in part, emergency custody alleging the child was in danger of serious and immediate injury. After a hearing on 12 July 2018, the Court entered a Memorandum of Consent Order in which Plaintiff dismissed his 2018 Motion with prejudice and acknowledged there was no basis for his claims and the minor child was not in danger. The terms of the memorandum order were handwritten and specifically provided that a formal judgment/order reflecting the same terms would be prepared and signed by the presiding judge out of session.  In addition, the parties stipulated that with the signing of the Memorandum by the presiding judge, it shall become a judgment/order of the court pursuant to Rule 58 of the North Carolina Rules of Civil Procedure on the date filed with the Clerk.

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Interstate Support Orders – Henry C. Watkins v. Jennifer L. Benjamin

By Ashley Grim

Henry C. Watkins v. Jennifer L. Benjamin (f/k/a Watkins), Published 

Defendant and her trial counsel appealed from the trial court’s order of 28 December 2017 which concluded that North Carolina retained ongoing, exclusive jurisdiction of the matters of custody and support of the minor children..  The Court of Appeals affirmed.

A temporary consent order was entered on 17 July 2014 awarding Plaintiff father and Defendant mother joint custody of the children with primary placement to Plaintiff in Buncombe County.  On 9 October 2015, an order was entered which found Defendant had relocated to Maryland, awarded custody to Plaintiff, and ordered Defendant to pay Plaintiff child support (including arrears) and temporary prospective child support.

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DVPO – Pleading Requirements

By Becky Watts

Martin v. Martin, July 16, 2019, COA 18-465-2 (DVPO, pleading requirements)

At the hearing on Plaintiff’s complaint for a domestic violence protective order, Plaintiff testified about specific incidents that had not been mentioned in her complaint.  Defendant objected to the testimony, but the trial court allowed it and ultimately entered a DVPO which included findings of fact regarding the incidents that had not been mentioned in the complaint.  Defendant appealed.

The Court of Appeals issued an opinion on December 18, 2018.  In that opinion, the Court of Appeals reversed the trial court’s order because the trial court violated Defendant’s due process rights by allowing Plaintiff to present evidence of acts that were not alleged in the complaint. Plaintiff filed a Petition for Rehearing, which was granted by the Court of Appeals.

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DVPO – A ‘Bunting We Will DVPO

By Becky Watts

Bunting v. Bunting, July 16, 2019, COA18-839 (DVPO, harassment, legitimate purpose for communication)

Between 2007 and 2012, Plaintiff obtained four DVPOs against Defendant.  Defendant repeatedly violated those orders.  In July 2017, Plaintiff filed a complaint seeking another domestic violence protective order.  In her complaint, Plaintiff alleged that the parties’ custody order included a no contact provision and that in violation of that provision, Defendant sent her six unsolicited text messages and that those messages caused her distress.  In January 2018, the trial court entered a DVPO against Defendant.  Defendant appealed, arguing:

  1. The text messages served a legitimate purpose (discussing the children), so they were not harassing.
  2. There was no evidence Plaintiff suffered emotional distress.
  3. The conclusion of law that Defendant committed acts of domestic violence was not supported by adequate findings of fact because the finding referenced was analogous to a finding of a “vague history of abuse” which cannot support issuance of a DVPO.

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Using Our Skills to Make a Difference – Pro Bono Month and Domestic Violence Awareness Month

By Larissa Mañón Mervin

 With the welcome of October comes the opportunity to honor National Pro Bono Month and Domestic Violence Awareness Month. While October is the month we choose to bring awareness to these topics, I want to challenge us to think about domestic violence throughout the year and to think about ways we can volunteer with various organizations to bring about the cessation of family violence.

In 2019 alone, we have seen 33 domestic violence homicides in NC so far.[1] Last year, there were 53 domestic violence homicides in our state. [2] Nationally, on average, 24 people per minute are victims of intimate partner violence.[3] Severe physical violence in an intimate partner relationship affects 1 in 4 women nationally and 1 in 7 men nationally.[4] Nationally, 30-60% of abusers also abuse children in the household.[5] These statistics are discouraging and frightening.

So what can we do about it? Sign up to volunteer with Legal Aid of North Carolina! Legal Aid lawyers across the state spend countless hours advocating for survivors of domestic violence as part of Legal Aid’s Domestic Violence Prevention Initiative. An academic study by two economists found that access to civil legal aid was one of the three major factors explaining the 21% decline in domestic violence during the ‘90s. The economists found that access to civil legal aid was more likely to decrease domestic violence than the availability of shelters, hotlines and counseling programs for victims.[6] That’s incredible and you can be a part of that by volunteering to help in whichever capacity you can.

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