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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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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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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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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By Ketan P. Soni

Hat tip to @cjfoxlaw:

“Being a lawyer is really just having everyone mad at you, all the time. Opposing party. Opposing counsel. Your client. Your client’s mom. The judge. Clerks. Random people on the street asking for legal advice that is out of your practice area. Your dog. Basically everyone.”

If that’s what the practice of law has become, we can at least be thankful for the awesome members of our active section!