Equitable Distribution, Unequal Distribution of Marital Property, Classification, Valuation; COA17-899; August 2018
Dwight Watson v. Gurtha Watson
Wake County
In this nearly 20 year marriage, this case was tried on Equitable Distribution. The court awarded an unequal distribution to Wife, which Husband appealed.
The parties had a home acquired one year before marriage held as joint tenants, which the court found was “separate property” of each of the parties. Despite this classification, the court distributed the entire home to Wife, and the court ordered Husband to pay the HELOC secured by the residence.
Custody Modification, COA17-990, Aug. 21, 2018 David W. Shell & Donna Shell v. David Dwayne Shell & Nicole Green Watauga County
A custody order was entered in 2012. Plaintiffs are the paternal grandparents.
Defendant is the father of the children, and Nicole is the mother.
In 2012, Father was granted sole legal and physical custody of the children. Mother was granted visitation. Father lived with Grandparents at the time.
After trial on the Motion to Modify, the trial court reversed custody and granted primary physical custody to Mother.
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This year, your Family Law Section Communications Committee Chairs intend to put some structure into blog posting to show the rest of the NCBA that the Family Law Section is where to look for model behavior. Let’s face it: We kind of “win” against most other sections, right?
What is blogging? It’s the “new” newsletter. We just had the Family Law Section Annual Meeting with the theme “Brave New World: Is the Future of Family Law Utopian, Dystopian or Somewhere in Between?” We are attempting to live those (utopian) ideals by moving toward providing more frequent information from and about the section. In any event, here’s the map:
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Summaries by Jeff Russell, Rebecca Poole, Jennifer Smith, Rachel Beard, Katie Fowler and Jessica Heffner
Custody Modification, Failed Reunification Therapy, Williams v. Chaney, COA16-834, July 18, 2017
Defendant–father appealed from a custody modification order which found that previous reunification therapy between the minor child and plaintiff–mother had failed, and that further reunification therapy would “re-traumatize” the minor child, but inexplicably ordered plaintiff–mother and the minor child to continue reunification therapy. Because the trial court’s findings of fact did not support its conclusions of law, the Court of Appeals vacated in part the custody modification order and remanded the case to the trial court with very specific instructions on what to include in the order on remand, including that a substantial change in circumstances had not occurred and that additional counseling was not required.
Equitable Distribution, Miller v. Miller, COA 16-486, April 18, 2017
In Miller v. Miller, the Court of Appeals addressed procedural and substantive issues regarding an equitable distribution claim. First, the Court of Appeals addressed application of N.C.R. Civ. P. 60(b)(6) to determine whether the trial court properly set aside a judgment of absolute divorce to allow the Wife to pursue an equitable distribution (hereafter “ED”) claim. The Court held the trial court properly entered its order vacating the divorce judgment under Rule 60(b)(6) to allow the Wife to pursue an ED claim. Specifically, Wife had filed a complaint for divorce from bed and board and ED at a time when the parties were not living separate and apart. The trial court granted her divorce from bed and board claim and the parties began living separate and apart on March 21, 2012. A consent order was entered on April 16, 2012, in which the court republished the Wife’s ED claim. Motions were entered regarding ED and the parties mediated the claim unsuccessfully in December 2012.
What if a joint custody order is entered in a state where the parents and child once lived, but then the child and parents all move — with the child living in-between mother’s home in State A and father’s home in State B? Which state would have jurisdiction to modify the foreign custody order? Would jurisdiction depend on which state had registered the order first?
The Uniform Child-Custody Jurisdiction and Enforcement Act sets out when a North Carolina court can modify a foreign child custody or child support order. See G.S. § 50A-203. Section 50A-203 specifies that this can only happen if a court of this state would have jurisdiction to make an initial child-custody determination, and a court of the other state determines it no longer has continuing, exclusive jurisdiction under G.S. 50A-202 (the child and no parent lives in that state or have a significant connection to that state) or that another state would be a more convenient forum under G.S. 50A-207, or a North Carolina court or a court of the other state determines that the child, the child’s parents and no person acting as a parent currently reside in the other state.
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Without notice to North Carolina or consultation with its Congressional delegation, Congress enacted, on Dec. 23, 2016, the National Defense Authorization Act for Fiscal Year 2017 (NDAA 17) and overrode North Carolina’s Seifert[1] formula and N.C.G.S. § 50-20.1(a)(3) and (d) for dividing pensions, as applied to military retired pay. With North Carolina’s substantial military population – the third-largest in the country – this means that many lawyers need to know how to present testimony and evidence in contested pension division cases, as well as how to prepare a properly worded military pension division order (MPDO).
This new rule will require a new set of skills for such lawyers.
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Equitable Distribution; Appeal After Remand; Value Of Marital Residence; Law Of the Case
Lund v. Lund (Lund II), No. COA16-813 (March 21, 2017)
(related Court of Appeals case: Lund v. Lund, __ N.C. App. __, 779 S.E.2d 175 (2015) (Lund I)
Plaintiff-wife appeals from the trial court’s revised equitable distribution order entered after the Court of Appeals remanded for further findings of fact. The Court of Appeals affirmed the trial court’s decision.
For many couples, the only way to build their family is through assisted reproductive technologies (ART) including in vitro fertilization (IVF). With IVF, eggs are retrieved from a woman’s body and fertilized with sperm in the laboratory, creating embryos that are grown for several days outside the body. At that point, many embryos are cryopreserved prior to transfer to a woman’s uterus. What becomes of such embryos if they remain in storage at the time of progenitors’ divorce?
Reproductive clinics usually require couples to sign documents detailing disposition of their embryos in the event of their deaths and in the event of non-payment of storage fees. Clinics may also require agreement between the couple detailing what should happen if the couple divorces or one spouse is incapacitated while embryos are frozen. Options include procreation by one or both spouses, donation to medical research, or thaw and degeneration of the embryos. In California, New Jersey and Massachusetts it is required by statute that the fertility center mandate their patients to agree on disposition in a variety of circumstances, including divorce (See for example, California: Health and Safety Code 125315).
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