During the time Husband and Wife were married to each other, Husband’s ex-wife died. Husband was beneficiary of a life insurance policy that ex-wife had maintained. During the marriage of Husband and Wife, some of the life insurance proceeds were used to make purchases. In the equitable distribution proceeding, Wife claimed the life insurance proceeds and the items purchased with it were marital property of Husband and Wife. Husband claimed it was all separate property. The trial court classified the proceeds and the items purchased with the proceeds as Husband’s separate property. Wife appealed.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2020-07-02 09:43:242020-08-12 17:11:10Case Law Update: ED and Classification of Life Insurance Proceeds
Plaintiff and Defendant had been in a romantic relationship until Plaintiff ended it and asked Defendant not to contact her again. At the time their relationship ended, Plaintiff was a college student in South Carolina and Defendant lived in Connecticut. At some point after the breakup, Plaintiff moved to North Carolina. On her first day living in North Carolina, Defendant called her 28 times. Plaintiff filed a complaint for a domestic violence protective order. Defendant appeared solely to contest personal jurisdiction. The trial court denied Defendant’s motion to dismiss for lack of personal jurisdiction and entered a DVPO against Defendant. Defendant appealed.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2020-07-02 09:42:492020-08-12 17:09:11Case Law Update: DVPO and Personal Jurisdiction
After finding that visitation with Mother would not be in the children’s best interest, the trial court awarded sole physical custody to Father, denied visitation to Mother, and allowed Father to “permit custodial time between the children and [Mother] within his sole discretion.” Mother appealed.
The Court of Appeals held that before applying a best interest test to deny custodial and visitation rights to a parent, the trial court must (1) make a written finding of fact that that parent is “unfit or has engaged in conduct inconsistent with is protected status as parent” and (2) “make those findings based upon clear, cogent, and convincing evidence.” In reaching this determination, the Court of Appeals relied upon the holding in Moore v. Moore, 160 N.C. App. 569 (2003), in which the Court of Appeals held that “in a custody dispute between a child’s natural or adoptive parents, absent a finding that the parents are (i) unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care and control of their children must prevail.” The Court in Moore based its decision upon the holding in Petersen v. Rogers, 337 N.C. 397 (1994). In her dissent, Judge Inman reasoned that the statute clearly allowed a denial of visitation based upon a best interest determination alone and that Moore had been wrongfully decided and disavowed, and was not controlling.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2020-07-02 09:42:182020-08-12 16:57:58Case Law Update: Supreme Court on Custody and Denial of Visitation
On June 24, 2020, Gov. Roy Cooper signed Executive Order No. 147(“Order 147”), which extends North Carolina’s Phase 2 easing of coronavirus restrictions until 5 p.m. on July 17, 2020. Significantly, Executive Order No. 147 not only delays Phase 3 easing of restrictions but also includes certain amendments to Gov. Cooper’s original Phase 2 Order requiring additional protective measures to mitigate the spread of COVID-19. These additional measures, which went into effect at 5 p.m. on Friday, June 26, 2020, include a requirement for face coverings at construction sites. Specifically, and pursuant to Section II of Order 147, Gov. Cooper’s initial Phase 2 order has been amended to require that all construction workers “must wear face coverings when they are or may be within six (6) feet of another person.”
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2020-07-01 14:11:062020-08-12 16:35:22Effective June 26, 2020: Face Coverings Required At Construction Sites Where Six Feet Of Social Distancing Is Not Possible
On Thursday, May 28, 2020, the NCBA Workers’ Compensation Section hosted an informal discussion regarding the use of the Zoom videoconference platform in the mediation environment. Ketan Soni, partner with Soni Brendle, PLLC in Charlotte, presented on the general use of Zoom, provided tips on how to adjust your settings to most effectively use the platform and offered guidance on how to be successful during the mediation process. It was a jam-packed presentation and should be useful to our practices as we grow more accustomed to using video conferences daily!
You can view another helpful video that Ketan recorded here. In this video, Ketan further highlights the tips he covered in his presentation.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00WorkersComphttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngWorkersComp2020-07-01 11:14:022020-08-12 16:33:11Ketan Soni Gives Presentation On "Zoom Mediations and Practice Tips"
The North Carolina Business Court lists on its website Orders of Significance—unpublished Business Court opinions “regarding a matter of significance.” Although Judge Gale’s order on the enforcement of a settlement agreement last month in Howard, et al. v. Iomaxis, LLC, 20 NCBC 36 did not make the list, it nevertheless serves as a good reminder for practitioners: a mediated settlement agreement leaving additional terms to be memorialized later may result in an unenforceable agreement.
To me, the most interesting part of Judge Gale’s order in Howard was not the conclusion— because as discussed below, the parties did not agree on all material terms, and thus he refused to enforce the settlement agreement—but a citation to N.C. Nat’l Bank v. Wallens, 26 N.C. App. 580, 583 217 S.E.2d 12, 15 (1975). This case was decided well before mediation became mandatory in North Carolina and states that a “reference to a more ‘complete’ document does not necessarily indicate that material portions of the agreement have been left open for future negotiation. It could mean only that immaterial matters, which are of no consequence, will be added to complete the agreement.”
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Litigationhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLitigation2020-06-30 16:41:202020-06-30 16:43:31When Is A Settlement Agreement A Final Settlement Agreement?
Art MacCord is a patent attorney with 40 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Find his latest updates here:
NCBA IPL Section Blog News Blasts For June 30, 2020
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00IntellectualPropertyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngIntellectualProperty2020-06-30 12:58:592020-06-30 12:58:59MacCord’s List: IP News & Notices From Art MacCord
On June 17, the Equal Employment Opportunity Commission updated its COVID-19 guidance (scroll down to A.7) to state that employers cannot require employees to take COVID-19 antibody tests in order to return to work. Although employers are allowed to take employee temperatures and to test for current COVID-19 infection, the EEOC says that antibody testing violates the Americans with Disabilities Act.
After near shutdown of the U.S. economy in March and April, most employers have been bringing employees back to work. Some experts, eager to prevent further disruption, have suggested using serologic (antibody) testing to identify those who have had the virus and therefore may be eligible to safely return. Some companies have been marketing antibody testing programs to employers.
The Fourth Circuit has ruled Charleston, South Carolina’s tour guide licensure program unconstitutional. On June 11, 2020, the Fourth Circuit Court of Appeals issued a published opinion in Billups v. City of Charleston, No. 19-1044, 2020, U.S. App. LEXIS 18398 (4th Cir. June 11, 2020). The plaintiffs challenged a city licensing requirement for tour guides as “an unconstitutional restriction of their First Amendment right to free speech.” The opinion states that “[t]he [district] court concluded that the City has a significant interest in protecting its tourism industry, but that the Ordinance nevertheless fails intermediate scrutiny because it is not narrowly tailored to serve the City’s interest. As explained below, we agree and therefore affirm.”
Dan McLawhorn, senior associate city attorney for the City of Raleigh, is the 2020 recipient of the Administrative Law Award for Excellence, an annual award given by the Administrative Law Section of the North Carolina Bar Association.
McLawhorn has been a leading environmental and administrative lawyer for more than four decades. He began his career at the North Carolina Attorney General’s Office, where Attorney General Rufus Edmisten assigned McLawhorn to lead the Administrative Law Section of the Attorney General’s Office in 1979. Six years later, Attorney General Lacy Thornburg appointed McLawhorn to serve as his representative at the General Assembly during the effort to reform the state’s Administrative Procedures Act, an effort which ultimately led to the passage of Chapter 150B. McLawhorn later served as general counsel of the North Carolina Department of Environment and Natural Resources from 1998-2001.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Administrativehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAdministrative2020-06-29 12:25:542020-06-29 12:52:44Dan McLawhorn Receives The 2020 Administrative Law Award for Excellence
Case Law Update: ED and Classification of Life Insurance Proceeds
Family Law SectionRichter v. Richter, decided COA June 2, 2020 (equitable distribution, classification of life insurance proceeds)
During the time Husband and Wife were married to each other, Husband’s ex-wife died. Husband was beneficiary of a life insurance policy that ex-wife had maintained. During the marriage of Husband and Wife, some of the life insurance proceeds were used to make purchases. In the equitable distribution proceeding, Wife claimed the life insurance proceeds and the items purchased with it were marital property of Husband and Wife. Husband claimed it was all separate property. The trial court classified the proceeds and the items purchased with the proceeds as Husband’s separate property. Wife appealed.
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Case Law Update: DVPO and Personal Jurisdiction
Family Law SectionMucha v. Wagner, decided COA June 2, 2020 (DVPO, personal jurisdiction)
Plaintiff and Defendant had been in a romantic relationship until Plaintiff ended it and asked Defendant not to contact her again. At the time their relationship ended, Plaintiff was a college student in South Carolina and Defendant lived in Connecticut. At some point after the breakup, Plaintiff moved to North Carolina. On her first day living in North Carolina, Defendant called her 28 times. Plaintiff filed a complaint for a domestic violence protective order. Defendant appeared solely to contest personal jurisdiction. The trial court denied Defendant’s motion to dismiss for lack of personal jurisdiction and entered a DVPO against Defendant. Defendant appealed.
Read more
Case Law Update: Supreme Court on Custody and Denial of Visitation
Family Law SectionRoutten v. Routten, N.C. Supreme Court, decided June 5, 2020 (custody, denial of visitation)
After finding that visitation with Mother would not be in the children’s best interest, the trial court awarded sole physical custody to Father, denied visitation to Mother, and allowed Father to “permit custodial time between the children and [Mother] within his sole discretion.” Mother appealed.
The Court of Appeals held that before applying a best interest test to deny custodial and visitation rights to a parent, the trial court must (1) make a written finding of fact that that parent is “unfit or has engaged in conduct inconsistent with is protected status as parent” and (2) “make those findings based upon clear, cogent, and convincing evidence.” In reaching this determination, the Court of Appeals relied upon the holding in Moore v. Moore, 160 N.C. App. 569 (2003), in which the Court of Appeals held that “in a custody dispute between a child’s natural or adoptive parents, absent a finding that the parents are (i) unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care and control of their children must prevail.” The Court in Moore based its decision upon the holding in Petersen v. Rogers, 337 N.C. 397 (1994). In her dissent, Judge Inman reasoned that the statute clearly allowed a denial of visitation based upon a best interest determination alone and that Moore had been wrongfully decided and disavowed, and was not controlling.
Read more
Effective June 26, 2020: Face Coverings Required At Construction Sites Where Six Feet Of Social Distancing Is Not Possible
Construction Law SectionBy Riley W. Smith
On June 24, 2020, Gov. Roy Cooper signed Executive Order No. 147 (“Order 147”), which extends North Carolina’s Phase 2 easing of coronavirus restrictions until 5 p.m. on July 17, 2020. Significantly, Executive Order No. 147 not only delays Phase 3 easing of restrictions but also includes certain amendments to Gov. Cooper’s original Phase 2 Order requiring additional protective measures to mitigate the spread of COVID-19. These additional measures, which went into effect at 5 p.m. on Friday, June 26, 2020, include a requirement for face coverings at construction sites. Specifically, and pursuant to Section II of Order 147, Gov. Cooper’s initial Phase 2 order has been amended to require that all construction workers “must wear face coverings when they are or may be within six (6) feet of another person.”
Read more
Ketan Soni Gives Presentation On “Zoom Mediations and Practice Tips”
Workers' Compensation SectionOn Thursday, May 28, 2020, the NCBA Workers’ Compensation Section hosted an informal discussion regarding the use of the Zoom videoconference platform in the mediation environment. Ketan Soni, partner with Soni Brendle, PLLC in Charlotte, presented on the general use of Zoom, provided tips on how to adjust your settings to most effectively use the platform and offered guidance on how to be successful during the mediation process. It was a jam-packed presentation and should be useful to our practices as we grow more accustomed to using video conferences daily!
You can view another helpful video that Ketan recorded here. In this video, Ketan further highlights the tips he covered in his presentation.
When Is A Settlement Agreement A Final Settlement Agreement?
Litigation SectionThe North Carolina Business Court lists on its website Orders of Significance—unpublished Business Court opinions “regarding a matter of significance.” Although Judge Gale’s order on the enforcement of a settlement agreement last month in Howard, et al. v. Iomaxis, LLC, 20 NCBC 36 did not make the list, it nevertheless serves as a good reminder for practitioners: a mediated settlement agreement leaving additional terms to be memorialized later may result in an unenforceable agreement.
To me, the most interesting part of Judge Gale’s order in Howard was not the conclusion— because as discussed below, the parties did not agree on all material terms, and thus he refused to enforce the settlement agreement—but a citation to N.C. Nat’l Bank v. Wallens, 26 N.C. App. 580, 583 217 S.E.2d 12, 15 (1975). This case was decided well before mediation became mandatory in North Carolina and states that a “reference to a more ‘complete’ document does not necessarily indicate that material portions of the agreement have been left open for future negotiation. It could mean only that immaterial matters, which are of no consequence, will be added to complete the agreement.”
Read more
MacCord’s List: IP News & Notices From Art MacCord
Intellectual Property Law SectionArt MacCord is a patent attorney with 40 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Find his latest updates here:
NCBA IPL Section Blog News Blasts For June 30, 2020
USPTO extends certain CARES Act relief for small and micro entities
https://www.uspto.gov/about-us/news-updates/uspto-extends-certain-cares-act
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Employers Cannot Require Coronavirus Antibody Testing, EEOC Says
Labor & Employment LawOn June 17, the Equal Employment Opportunity Commission updated its COVID-19 guidance (scroll down to A.7) to state that employers cannot require employees to take COVID-19 antibody tests in order to return to work. Although employers are allowed to take employee temperatures and to test for current COVID-19 infection, the EEOC says that antibody testing violates the Americans with Disabilities Act.
After near shutdown of the U.S. economy in March and April, most employers have been bringing employees back to work. Some experts, eager to prevent further disruption, have suggested using serologic (antibody) testing to identify those who have had the virus and therefore may be eligible to safely return. Some companies have been marketing antibody testing programs to employers.
Read more
Fourth Circuit Rules On Occupational Licensing Issue
Administrative LawThe Fourth Circuit has ruled Charleston, South Carolina’s tour guide licensure program unconstitutional. On June 11, 2020, the Fourth Circuit Court of Appeals issued a published opinion in Billups v. City of Charleston, No. 19-1044, 2020, U.S. App. LEXIS 18398 (4th Cir. June 11, 2020). The plaintiffs challenged a city licensing requirement for tour guides as “an unconstitutional restriction of their First Amendment right to free speech.” The opinion states that “[t]he [district] court concluded that the City has a significant interest in protecting its tourism industry, but that the Ordinance nevertheless fails intermediate scrutiny because it is not narrowly tailored to serve the City’s interest. As explained below, we agree and therefore affirm.”
Dan McLawhorn Receives The 2020 Administrative Law Award for Excellence
Administrative LawDan McLawhorn, senior associate city attorney for the City of Raleigh, is the 2020 recipient of the Administrative Law Award for Excellence, an annual award given by the Administrative Law Section of the North Carolina Bar Association.
McLawhorn has been a leading environmental and administrative lawyer for more than four decades. He began his career at the North Carolina Attorney General’s Office, where Attorney General Rufus Edmisten assigned McLawhorn to lead the Administrative Law Section of the Attorney General’s Office in 1979. Six years later, Attorney General Lacy Thornburg appointed McLawhorn to serve as his representative at the General Assembly during the effort to reform the state’s Administrative Procedures Act, an effort which ultimately led to the passage of Chapter 150B. McLawhorn later served as general counsel of the North Carolina Department of Environment and Natural Resources from 1998-2001.
Read more