In reading the most recent Court of Appeals decision on standing in North Carolina, Hoag v. Pitt County (19-826 – Unpublished), I’m reminded of Elton John’s hit “I’m Still Standing.” It seems like there is a new challenge to the standing requirements in North Carolina on a regular basis, and yet the appellate courts consistently hold the line on the requirement to allege special damages that are distinct from the rest of the community in a particularized and supportable way. In Hoag, the Court declined the opportunity to knock down the standing barrier. This requirement is very much “still standing … yeah, yeah, yeah.”
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00ZPLUhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngZPLU2020-05-13 09:52:472020-05-15 10:38:04Still Standing: COA Declines To Change Standing Requirements
On Friday, May 1, 2020, the Family Law Section participated in the North Carolina Bar Foundation’s first-ever “Virtual” Empower Hour. After our Virtual Section Meeting, members stayed on our Zoom call to login to NC Free Legal Answers and to help clear the Family Law question queue together. NC Free Legal Answers is a 100% virtual pro bono service where income-eligible North Carolina residents can ask civil legal questions for free. According to NCBF Pro Bono Staff Attorney, Jeanine Soufan, the most popular legal questions on the site are Family, Housing, and Consumer Law.
S.L. 2020-3, SB704 was passed by the House and Senate on May 2 and signed into law by the governor on May 4. It contains the following of interest to ZPLU members:
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00InsuranceLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngInsuranceLaw2020-05-12 23:05:222020-05-15 10:44:19Legislature Delays Enactment of 160D and Enacts Rules for Remote Meetings During State of Emergency
In June 2019, Disproportionate Minority Contact in North Carolina: An Assessment Study by Stan Orchowsky, Ph.D., Cambiare Consulting and Michael J. Leiber, Ph.D. and Chae M. Jaynes, Ph.D., University of South Florida, was released through a grant from the North Carolina Governor’s Crime Commission. This was the first statewide study on disproportionate minority contact (DMC) in the juvenile justice system since 2013.
The goal of the assessment study was to determine whether, where and why DMC exists in North Carolina’s juvenile justice system. The analysis is based on using the Relative Rate Index, or “RRI.” The RRI is the ratio of the proportion of minority youth at a given stage to the proportion of white youth at that same stage. If both groups are being processed at the same rate, then the RRI would be equal to 1. RRIs above 1 indicate disproportionate minority contact at that stage of the system.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00JuvenileJusticehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngJuvenileJustice2020-05-12 15:20:302020-05-12 16:50:49Disproportionate Minority Contact in North Carolina
On May 8, 2020, Julian Mann, Chief Administrative Law Judge of the Office of Administrative Hearings, issued an order regarding the timeliness of contested case petition filings. Read the order below or here. There are other orders related to the COVID-19 emergency on the OAH website here.
State of North Carolina
Office of Administrative Hearings
1711 New Hope Church Rd
Raleigh, NC 27609
On March 19, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the public health threat posed by COVID-19 exist in all counties of this state.” The Chief Justice’s Order of March 19, 2020, was set to expire at the close of business on April 17, 2020. On April 13, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the COVID-19 outbreak have existed and continue to exist in all counties of this state.” The Chief Justice’s Order of April 13, 2020, is set to expire at the close of business on June 1, 2020, with the caveat that “[a]dditional emergency orders or directives under N.C.G.S. § 7A-39(b) may be entered as necessary to support the continuing operation of essential court functions.”
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.pngAdministrative2020-05-12 13:15:042020-05-13 09:40:49Contested Case Petition Filing Time
Formed by Chief Justice Beasley, the COVID-19 Judicial Task Force (Task Force) comprised of members of our judiciary, other court officials, and members of the bar has met twice to anticipate, identify, and discuss issues related to the transition of our courts back to full operations. The next meeting is scheduled for 2 p.m., May 13, 2020, and may be livestreamed. Additional Task Force information is available.
While the Task Force addresses issues statewide, our judicial districts are working tirelessly to develop plans and procedures for the resumption of local court functions in keeping with the directives of our Chief Justice, our Governor, and health care advisors. As judicial districts make information available, we will share it with this practice section. The statewide judicial conferences remain scheduled for the week of June 15, 2020.
Plaintiff filed a complaint for domestic violence protective order, to which she attached 12 pages of detailed allegations against Defendant. At the hearing, Defendant moved to dismiss the complaint for failure to state a claim. Defendant argued that the Court of Appeals decision in Martin v. Martin dictated a certain level of specificity in the pleadings, and that the pleading here failed because the attached pages were not referenced in the form complaint. Defendant did not argue that he did not receive the attachment pages or that he was unable to respond to the allegations (he had, in fact, filed an answer in which he responded to the allegations)—he simply argued that because the form complaint itself did not include language such as “see attached,” there was no way to tell whether the attachments were indeed part of the verified pleading. The trial court determined that based upon the Martin decision, plaintiff’s complaint should be dismissed because plaintiff’s allegations were not sufficiently specific to afford defendant due process. Plaintiff appealed.
The parties’ original custody order was entered in 2016 and granted custody to Mother. Father had limited visitation because at the time that order was entered, Father had ongoing mental health issues, an unhealthy relationship with his girlfriend, and an unstable living situation. In 2018, the trial court entered an amended custody order which kept physical custody with Mother, but which gave Father more visitation time. Mother appealed.
On appeal, Mother argued Father failed to meet his burden of showing a substantial change in circumstances because there had been no adverse change in her care of the children. The Court of Appeals affirmed the trial court’s order. In reaching its decision, the Court of Appeals noted that the trial court’s 2018 order included findings of many positive changes regarding Father and that a modification may be based upon positive findings of changed circumstances.
Prior to the parties’ separation, Wife filed a complaint for divorce from bed and board and equitable distribution. Husband filed an answer to the complaint and a notice of “intent to file for equitable distribution.” In his prayer for relief, Husband asked that he “be allowed to file for equitable distribution upon separation of the parties.” The parties then separated, and after separation, Husband filed what he captioned as an “amended counterclaim for equitable distribution” and asserted his equitable distribution claim. Wife then filed a motion asking that the trial court dismiss both parties’ equitable distribution claims. Husband filed a motion seeking dismissal of Wife’s equitable distribution claim. The trial court dismissed Wife’s claim, finding that Wife’s claim was asserted prior to the date of separation. The trial court did not dismiss Husband’s equitable distribution claim. In denying dismissal of Husband’s equitable distribution claim, the court found that Husband’s notice of intent to file for equitable distribution was not a counterclaim for equitable distribution and so the “amended counterclaim” for equitable distribution was not actually an amended claim (that would have related back to the date of the filing of the claim being amended), but was an initial claim, asserted after the date of separation. The trial court conducted an equitable distribution trial and entered its order, which 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.pngFamilyLaw2020-05-11 10:17:342020-05-12 12:59:50Case Law Update: Equitable Distribution
Recently, Smith Debnam introduced attorney Liz Blackwell, who joined Smith Debnam alumnus and “rejoinder,” Ron Jones, in the newly staked out Charleston, SC, office. Church Street in Charleston may be known for the many beautiful old churches. But move over old money; there’s a new wedding venue in the historic district!
Zoom on. You see, the first closing held in the new Smith Debnam office wasn’t a land purchase or a commercial loan. It was Liz’s contract of marriage! Conducted by Charleston County Probate Judge, Irv Condon, via a Zoom conference, Liz and hubby Graeme Ross, a Canadian physician currently completing a critical care fellowship in Kingston, Ontario, decided to go ahead and tie the knot. But there wasn’t a knot to be seen in a black tie or bow tie. Graeme wore scrubs as did three of his medical buddies, who all connected by videoconference. Liz was radiant in the Smith Debnam conference room, which, by the way, needs some wall hangings. No hand-holding, no eye gazing, no kissing of the bride. But a lovely, sweet, albeit quick ceremony warmed the hearts of those few “in attendance” and those with whom the video has been shared. Afterwards, the Smith Debnam Charleston office folks enjoyed a champagne toast, and the groom was back to the important work of providing health care.
Still Standing: COA Declines To Change Standing Requirements
Zoning Planning & Land Use SectionIn reading the most recent Court of Appeals decision on standing in North Carolina, Hoag v. Pitt County (19-826 – Unpublished), I’m reminded of Elton John’s hit “I’m Still Standing.” It seems like there is a new challenge to the standing requirements in North Carolina on a regular basis, and yet the appellate courts consistently hold the line on the requirement to allege special damages that are distinct from the rest of the community in a particularized and supportable way. In Hoag, the Court declined the opportunity to knock down the standing barrier. This requirement is very much “still standing … yeah, yeah, yeah.”
Read more
Family Law’s First Virtual Empower Hour
Family Law SectionLarissa Mañón Mervin
Jeanine Soufan
By Larissa Mañón Mervin and Jeanine Soufan
On Friday, May 1, 2020, the Family Law Section participated in the North Carolina Bar Foundation’s first-ever “Virtual” Empower Hour. After our Virtual Section Meeting, members stayed on our Zoom call to login to NC Free Legal Answers and to help clear the Family Law question queue together. NC Free Legal Answers is a 100% virtual pro bono service where income-eligible North Carolina residents can ask civil legal questions for free. According to NCBF Pro Bono Staff Attorney, Jeanine Soufan, the most popular legal questions on the site are Family, Housing, and Consumer Law.
Read more
Legislature Delays Enactment of 160D and Enacts Rules for Remote Meetings During State of Emergency
Zoning Planning & Land Use SectionBy Lisa Glover
S.L. 2020-3, SB704 was passed by the House and Senate on May 2 and signed into law by the governor on May 4. It contains the following of interest to ZPLU members:
Read more
Disproportionate Minority Contact in North Carolina
Juvenile Justice & Children's RightsIn June 2019, Disproportionate Minority Contact in North Carolina: An Assessment Study by Stan Orchowsky, Ph.D., Cambiare Consulting and Michael J. Leiber, Ph.D. and Chae M. Jaynes, Ph.D., University of South Florida, was released through a grant from the North Carolina Governor’s Crime Commission. This was the first statewide study on disproportionate minority contact (DMC) in the juvenile justice system since 2013.
The goal of the assessment study was to determine whether, where and why DMC exists in North Carolina’s juvenile justice system. The analysis is based on using the Relative Rate Index, or “RRI.” The RRI is the ratio of the proportion of minority youth at a given stage to the proportion of white youth at that same stage. If both groups are being processed at the same rate, then the RRI would be equal to 1. RRIs above 1 indicate disproportionate minority contact at that stage of the system.
Read more
Contested Case Petition Filing Time
Administrative LawOn May 8, 2020, Julian Mann, Chief Administrative Law Judge of the Office of Administrative Hearings, issued an order regarding the timeliness of contested case petition filings. Read the order below or here. There are other orders related to the COVID-19 emergency on the OAH website here.
State of North Carolina
Office of Administrative Hearings
1711 New Hope Church Rd
Raleigh, NC 27609
On March 19, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the public health threat posed by COVID-19 exist in all counties of this state.” The Chief Justice’s Order of March 19, 2020, was set to expire at the close of business on April 17, 2020. On April 13, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the COVID-19 outbreak have existed and continue to exist in all counties of this state.” The Chief Justice’s Order of April 13, 2020, is set to expire at the close of business on June 1, 2020, with the caveat that “[a]dditional emergency orders or directives under N.C.G.S. § 7A-39(b) may be entered as necessary to support the continuing operation of essential court functions.”
Read more
COVID-19 Update
Litigation SectionFormed by Chief Justice Beasley, the COVID-19 Judicial Task Force (Task Force) comprised of members of our judiciary, other court officials, and members of the bar has met twice to anticipate, identify, and discuss issues related to the transition of our courts back to full operations. The next meeting is scheduled for 2 p.m., May 13, 2020, and may be livestreamed. Additional Task Force information is available.
While the Task Force addresses issues statewide, our judicial districts are working tirelessly to develop plans and procedures for the resumption of local court functions in keeping with the directives of our Chief Justice, our Governor, and health care advisors. As judicial districts make information available, we will share it with this practice section. The statewide judicial conferences remain scheduled for the week of June 15, 2020.
Read more
Case Law Update: DVPO
Family Law SectionQuackenbush v. Groat, COA19-415, decided May 5, 2020 (DVPO)
Plaintiff filed a complaint for domestic violence protective order, to which she attached 12 pages of detailed allegations against Defendant. At the hearing, Defendant moved to dismiss the complaint for failure to state a claim. Defendant argued that the Court of Appeals decision in Martin v. Martin dictated a certain level of specificity in the pleadings, and that the pleading here failed because the attached pages were not referenced in the form complaint. Defendant did not argue that he did not receive the attachment pages or that he was unable to respond to the allegations (he had, in fact, filed an answer in which he responded to the allegations)—he simply argued that because the form complaint itself did not include language such as “see attached,” there was no way to tell whether the attachments were indeed part of the verified pleading. The trial court determined that based upon the Martin decision, plaintiff’s complaint should be dismissed because plaintiff’s allegations were not sufficiently specific to afford defendant due process. Plaintiff appealed.
Read more
Case Law Update: Custody Modification
Family Law SectionPadilla v. Whitley de Padilla, COA19-478, decided May 5, 2020 (Custody Modification)
The parties’ original custody order was entered in 2016 and granted custody to Mother. Father had limited visitation because at the time that order was entered, Father had ongoing mental health issues, an unhealthy relationship with his girlfriend, and an unstable living situation. In 2018, the trial court entered an amended custody order which kept physical custody with Mother, but which gave Father more visitation time. Mother appealed.
On appeal, Mother argued Father failed to meet his burden of showing a substantial change in circumstances because there had been no adverse change in her care of the children. The Court of Appeals affirmed the trial court’s order. In reaching its decision, the Court of Appeals noted that the trial court’s 2018 order included findings of many positive changes regarding Father and that a modification may be based upon positive findings of changed circumstances.
Case Law Update: Equitable Distribution
Family Law SectionBest v. Staton, COA19-638, May 5, 2020
Prior to the parties’ separation, Wife filed a complaint for divorce from bed and board and equitable distribution. Husband filed an answer to the complaint and a notice of “intent to file for equitable distribution.” In his prayer for relief, Husband asked that he “be allowed to file for equitable distribution upon separation of the parties.” The parties then separated, and after separation, Husband filed what he captioned as an “amended counterclaim for equitable distribution” and asserted his equitable distribution claim. Wife then filed a motion asking that the trial court dismiss both parties’ equitable distribution claims. Husband filed a motion seeking dismissal of Wife’s equitable distribution claim. The trial court dismissed Wife’s claim, finding that Wife’s claim was asserted prior to the date of separation. The trial court did not dismiss Husband’s equitable distribution claim. In denying dismissal of Husband’s equitable distribution claim, the court found that Husband’s notice of intent to file for equitable distribution was not a counterclaim for equitable distribution and so the “amended counterclaim” for equitable distribution was not actually an amended claim (that would have related back to the date of the filing of the claim being amended), but was an initial claim, asserted after the date of separation. The trial court conducted an equitable distribution trial and entered its order, which Wife appealed.
Read more
New Office! Wedding Venue! Say What?
Featured PostsBy Bettie Kelley Sousa
Recently, Smith Debnam introduced attorney Liz Blackwell, who joined Smith Debnam alumnus and “rejoinder,” Ron Jones, in the newly staked out Charleston, SC, office. Church Street in Charleston may be known for the many beautiful old churches. But move over old money; there’s a new wedding venue in the historic district!
Zoom on. You see, the first closing held in the new Smith Debnam office wasn’t a land purchase or a commercial loan. It was Liz’s contract of marriage! Conducted by Charleston County Probate Judge, Irv Condon, via a Zoom conference, Liz and hubby Graeme Ross, a Canadian physician currently completing a critical care fellowship in Kingston, Ontario, decided to go ahead and tie the knot. But there wasn’t a knot to be seen in a black tie or bow tie. Graeme wore scrubs as did three of his medical buddies, who all connected by videoconference. Liz was radiant in the Smith Debnam conference room, which, by the way, needs some wall hangings. No hand-holding, no eye gazing, no kissing of the bride. But a lovely, sweet, albeit quick ceremony warmed the hearts of those few “in attendance” and those with whom the video has been shared. Afterwards, the Smith Debnam Charleston office folks enjoyed a champagne toast, and the groom was back to the important work of providing health care.
Read more