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What Is The Law?

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What Is The Law?


What is the law is a question that we hear in practically every time we discuss a client’s matter. The statutes governing the legal aspects of family law are usually consistent but are amended from time to time by the North Carolina Legislature. The statutes are applied by the trial court Judge when making a determination regarding a specific set of facts in a case. Sometimes those decisions are appealed by a party who does not agree with how the Judge interpreted the law to their case. When a case is appealed, the North Carolina Court of Appeals or the North Carolina Supreme Court will issue an opinion regarding those specific facts or controversies involving how the trial court interpreted or administered the Statute when applied to those cases. Below are some recent opinions from the North Carolina Appellate Division.

Child Support:

The North Carolina Legislature has set out statutes regarding how and when child support is determined. Section 50-13.4 contains information regarding initial actions for child support and Section 50-13.7 contains information regarding actions for modification of child support.

Andrews v Andrews; (Request for modification of child support); Filed November 15, 2011, NO. COA11-433, from a Wake County decision.

Becky Andrews (defendant) appealed the trial court’s order modifying the child support obligation of her former husband, John Andrews (plaintiff). The parties entered into a consent order in 2002. At the time of the consent order, plaintiff was employed as an engineer and earned approximately $105,000 annually. In 2004, plaintiff changed jobs, accepting a position as an engineer at EMC Corporation (“EMC”) where his salary increased to approximately $172,000 in 2009. EMC also provided plaintiff with benefits such as health insurance. In March 2010, plaintiff voluntarily resigned from his position at EMC, and did so without having secured other employment.

On 14 May 2010, plaintiff filed a motion to modify his child support obligation. At a hearing on the motions, plaintiff testified that he could no longer maintain his child support obligation as required under the parties’ consent order. The evidence in the record did not support the trial court’s finding that there was “no evidence” of bad faith or an intentional disregard of his child support obligation. The trial court erred in concluding that plaintiff acted “in good faith, without a disregard for his child support obligation,” and its order was reversed.

Balawejder v Balawejder; (Modification of child custody; Order for child support); Filed 18 October 2011, NO. COA11-184, from a Mecklenburg County decision.

Witold Balawejder (“plaintiff”) appealed from the trial court’s orders modifying child custody, awarding permanent child support, and awarding attorney’s fees to Anita Balawejder (“defendant”).

On or about 10 June 2010, the trial court entered its “Order for Permanent Child Custody and Support” granting in part and denying in part defendant’s motion to modify the 26 March 2009 memorandum and ordering permanent child support. On 13 July 2010, plaintiff filed notice of appeal from the trial court’s 26 March 2009 memorandum, the 10 June 2010 “Order for Permanent Child Custody and Child Support[,]” and from the order “entered on July 2010 [sic] that awarded Defendant attorney fees[.]” On 1 October 2010, the trial court filed an order awarding attorney’s fees to defendant and a “supplemental order for attorney’s fees” awarding further attorney’s fees to defendant “for expenses incurred during trial and in preparing the final Custody and Child Support Order[.]” The Court of Appeals affirmed the trial court’s order modifying child custody and awarding child support but vacated the trial court’s order on attorney’s fees.

Child Custody:

The North Carolina Legislature has set out statutes regarding how and when child custody is determined. Section 50-13.1 contains information regarding initial actions for child support and Section 50-13.7 contains information regarding actions for modification of child custody.

Best v Gallup; (Child Custody) Filed: 6 September 2011, NO. COA10-1488, from a Wake County decision.

In 2004, plaintiff and defendant had a romantic relationship and informally adopted and raised together Defendant’s niece. In 2008, defendant legally adopted the child. Plaintiff and defendant had plans to marry once plaintiff returned from a job in Iraq so that he too could legally adopt the child. While plaintiff was in Iraq, Defendant informed the Plaintiff she was leaving him.

On 3 February 2010, plaintiff filed a verified complaint seeking custody of the child and an ex parte temporary custody order reinstating visitation with her. On 10 February 2010, defendant filed a motion to dismiss plaintiff’s complaint or remove the action for improper venue. On 5 March 2010, defendant filed a motion to dismiss for plaintiff’s lack of standing to bring the custody action. On 10 June 2010, the trial court entered an order, based on the 12 March 2010 hearing which (1) denied defendant’s motion to dismiss or remove the case for a different venue; (2) denied defendant’s motion to dismiss for lack of
standing, and (3) dismissed the custody case upon unstated grounds. The Plaintiff appealed from that decision.

The Court of Appeals concluded that the trial court had erred in concluding that defendant had not acted inconsistently with her paramount parental status, but had correctly determined that it was in the best interest of the child to have visitation with plaintiff. The Court of Appeals reversed the dismissal of the plaintiff’s custody claim and remanded the case so the trial court could order a custodial schedule, including visitation with plaintiff and consistent with the best interest of the child.

Alimony:

The North Carolina Legislature has set out statutes regarding how and when postseparation support and alimony are determined. Section 50-16.1A contains the definitions regarding both of those claims. Section 50-16.2A contains information regarding postseparataion support and Section 50-16.3A contains information regarding alimony.

Romulus v Romulus; (Alimony; Illicit sexual behavior); Filed: 20 September 2011, NO. COA10-1453, from a New Hanover County decision.

The trial court entered an order denying plaintiff’s claims for alimony and attorney fees. Plaintiff appealed the order. Plaintiff’s appeal raised issues regarding marital misconduct as a bar to alimony. The Court of Appeals affirmed the trial court’s conclusion that Plaintiff is barred from alimony by her uncondoned “illicit sexual behavior” during the marriage, despite the defendant having physically abused the plaintiff and their children. Even one fleeting incident of “illicit sexual behavior” by a dependent spouse automatically bars an alimony award, even if the supporting spouse has committed serious, criminal, and physical abuse, against the spouse and children during the marriage.

Equitable Distribution:

The North Carolina Legislature has set out statutes regarding how and when property distribution is determined. Section 50-20 contains information regarding the distribution of marital and divisible property. Section 50-20.1 contains information regarding pension and retirement benefits. Section 50-21 contains information regarding the procedure for equitable distribution of property and possible sanctions for purposeful and prejudicial delay.

Porter v. Porter; (Equitable Distribution; Separation Agreement); Filed 20 December 2011, NC. COA11-899, from a Brunswick County decision.

Husband and Wife married in April 1968 and separated in March 1988. At the time they separated in 1988, the parties entered into a Separation Agreement and Property Settlement resolving the matters between them. The parties then reconciled and stayed together as husband and wife until June 2005 when they separated again. In 2007 the Husband filed a Complaint for Absolute Divorce based on one-year of separation; the Wife filed a Counter-Claim for Equitable Distribution. The Husband’s defense was that the Separation Agreement and Property Settlement resolved their property matters and included a provision regarding what would occur if the parties reconciled; “…settlement of property rights shall . . . continue in full force and effect without abatement of any term or provision thereof.” The Trial Court granted the Husband’s claim for Absolute Divorce and reserved the Equitable Distribution matter for further hearing. At the Equitable Distribution trial, the Trial Court did not accept the Husband’s defense and the Wife was granted an award of $706,207.33. The Husband appealed that order.

The Court of Appeals decided that the trial court erred in proceeding with the Wife’s claim for Equitable Distribution because the parties had entered into a Separation Agreement and Property Settlement which provided that the Agreement and the distribution contained therein would remain even if the parties reconciled.

Romulus v Romulus; (Equitable distribution; Marital gift presumption); Filed: 20 September 2011, NO. COA10-1453, from a New Hanover County decision.

The trial court entered an order addressing equitable distribution. The Defendant appealed from the order regarding equitable distribution. Defendant’s appeal raised issues regarding classification of divisible and separate property. The Court of Appeals sent the matter back to the trial court for additional findings of fact and conclusions of law regarding a specific piece of property, but otherwise affirmed the order of the trial court.

Barton v Barton, (Equitable distribution; arbitration); Filed: 6 September 2011, NO. COA10-1160, from a Wake County decision.

On 4 September 2006, the parties separated. On 28 December 2007, plaintiff filed a complaint seeking equitable distribution, and, defendant filed an amended answer and counterclaims for child custody, equitable distribution, and attorney fees. The parties entered into a Consent Order for Child Custody and Child Support, and, on 17 July 2008, the parties entered into a consent order for arbitration on the remaining issues. The arbitration was to be conducted pursuant to the Family Law Arbitration Act, N.C. Gen. Stat. ‘ 50-40 et seq. preserved their right to appeal errors of law. The arbitration was held beginning 20 November 2008, and by the terms of the consent order, the arbitrator was chosen by the parties. Both parties were present, represented by counsel and were permitted to testify, as well as, present exhibits. On 24 April 2009, the arbitrator signed the Arbitration Decision Award. On 28 April 2009, plaintiff filed a motion to confirm the arbitration award in the Wake County District Court. Defendant filed a motion to vacate or modify the award based on what defendant believed to be “evident partiality by the arbitrator” and “evident miscalculation of figures[.]” On 10 May 2010, following a 27 October 2009 hearing on the parties’ motions, the District Court denied defendant’s motion, confirmed the Arbitration Decision Award, and incorporated it into its order. Defendant appealed that order. On appeal, defendant argued the trial court erred (I) in adopting the arbitration award and (II) in confirming the arbitration award.

Defendant argued that the trial court erred in adopting the arbitration decision award because of errors by the arbitrator. The Court of Appeals reversed a portion of the order and remand this matter to the Wake County District Court for modification of two portions of the court‟s order, but did not overturn the entire order.

Separation Agreements:

The North Carolina Legislature has set out the law regarding how, why and when a married couple can enter into a contract regarding their marital rights and marital estates in the event they separate. Sections 52-10 and 52-10.1 govern when and how parties can enter into these contracts.

Searcy v Searcy; (Separation agreement, constructive fraud, summary judgment, amendment of pleadings); Filed: 20 September 2011, NO. COA11-11, from a Carteret County decision.

Barbara R. Searcy (“Plaintiff”) appealed the order granting Gregory Blake Searcy’s (“Defendant”) motion for summary judgment on the issue of whether their separation agreement was valid and enforceable. On 10 June 2005, the parties executed a separation agreement before a notary public, purporting to equitably divide the marital property. On 13 June 2008, Plaintiff filed a complaint alleging, among other things, breach of fiduciary duty, constructive fraud, punitive damages, and statutory damages. Plaintiff claimed that Defendant and the attorney perpetrated fraud in the execution of deeds transferring property. Plaintiff’s complaint prayed that the court set aside the conveyances of property from Plaintiff to Defendant, that the court determine Plaintiff had valid claims for equitable distribution, alimony, and postseparation support, and that Defendant and the attorney be held liable for an award of punitive and treble damages to Plaintiff. The complaint also alleged that Defendant had not paid the distributive award per the terms of their Agreement and that the Defendant was trying to reclassify the payments as support. On 1 July 2008, Defendants filed an answer and counterclaim asserting that the separation agreement was a bar to recovery. Defendant’s answer contained a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).

The Court of Appeal had to determine whether a genuine issue of material fact exists regarding Plaintiff’s allegations that Defendant committed constructive fraud when the parties were in a fiduciary relationship. The Court of Appeals concluded that the trial court erred by entering summary judgment in favor of Defendant.

Divorce:

The North Carolina Legislature has set out the law regarding how, why and when a married couple can get divorced from each other. Section 50-6 governs parties being eligible for divorce based on a one year separation.

Mussa v. Palmer-Mussa; (bigamy and annulment) ; Filed December 6, 2011, NO. COA11-209, from a Wake County decisions.

Husband and Wife were married in November 1997 and separated in February 2009. During their marriage, the parties had three children. Earlier in 1997, the Wife had become married to another man in an Islamic religious marriage ceremony performed by a construction worker. The Wife later performed the Islamic divorce ceremony from this man, returned her dowry and declared herself divorced. Wife believes she was divorced from his man before getting engaged and married to Mr. Mussa.

Wife and Husband lived together as husband and wife for twelve years, purchased property together, raised their children together, and filed taxes together. In 2008, Wife filed a complaint for divorce from bed and board and was awarded child support, postseparation support and attorney’s fees. In 2009, Husband filed a Complaint for an annulment based on bigamy. The Court of Appeals determined that Wife and Husband were not actually married because Wife was technically still married to her first husband and therefore the second marriage, to Mr. Mussa was void.

Shaner v Shaner; (lack of personal jurisdiction; minimum contacts); Filed: 18 October 2011, NO. COA11-345, from an Iredell County decision.

Mrs. Shaner’s original Complaint for postseparation support, alimony, absolute divorce, equitable distribution, interim allocation of marital property, and attorney’s fees was dismissed for improper service on the her Husband. The parties had alternated living in New York and North Carolina, had been married for over forty years prior to their separation and the Husband was living in New York when the Wife filed her Complaint. On 9 April 2010, Plaintiff filed a new complaint seeking the same relief. On 18 August 2010, Defendant again filed a motion to dismiss for lack of personal jurisdiction, this time arguing that he lacked sufficient minimum contacts with North Carolina under the relevant long-arm statute. On 26 October 2010, the trial court denied the motion, concluding that the court had personal jurisdiction over Defendant. The Defendant appealed that decision.

The Court of Appeals determined that the Defendant could not reasonably anticipate being brought into court on the basis of his limited contacts with North Carolina and the trial court’s exercise of personal jurisdiction over Defendant would violate his due process rights and the Court of Appeals reversed the trial court’s decision.

Disclaimer and for more information:

These Court opinions are just a small sample of the many opinions which have been issued by the Court of Appeals and the Supreme Court. These opinions are published throughout the year and are available at the Courts’ Opinion page and can be researched using keywords. The North Carolina General Assembly’s page containing the North Carolina General Statutes is here.

This website contains general information about common family law matters in North Carolina. However, please remember that every divorce or family law case is different. Websites are no substitute for genuine legal advice from an attorney and the information here may not apply to your specific case. This page is just for information purposes, is not legal advice and should not be used as a substitute for legal advice. The information contained on this site is provided as a public service for informational purposes only and is not intended to be a comprehensive statement of the law. The reader is advised to check for changes to current law and to consult with a qualified attorney on any legal issue before taking action of any kind. The information presented on this site should not be construed to be formal legal advice or to create or imply the formation of a lawyer-client relationship between the reader and this firm.

The information contained on this site is provided as a public service for informational purposes only and is not intended to be a comprehensive statement of the law. The reader is advised to check for changes to current law and to consult with a qualified attorney on any legal issue before taking action of any kind. The information presented on this site should not be construed to be formal legal advice or to create or imply the formation of a lawyer-client relationship between the reader and this firm.

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