Got Served?

Service of process is a thankless task. Ever received a card from a client grateful for your masterful perfection of service? Never happens. But make a mis-step—and you will hear from the client. Or end up on the news—and not in a good way. A case based on bad service of process is like a city built on a volcano. Sooner or later you have to vacate. No service—no jurisdiction. It’s a void order. You may recall Hamilton v. Johnson, a recent opinion by the North Carolina Court of Appeal. The Court vacated a cluster of orders from an…

Johnson v. Johnson—New Pitfalls in Pension Valuations?

If any of your cases involve defined benefit plans, you are probably relying on Bishop v. Bishop, 440 S.E.2d 591 (1994)—the North Carolina Court of Appeals’ classic. Bishop has been the divorce practitioners’ staple for almost twenty years. Bishop‘s five step approach has never been officially overruled—or received any negative treatment for that matter. But do not let the Westlaw’s Shepard lull you into a false sense of security. You will want to read the last week’s Court of Appeal’s opinion in Johnson v. Johnson. Although the Johnson Court does not explicitly distinguish Bishop, and even appears to follow Bishop…

The Right To Make an Honest Living Is a Substantial Right

I wrote recently about the new law that made family law practitioners’ life much easier because appeals from just about any divorce-related claim are no longer interlocutory. That is all well and good for divorce practitioners, but it does not resolve the matter for every case. Which interlocutory order can be appealed and which can not be appealed is almost never an easy decision. The two-part test itself is easy: Whether a substantial right is affected by the challenged order and whether this substantial right might be lost, prejudiced, or inadequately preserved in the absence of an immediate appeal. The…

Mr. and Mrs. Smith Travel Out of State

To me, applying certain parts of UCCJEA is a little like the LSAT games section. If Mom and Dad entered into an incorporated agreement for child custody in Virginia, then Mom and children moved to North Carolina, then Dad followed to North Carolina, but did not like it in North Carolina and moved to Texas, will the North Carolina court have jurisdiction to modify the Virginia child custody order. What if Dad filed his motion to modify child custody in North Carolina court, it was heard in North Carolina, but then Mom and child left North Carolina and moved…

Judge Stroud Clarifies the Meaning of ‘Clarification.’

You cannot ask a trial court to modify its existing orders ‘just because.’ That goes for any order, including child custody orders. Seems like an obvious point, but the Court of Appeals last month had to provide a refresher. In Davis v. Davis, the Court vacated portions of a child custody order that modified an existing order under the guise of “clarification.” Divorce practitioners and trial courts get so comfortable with the practice of changing child custody orders to fit changes in the child’s circumstances that they sometimes forget the core—the trial court has to actually find those substantial…

Not Interlocutory Anymore: The New Law Allows Each Claim In Divorce To Be Appealed Separately

  Let’s say your client is bitterly unhappy with the result of her equitable distribution hearing. You re-read the trial transcript and confirm to yourself what you knew all along: you have a good appeal. You advise your client accordingly and brace for the inevitable: she wants to appeal now. Right away. Yesterday, if possible. But her alimony claim is still pending. Now what? In the olden days, you were stuck. You could have yourself an immediate appeal of equitable distribution order. Or you could have yourself an alimony trial. But you could not have both, because any unresolved…

‘Best Efforts’ in Contracts—A Subjective Standard?

Barker v. Barker is a case that has significance far beyond family law. Joseph Barker agreed to pay for his daughter’s college bills, so long as she “diligently applied” herself in school. When Joseph received Holly’s college reports, he learned that Holly (a) had finished her Fall 2011 semester with a 1.000 GPA, (b) was on academic probation for the first three semesters of school; and (c) was enrolled in 16.5 hours but earned only 7.5 hours of credit. In the Spring 2011 semester, Holly improved her GPA for a cumulative GPA of 2.000, narrowly escaping academic probation. Not surprisingly,…

Diamonds Are Forever; Valid Purge—Not So Much

There now is a fascinating TV Series about a man whose life lasts forever, which is aptly called Forever. It’s a great entertainment. But I digress. Point here is, valid contempt purges do not. Contempt purge simply cannot last forever. In Wellons v. White, the Court of Appeals reminded again that a civil contempt order must have a purge that is not “impermissibly vague.” Just as importantly, the purge must be finite, meaning that there should be an end to the punishment. (If you really need something that lasts forever, consider a permanent injunction or diamonds.) The sentiment “Go think…

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