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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

               Timing, as they say, is everything, and if you are appealing an Order in North Carolina, this is particularly true. Slaughter v. Slaughter, No. COA16-1153 was decided by the North Carolina Court of Appeals on July 18, 2017. While there were multiple issues on appeal, the issue that sticks out is the timing and issues allowed on cross-appeal.

Cross-appeals are not a rarity. However, the Court had an issue of first impression on whether a cross-appeal should have been dismissed by the trial court. In Slaughter v. Slaughter, the trial court entered an Order Equitable Distribution on March 31, 2016, and Orders on Child Support, and Alimony on April 1, 2016. The husband filed a Notice of Appeal from the Alimony and Equitable Distribution Orders on April 25, 2016, within the thirty-day window for filing.

Wife filed a Notice of cross-appeal on May 3, 2016, from the Child Support Order and the Equitable Distribution Order. While Wife was within the ten-day window for filing a cross-appeal, Husband filed a Motion to Dismiss her cross-appeal regarding the Child Support Order. Husband argued that the ten-day window for filing a cross-appeal under NC Rule of Appellate Procedure 3(c) should not apply as Husband did not appeal the child support order. Husband’s Motion to Dismiss was denied by the trial court, which Husband appealed.

Husband’s argument on Appeal is that firstly, Wife was outside of the thirty-day window to appeal the Child Custody Order, and secondly, that since Husband had not appealed from the child custody order in his timely appeal, Wife should not be allowed to cross-appeal the Child Support Order. It was a matter of first impression if a Notice of Appeal is limited to only the Order specifically designated in the Notice, where a single proceeding has resulted in multiple Orders. It was also a matter of first impression if a cross-appeal is similarly limited to only the Order specified in the original Notice.

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By: Ben N. Neece, Attorney, Woodruff Family Law Group

            At the heart of many family law related disputes lie arguably the most difficult decisions regarding the children and their futures.  At times it may seem unlikely that individuals in the midst of a divorce will ever agree on anything; fortunately, ensuring that any children involved receive a quality education is usually a top priority for everyone.  Setting aside differences for what is in the children’s best interest saves not only time but may also preserve important financial resources that may be reallocated to ensuring the children’s futures are preserved. “Agreements” as they are so appropriately called, may avoid costly litigation procedures, and provide the parents with the opportunity to freely discuss, negotiate, and formulate what they mutually believe to be a plan that will best serve the interests of their children.

The freedom to contract is an important legal principle and when utilized correctly, can be both an effective and efficient means of resolving issues. A recent North Carolina Court of Appeals case, New v. New, discusses the implications and consequences where parents utilize this right to resolve how to care for their child as they confront arguably the biggest step of any child’s life: attending college. In New, the parties agreed to pay off their children’s “ordinary and necessary” college expenses. When it came time to pay up, “ordinary and necessary” became a point of contention.  Language in any agreement is crucial, and given the general stance that parties are free to negotiate how they see fit, it is imperative that any ambiguities are either understood and accepted or limited and clarified during formation.  Here, the parties initially worked together, saving time and money in coming to an agreement, only to end up right back in a courtroom, litigating a language based issue that could have been potentially resolved at negotiations.

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Dear Carolyn,

My daughter just graduated from high school, and she is college bound.  Her father and I divorced three years ago.  Her father paid child support, but I understand child support is ending now as she is already 18.  I thought her father would surely pay (or at least help) with college, and he told me last night that he was not helping with college.  What can I do?  Our divorce agreement says NOTHING about college.

~College Help Needed

Dear College Help Needed:

This is a most difficult situation for you and for your daughter.  Unfortunately, in this State, parents have no legal obligation for support after the child is 18 and out of high school.  Other States are different.  For example, in Alabama, the divorce court can order college if the child’s lifestyle and economic status would indicate that the parent would have paid for college in an intact family.  Also, in Massachusetts, as another example, child support continues to age 21.

The only way a parent can be bound to pay for college in a private agreement.  At the time of your divorce settlement, the father and you could have entered into a private agreement, signed and notarized, that describes how the child’s college costs will be handled.  If you had such an agreement, the agreement would be enforceable by you.  Frequently, college is difficult to negotiate because Father’s feel that the child will “snub her nose” at the father if college is guaranteed by a contract.  You do not say anything about the daughter’s relationship with the father, and whether it is a close, loving relationship.

If the child’s financial aid application requires the father’s income, sometimes it is helpful to have a letter to accompany the financial aid application stating that the father will not participate in college expenses.  I have written several letters like this in the past for clients who have no expectation from a parent of college participation.

Good luck with college for your daughter, and congratulations on her high school graduation. Continue reading →

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Dear Carolyn:

Now that summer is almost over and school will be starting back, I am reflecting on the summer trip with my two children, who are 9 and 11.  Their mother and I are divorced, and I am trying to make summer memories with them that will last a lifetime.  This summer we ventured to the West Coast to see the sites.  While in Flagstaff, Arizona, we saw advertisements for a place called “Bullets and Burgers” in Arizona. That reminded me of the headlines about a nine-year-old girl from New Jersey, who killed her Uzi instructor in a place like this.   I am just curious if this could happen in North Carolina.  What are the North Carolina laws on this?  Do we have places like “Bullets and Burgers” in North Carolina?  My ex is dating a guy who owns a lot of guns.  Could he take my children to such a place?

~Curious and Concerned

Dear Curious and Concerned:

           You are referring to a story of a 9-year-old girl from New Jersey who was on a family vacation in Arizona. This story received lots of attention in the legal arena and in legal publications.  Her family took her to the place called “Bullets and Burgers.”  She was assigned an instructor and shot a single shot weapon without any trouble.  The instructor then let her shoot an Uzi automatic weapon that shoots 600 rounds per minute. She lost control of the Uzi, shooting and killing her instructor, inadvertently.  No charges were filed and the accident was ruled to be an “industrial accident.”             Continue reading →

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Dear Carolyn,

Visitation exchanges are almost always awful for my eight-year-old when the exchange is not at school.  I am a Father with fifty-percent custody.  I have Mondays and Tuesdays overnight.  My ex has Wednesdays and Thursdays overnight. We alternate weekends.

When school is out, we do the exchange at a local fast food restaurant.  My ex almost always brings her new boyfriend with her, and he almost always says something “smart” or derogatory toward or about me.  I have emailed my ex to stop these and I have asked her not to bring him.  My eight-year-old hears this nonsense.  What should I do?

~ Exchange Woes

Dear Exchange Woes,

           It is obvious that it is not in the best interest of your child to hear the adults around him or her bickering during visitation exchanges. Your child is part of both you and your ex, and as such, he or she probably is stressed to hear derogatory comments about his or her father. Visitation exchanges should be happy for the child preparing to spend time with the other parent.

In Randolph County, several years ago, the news reported a tragedy at a visitation exchange from which we can learn.  Mom and Dad both had someone else with them at the visitation exchange.  The two other people got into an argument at the exchange, and one of the two other people at the exchange shot the other one (non-fatal shooting).   Apparently, the child apparently witnessed this shooting.

So, what should the rules be for visitation exchanges when the parents just do not get along, or there are other troublemakers, such as your ex’s new boyfriend?

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Dear Carolyn:

I am in a custody battle with my ex-husband.  My nine-year-old wants to live with me.  Can my nine-year-old simply tell the judge this, and then we are done with this mess?  I have heard a child can talk to the judge in “chambers,” but I am not sure what this means.

Carolyn Answers….

I am sorry that you and the Father were unable to decide together as the parents what is best for your child.  But, if the parents cannot decide, a person in a black robe will make the decision on what the “best interests” of your child is.

First, and I want to say this gently to you, a nine-year-old does not have the maturity to make the decision of where he or she should live and what is in his or her “best interests,” generally. Cases of abuse and neglect are perhaps different, but you do not mention that the child is being abused or neglected by the Father. This answer assumes that there is no abuse or neglect of your child by the Father.

Second, the court does not give “final say” to anyone. The court hears the evidence and judges the credibility, maturity, and objectivity of witnesses, and then the court, in its wisdom, renders a decision. Given the age of your child, in my experience, the judge would give little weight, most likely, to the opinions of a nine-year-old on what living arrangement is best for the child. The court may even consider whether you were influencing the child against the Father, whether intentionally or unintentionally, and give the Father even more time to offset your influence.

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Dear Carolyn:

I am involved in an equitable distribution case and I have a closely-held business in the Triad, which was started by my father. He still owns the majority of the business.  Eight years ago, my father gave me twenty-five percent of the business. I separated from my husband eight months ago. What can I expect in my divorce case related to my closely held business?  How do we go about getting a appraiser to appraise the business?  Can he get any of my stock in the family business?

Carolyn Answers….

 You ask a complex, but very interesting, question.  Rest assured that he cannot get any of the actual stock in your family’s business.  The stock itself is separate property because it was given to you by your father.

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Dear Carolyn:

My wife and I have been married almost two years. Recently, and unfortunately, her grandmother passed away. Her grandmother had no immediate means to pay for funeral and burial services. The costs were paid by my wife and me on our credit card. The family has considerable land assets in Guilford County, but it is in her grandmother’s and multiple siblings’ name. My wife will inherit a portion of her grandmother’s land (split with my wife’s uncle). No one in the family has the means to buy us out, and, as is often the case, there is no reachable agreement by the family to divide the land. Is there any way to sell off some or all of what my wife is entitled to help reimburse us for the costs of the funeral and burial services?

Thanks for your helpful insight,

Jon D.

Dear Jon,

We have a solution for you!  The property can be sold to pay funeral and burial expenses, but there are several steps you must follow.

The answer assumes there was no Will, as a Will was not mentioned.

First, your spouse will need to go to the Clerk of Court, Estates Division at the Guilford County Courthouse if the grandmother died in Guilford County and open an estate file for the grandmother. If the grandmother died in another county, you need to open the estate file in that county.  Someone is going to have to qualify as the administrator of the estate.  Your wife, as a granddaughter, may apply; others may also apply, but hopefully they will not.

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Dear Carolyn:

The court has just ordered me to participate in a child custody evaluation with a local psychologist.  My children are seven and thirteen. I am a concerned Father, and the Mother has a new boyfriend that is “no good”. This new boyfriend is terrible around my children, and he is even spending the night with the Mother while the children are there. I disapprove of this. I also think the boyfriend is drinking and driving with the children in the vehicle.

What is a child custody evaluation?

Carolyn Answers….

A legitimate child custody evaluation is a complex process performed by a North Carolina licensed psychologist (PhD) under guidelines established by the American Psychological Association (APA).  The APA adopted and published Guidelines for Child Custody Evaluations in Divorce Proceedings in 1994, which were updated in 2009.

Here are the typical stages of a child custody evaluation, where there are no sexual abuse or other abuse allegations.

  1. Initial interview of each parent and general information gathering: The psychologist has an initial meeting with each parent and receives information from the parent, which includes general background, education, employment, family of origin, education, medical issues, stressors, and anything else of general relevance to the matter. Information gathering might be police reports, letters from attorneys, previous psychological evaluations, mental health records, school records, and similar information. Be sure to tell the custody evaluator about the boyfriend, the drinking, and your concerns in your first interview. The psychologist may decide to seek an interview with the boyfriend, and certainly the psychologist will gather information from the Mother and the children on this boyfriend.
  2. Test Administration to the Parents: Most typically in our area, the psychologists use the MMPI-2 for objective testing. This test is comprised of 567 true-false questions. While there is much research regarding how to interpret the results, the test remains controversial for use in child custody evaluations, so the evaluator has to be careful with regard to the use of any objective testing. Continue reading →
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Dear Carolyn:

I think my husband and I may be getting separated and divorced, and I am concerned about our 2016 tax return, which has not been filed yet. The tax return is under an extension.  My husband has a small business in Greensboro, and I have no idea if he reports all of the income in the business.   I have heard that I can be responsible if I sign the return.  He never gives me a copy.  Do you have any thoughts on this issue?  Do I have to worry?

Worried and in the Dark

Dear Worried and in the Dark:

This is always a tough decision, and the law that applies to this is called:  “Innocent Spouse Relief.”  There are some things that you need to know in making the critical decision of whether to file a joint income tax return with your spouse.

First, you need to know that you do not have to sign a joint return, but if you elect to do so, you are potentially 100 percent liable for any income taxes, interest or penalties related to the return you sign.  Yes, I said 100 percent, not 50 percent.  You see, the Internal Revenue Code holds each signer of a tax return jointly and severally liable for all taxes, interest and penalties, absent a co-signer being an innocent spouse. So, to me, signing a joint tax return is always a big decision for a person with a small business.  Contrast this with spouses who both have W-2 incomes from employment with third parties;  if the only income on the return is W-2 income, then generally it is safe to sign a joint return properly prepared.  You, however, are in the riskier situation with the small business.

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