Articles Posted in Appellate Law

Published on:

By Sade Knox, Intern, Woodruff Family Law Group

King v. Giannini-King, 784 S.E.2d 237 (N.C. Ct. App. 2016).

Facts: In October 2001, Plaintiff (father) and Defendant (mother) were married and then separated, about seven years later, in early June 2008. Two minor children were born to the parties’ marriage. After the separation, Defendant relocated with the minor children. Subsequently, to Defendant’s relocation, Plaintiff brought an action for divorce from bed and board, child custody, and equitable distribution. Defendant filed a motion to dismiss, a motion to strike, in addition to a counterclaim for custody, child support, alimony, etc.

The trial court initially granted both parties temporary joint legal and physical custody of the minor children. The trial court, nearly a year later, entered a custody order, granting Defendant permanent legal and physical custody of the minor children, and permitted Defendant’s relocation of herself and the minor children to Wilmington, N.C.

Plaintiff was granted visitation rights and relocated to Southport, N.C., where the parties began to modify their custody schedule. Plaintiff later remarried and returned to Person County. Soon after, Plaintiff filed motions alleging a substantial change in circumstance, which resulted in the trial court transferring primary physical custody of the minor children to Plaintiff, temporarily, and allowed Plaintiff to relocate the minor children to Person County.

Defendant filed a motion asking for a new trial, or set aside the temporary order, shortly thereafter, which the trial court denied.  Finally, in mid-December 2014, the court entered a permanent order that granted both parties joint legal and physical custody of the minor children. Defendant appealed arguing the trial court had erred in their custody orders.

Issue: Whether Plaintiff’s argument concerning the temporary custody order was appropriate for appellate review. Was there enough evidence to support a substantial change in circumstance?

Answer to Issue: No. Yes. Continue reading →

Published on:

By Sade Knox, Intern, Woodruff Family Law Group

Chafin v. Chafin, 791 S.E.2d 693 (N.C. Ct. App. 2016)

Facts: In late 1988, Plaintiff and Defendant entered into a marriage that lasted about twenty years before the parties separated in June of 2008. During the years of the marriage, Defendant was an owner of a close to non-profiting auto-sales company in North Carolina. The company operated during the marriage up until the date of separation between the parties, which was when the company had dissolved, in 2008. That following year, Plaintiff filed a complaint seeking equitable distribution of the marital and divisible property and provided inventory affidavits listing the assets of the marital home shared by the parties and the company that Defendant owned. The company’s assets mainly included the bank accounts, vehicle inventory, and Cash on Hand. Defendant failed to follow the trial court’s order to serve his equitable distribution inventory affidavit but, later served an affidavit in response to the proposed pretrial order, objecting to Plaintiff’s classification of the company’s assets.

Because of the evidentiary support provided by Plaintiff, the trial court found that the assets in question were marital property and awarded Plaintiff a lump sum that Defendant was required to pay in monthly payments. Though Defendant argued otherwise, the court found that due to Defendant’s income and assets from his employment, he was capable of distributing award to Plaintiff. Defendant went on to file four motions that were denied, but eventually, the court allowed Defendant’s motion to preserve the record in which evidence was offered to show that not all vehicles listed on the pretrial order were on the auto company’s lot on the date of the parties’ separation. Defendant appeals the trial court’s other findings.

Issue: Whether all the mentioned assets of the auto company and the shared home were marital and divisible property and correctly stated.

Answer to Issue: Yes.

Summary of Rationale: All personal and real property acquired by either spouse, during the marriage up until the date of separation is marital property. Defendant, owner of the auto sale company, deemed the company as personal property and the shared home was real property, both of which were acquired by the Defendant during the period of the parties’ marriage, classifying both the company’s assets and the home as marital property.

Continue reading →

Published on:

By Sade Knox, Intern, Woodruff Family Law Group

Kelley v. Kelley, T.C. Memo. 2017-798, 2017 WL 1251018

Facts: Husband and wife were married in 1982. They later entered into a Separation and Property Settlement Agreement upon their separation in 1994 (the “1994 agreement”). The two later divorced in 1999. The 1994 agreement resolved several issues between the two such as child support, alimony, and equitable distribution, but most importantly, the agreement contained a “Modification and Waiver” clause. In 2003, approximately nine years after the parties separated and four years after their divorce, the parties allegedly signed a document titled, “Amendment to Settlement Agreement.”

The ex-wife, approximately eleven years after the parties entered into the 2003 Amendment, filed suit against ex-husband alleging he had breached the 2003 Amendment. Ex-husband responded by filing a motion for summary judgment, which the trial court denied. Ex-husband appeals to the Court of Appeals of North Carolina.

Issue: Whether the ex-husband breached the 2003 Amendment.

Answer to Issue: No.

Summary of Rationale: Within the 1994 agreement, the “Modification and Waiver” clause explained that any modification or waiver of the agreement shall be consistent with the original formality of the agreement and reduced to a writing. In addition to being reduced to a writing, modifications also needed to be acknowledged by both parties before a certifying officer.

Continue reading →