Articles Posted in Lawyer to Lawyer

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Becker Williams, F. Supp. 3d     , 2016 WL 878492 (W.D. Wash. 2016)

Facts: Husband and wife were married in In 2002, the husband designated the wife as survivor beneficiary of his retirement plans with Xerox.

Husband and wife were divorced in 2006. In 2007, the employer received several telephone calls from a person claiming to be the husband, who said that he wanted to change the beneficiary to his son by a prior marriage. In response to these calls, the employer sent the husband three different copies of the written form necessary to complete the change. The first two forms were not returned; the third form was returned unsigned and undated.

When the husband died, both wife and son asserted claims to the survivor benefits, and the employer interpleaded the benefits into federal court. The trial court declined to allow summary judgment, and the Ninth Circuit affirmed, finding that a telephonic change of beneficiary was potentially enforceable, even without a writing, and that a it was a material issue of fact as to whether such a designation was actually made. Becker v. Williams, 777 F.3d 1035, 1042 (9th Cir. 2015). Upon remand, the district court held a trial and addressed the merits.

Issue: Who was entitled to the husband’s survivor benefits?

Answer to Issue: The wife

Summary of Rationale: Under Washington state law, to change a survivor beneficiary, an employee must substantially conform with the terms of the policy or “[S]ubstantial compliance with the terms of the policy means that the insured has not only manifested an intent to change beneficiaries, but has done everything which was reasonably possible to make that change.”   2016 WL 878492, at *2 (quoting Allen v. Abrahamson, 12 Wash. App. 103, 105, 529 P.2d 469, 470 (1974)).

The son did not meet his burden of proving substantial compliance. First, there was no evidence that the person who called to make the change of beneficiary was actually the husband. Second, the husband’s failure to return the first two forms and his failure to sign and date the third form suggest that his intention to change the beneficiary was not complete. In this regard, the court noted that the forms themselves stated that the change of beneficiary was not valid until the form was signed and returned. “[T]he failure to complete simple, mundane tasks undermines Asa Sr.’s alleged unequivocal desire to change his beneficiary.” Id. at *3.

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By: Jennifer A. Crissman, Attorney

As an attorney practicing in family law in the Piedmont, and a mother of two young children, my world can feel very hectic. It is easy to give in to the stressors of the moment, to be overwhelmed and to feel like you do not have control. Whether caring for my children, listening to others discuss their parenting struggles or helping clients prepare for court, a useful activity I have found to manage this stress is practicing mindfulness.

Mindfulness can simply be described as being fully aware of your present surroundings, and how it affects your thoughts, feelings, and body. The practice of mindfulness is focusing on the moment you are in, and regaining control. While this is a simple concept, using this technique takes some practice. While in the courtroom or on the witness stand clients will often become agitated, frustrated or emotional over what is transpiring around them. This happens in parenting situations as well. While these emotions are valid, they usually don’t help achieve our goals. While there is a multitude of online resources, below are basic steps for practicing mindfulness.

1) Take a deep breath. While it sounds trivial, a deep breath gets oxygen to your brain, helps to slow an elevated heart rate, and brings your focus to your body. It is a good way to start an inventory of your current physical and emotional state.

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Prior to the beginning of each session of court, a calendar call takes place.  Family law attorneys across the Triad are familiar with this process in which hearing dates are selected prior to an upcoming session of court.  Though it may seem simple to select a date for your hearing and report it to the court, there are several factors that must be taken into account prior to selecting a hearing date.

The first consideration for calendar call is what issue has been calendared for hearing during the session.  Is it one that will require a trial, such as custody or equitable distribution, or is it only a motion that needs to be heard, such as a motion for summary judgment or motion to compel? You must be clear on exactly what it is that has been noticed for hearing before selecting a hearing date.

A second factor that should be considered prior to calendar call is whether the issue is ready to be heard.  Before a hearing can occur, the opposing party must be served with notice of the issue that you are asking the court to hear.  Without proper notice to the opposing party, the court will not be willing to hear your case, and you will be forced to continue your hearing to another session of court.  If you have only recently filed the complaint with the claim you want heard, you should also consider whether the opposing party has had time to respond to your complaint.  If the opposing party’s time to answer has not expired, this could also cause the hearing on your claim to be delayed.

The status of the case as a whole is also important. There are some claims that should be heard before, or at the same time as, other claims.  For instance, since the custody arrangement will affect the calculation of child support, it is often most efficient to hear child support either at the same time as custody, or after a custody order has been entered in order to prevent duplicative hearings.

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            Equitable Distribution, in a nutshell, is giving each party to a marriage what they are entitled regarding property acquired during the marriage.  As one of the pillars of many divorce proceedings, it is commonly the most complex aspects, requiring extensive research into the lives of individuals going through a divorce.  In some instances, the parties to a divorce can amicably agree as to how the property acquired during the marriage shall be distributed, and in some instances where parties fail to agree, distribution may be simple due to the nature, amount, and availability of information regarding marital property. In other instances, the parties cannot agree, and the marital assets are numerous, complex, and difficult to find; this situation can create a very tall task for attorneys in properly representing client interests.

A recent North Carolina case, Uli v. Uli (N.C. App., 2017), breaks down equitable distribution in an effort to comprehensively explain how North Carolina courts are to handle these types of claims.  North Carolina courts conduct a three-step analysis to determine what is marital property, what is divisible property, and how to provide for an equitable distribution between the parties.  First, the court must identify and classify the property as marital or separate based upon evidence presented regarding the nature of the asset.  Next, the court must determine the net value of the marital property as of the date of separation. Lastly, the court must distribute the marital property equitably. Smith v. Smith, 433 S.E.2d 196, 202-203 (1993).

The primary issue presented in Uli is the classification of real property in dispute throughout the proceedings.  Classifying property in an equitable distribution case is no walk in the park.  Courts must determine whether property is marital or separate.  Marital property is “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of separation of the parties, and presently owned, except property determined to be separate property or divisible property…”  Separate property is “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage…” N.C. Gen. Stat. §50-20(b)(2015).  “Acquired” is the key term in both definitions. North Carolina courts have adopted a “dynamic” interpretation of the term “acquired” as the courts recognized that acquisition is an on-going process of making payment for a property or contributing to the marital estate, instead of being fixed on the date that legal title to the property is obtained. Wade v. Wade, 330 S.E.2d 616 (1985). With this interpretation, the court realizes that property may have a dual nature consisting of both “separate” and “marital” qualities.

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The two big classifications of property in all equitable distribution cases are “marital” and “separate” property.  These are the ones the get all the attention and are subject to some of the most intense scrutiny and debate; however, there is a third area of property that is equally as important and can at times, prove to be a valuable player equitable distribution cases. Yes, I am talking about “divisible property!”  Continue reading →

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A great aspect of living in the triad area is the rich history of successful businesses that put down roots in the community and prospered over the years.  Greensboro is home to very familiar brands such as Wrangler and Volvo, and right down the road is High Point, which is known for being one of the largest home furnishing manufacturing areas in the country.  Business and industry have been drawn to the area for years, and a growing population provides ample opportunity for entrepreneurs of all sizes to flourish.  Some of the area’s most vital businesses are ones defined as “closely-held,” or more commonly referred to as, “Mom and Pop” businesses.  Unfortunately, sometimes, Mom and Pop do not see eye-to-eye, which may jeopardize the future of these businesses. Continue reading →

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When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child.  In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody.  Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents.  North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children.  These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children.  Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.

When it comes to the law, courts have a duty to put the best interest of the children above all others.  Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children.  This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents.  The law provides for a vague and widely discretionary test for resolving custody disputes of this kind.  While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.”  Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children.  This behavior must have a negative impact on the child or constitute a substantial risk of such impact.

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By: Leesa M. Poag, Attorney, Woodruff Family Law Group

In a typical child custody case, the mother and father of a child are seeking the intervention of the court to settle their dispute over who should be granted custody of their child.  Though this is the situation most often facing family law attorneys throughout the Triad, the cases become more complex when one of the parties seeking custody of a child is not a biological parent of that child.

This is the situation that the North Carolina Supreme Court had to address in 2003 in the case of Owenby v. Young.  In 1989, Fred and Priscilla Young were married, and two children were born thereafter.  Four years after marrying, Fred and Priscilla divorced.  Upon their separation, the former spouses executed a separation agreement that granted Ms. Young primary custody of the minor children, and secondary custody to Mr. Young.

For seven years, the parties acted and shared custody of the children under this agreement.  However, in April of 2000, tragedy struck when Ms. Young was killed in a plane crash.  At this time, the minor children were 10 and 11 years old.  Following Ms. Young’s death, Mr. Young moved the children in with him and began to exercise sole custody of the children.

But this arrangement would not last long.  After the children had lived with their father for a few weeks, Ms. Young’s mother, Priscilla Owenby, filed a complaint with the court seeking custody of the children on both a permanent and ex parte basis.  An order was entered by the court that same day granting temporary custody of the children to Ms. Owenby.  Mr. Young then filed an answer to Ms. Owenby’s complaint and a counterclaim for custody of the children.  The case came on for hearing in the trial court in December of 2000.

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By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            As contentious custody cases in the Piedmont progress, it is likely that a parent may be called “unfit.” In a legal context, this word has a specific meaning, and drastic consequences should the court find a parent unfit. In this second installment on standing to apply for custody, we will examine how a parent’s rights are affected when there is an allegation of “unfitness.”

The case of Raynor v. Odom is instructive when trying to determine whether a parent is “unfit.” Raynor v. Odom, 478 S.E.2d 655 (N.C. App. 1996). Raynor was decided several years after Petersen and discusses what analysis the Court should undertake when determining unfitness. The Raynor court held that although there is no specific list of findings that determines a parent is unfit, the court must look at the totality of the circumstances in determining whether a parent can care for the needs of their child.

The minor child in the Raynor case was removed from Plaintiff Mother’s care and temporarily placed with Intervenor Foster. When Foster gained temporary custody, she took the minor child to have a pre-school assessment. At the assessment, it was discovered that the child had an articulation disorder, and was not as advanced or matured as many of the child’s contemporaries.  This fact was supported by the preschool screening report, an articulation evaluation, and a language therapy initial treatment plan. The trial court found that the child’s lack of development was a result of Plaintiff Mother not providing motivation, opportunity, or encouragement for the child’s normal and healthy development.

The trial court went on to catalog facts that demonstrated Plaintiff Mother’s unfitness to care for her child, including:

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By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            If you have been involved with a highly contentious custody case in the Triad, you know that family members will start coming out of the woodwork to ask for custody of the minor children. This phenomenon is even more prevalent when the parents are not adequately caring for their children. This multi-part series will examine who can have standing to apply for custody of the minor children under North Carolina law, and the analysis the Court must follow. In part one of our series, we will examine the Constitutional Rights of the biological parents, which is the bedrock for all subsequent analysis by the Court.

The seminal North Carolina case on parents’ constitutional rights is Petersen v. Rogers, 445 S.E.2d 901 (N.C. 1994). At the outset, the Petersen court recognizes that the right to conceive and raise one’s children is an essential basic civil right which is far more precious than property rights. The Court then discusses in depth both the U.S. Supreme Court’s decisions regarding parental rights to custody, as well as North Carolina case law.

With regard to U.S. Supreme Court decisions, the Petersen Court notes that the integrity of the family unit has been recognized as a fundamental right protected by the U.S. Constitution. The Supreme Court has held “It is cardinal with us that the custody, care and nurture of the child reside first in the parents…”. Prince v. Massachusetts, 321 U.S. 158 (1944). This right has been protected both by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, as well as under the Ninth Amendment by the U.S. Supreme Court.

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