Category: Court

Contempt of Court in North Carolina

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When someone violates a court order, the other person can file a motion asking the court to hold him or her in contempt. In family law, judges enter orders for child custody and support, alimony and marital property division, among others. Our statutes define the way a judge can require people to obey court orders, up to and including incarceration. There are two kinds of contempt, civil or criminal.

Civil Contempt

After the judge determines the order is valid and still in effect, a judge must be certain the “purpose of the order may still be served by compliance with the order.” NC Gen. Stat. §5-21(a). To enforce an order by civil contempt, someone must willfully fail to comply with the order. He or she must have the ability to comply or take reasonable measures that would enable the person to comply. For instance, if you are required to pay child support by court order but you are in a bad vehicle accident and unable to work some period of time because you were in the hospital for a month, you might be able to prove you were unable to comply with the order. That doesn’t mean the judge will cancel or reduce the child support obligation. It just means that the order is not being enforced by holding you in contempt and incarcerating you. There are other ways people can enforce orders.

Incarceration For Civil Contempt

The purpose of civil contempt is not to punish someone as is the case with criminal contempt. Instead, the purpose of incarceration is to force the person to comply with the order. If a parent owes back child support, he or she is taken into the custody of the sheriff until the payments are made. The judge must order certain release conditions called “purge conditions” because doing those things will allow the person to purge or rid himself or herself of contempt. It is said that in civil contempt, the person incarcerated holds the keys to the jail because all he or she has to do is comply with the order. The person refusing to comply with an order of the court may be initially incarcerated up to 90 days. If there is no compliance, the judge will have another hearing at the end of the 90 days. The maximum time of incarceration for civil contempt is one year. NC Gen. Stat. §5A-21(b2). Because the violator faces incarceration, the court will usually offer to appoint an attorney if the person can’t afford one.

Criminal Contempt

Instead of holding the keys to the jail, the purpose of criminal contempt is punishment. This is what people usually think of when contempt comes to mind. NC statutes list plenty examples of bad behavior, all of which must be willful and usually in the courtroom. These include interrupting court proceedings, disrespecting the judge, disobedience or interference with a court’s order or directive, refusing to answer a question on the witness stand or refusing to be sworn in (of affirmed) to testify.

Ex Parte Orders: When Will I Have My Day in Court?

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The Courts and due process rights in the United States Constitution are built upon the right of each person to a fair trial. Fundamentally, a person who is served with a lawsuit has the right to respond in writing, by testimony and by evidence offered during the trial. Both parties may exercise the right to file motions asking the court to do something, seek documents in the possession of the other party (called discovery), and have an attorney issue a subpoena compelling a witness to testify or provide evidence to the court. The law gives each person his or her day in court.

Exceptions to the General Rule

While this holds true with family law cases, there are times when there is an extreme emergency serious enough to warrant the court entering a temporary order based only on one side of the story. If you’ve been in court maybe you’ve heard the term ex parte but no one ever explained it. It is a Latin term that means something takes place based on only one side of the story. In this context, it means the court makes a ruling without the other party being present. Ex parte order (EPOs) are generally disfavored in court. The judge must weigh the seriousness of the allegations and decide whether they justify delaying the due process rights of the other party.

Judges take the facts of each individual situation into account on a case by case basis. There is no “one size fits all” approach to deciding whether an EPO is justified. For example, when a spouse or other family member attempts to cause bodily injury to the other, or intentionally causes bodily injury to him or her, the court might enter an EPO in the form of a domestic violence order. When the judge grants the EPO, it is served on the other party who must obey the order even though he or she didn’t have an opportunity to tell his or her version of what happened. But, he or she will be entitled to his or her day in court shortly.

How Does the Ex Parte Order Play Out?

If someone is served with an ex parte order, time is of the essence. An EPO is usually served with several documents, and includes notice of the date and time for the trial. People are often upset because there is a hearing date of only about ten days from the date they were served. Ironically, a short time before having a trial is meant to help the person who gets served with an EPO. The policy of the law is to give that person the opportunity to be heard in court as soon as possible. At the hearing, both sides are given the chance to tell the judge what happened and offer any evidence. For example, in a domestic violence case, the person against whom an EPO was entered might offer testimony about what happened and a photo or e-mail explaining that version of what happened. In family law cases, EPOs might be entered in child custody cases or even in certain equitable distribution cases when one party begins liquidating marital assets.

Order in the Court: The Nuts and Bolts of Court Orders

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In the world of family law, orders define rights as between spouses and former spouses, as well as between parents of children. Each state has a unique definition of a court order. This article applies only to family law cases in North Carolina.

How Do We Get Court Orders?

The first step in obtaining a court order is filing a lawsuit, which gives the court jurisdiction and the authority to sign a court order. Temporary orders are based on a short trial of only a few hours, on a date shortly after the case is filed. These hearings can be rushed and chaotic but they’re only meant to give parties some structure until the full trial takes place. Full trials give them the opportunity for the judge to hear testimony of the parties and their witnesses, and offer more thorough exhibits.

What Are the Mechanics?

After a trial, judges sometimes write their own orders. This is more likely to happen with temporary orders, such as temporary child custody. Other times, judges assign the task of writing an order to one of the attorneys. After a judge signs a written order and the clerk of court files it, it is an official order. Filing means the signed order goes to the clerk of court’s office where the clerk stamps it. The special stamp shows the date and time that the order was placed in the court file, which includes all the paperwork filed in the case.

What’s Included in a NC Court Order?

The first part of the order is called Findings of Fact, where the judge makes a legal ruling on the disputed or contested facts, such as whether a spouse committed adultery. Next, orders typically have conclusions of Law. This is the “legaleze” part of the order, where the judge says (i.e., concludes) what the law requires based on those particular facts. The actual Order is the part most people think of when they think of an order. For example, it awards custody and includes visitation schedule, sets an amount of child support or alimony, or says who keeps marital property.

Consent Orders

When a lawsuit has been filed and the parties decide to settle their case without a trial, the judge will sign what is called a Consent Order. That means the parties give the judge their consent to sign and enter the order. The reality of court can cause people to reconsider settling their cases just before a trial starts. Referred to as settling at the courthouse steps, it isn’t unusual for the consent order to be hand written with pen and paper right then and there. The handwritten order is called a Memorandum of Order. It can be typed and improved upon after the hand-written order is entered, but the handwritten order is immediately valid and enforceable once it is sign by the parties and the judge. If the parties aren’t settling at the courthouse steps, the judge might schedule a date for the parties to appear in court for 5 or 10 minutes to officially give him or her permission to sign the order without a trial. These orders are typed and finalized when signed.

Either way, the judges might ask the parties if they’ve read the order, if they understand what it requires each party to do, if they have discussed it with their attorneys, and if they are entering this order of their own free will. Another question judges ask is whether each party understands that the order is enforceable by the contempt powers of the court (as all orders are) which can include incarceration. After a few brief questions, the judge reviews and signs the order, and each party walks away with a copy of the official order.

 

Your Case & the Cutting Room Floor: Too Much of a Good Thing?

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There are all kinds of family law cases, and each one is unique. Some are straightforward and others are complex. Attorneys highlight the favorable aspects of their clients, and de-emphasize the unfavorable. Trials take on lives of their own regardless of what clients, attorneys or even judges expect. There are a lot of moving parts, especially when cases are lengthy and complex. Especially with the best cases, editing is the hardest part. Too much of a good thing can backfire when the judge is knee-deep in “good” information. Clients and attorneys don’t always agree on where to draw the line.

In the Court Room

In Pitt County family court, each side has a specific number of hours assigned to try their case. A two day trial might be distilled to 5 or 6 hours for each side, after taking into account lunch breaks and short breaks throughout the day. That might sound like a lot but it really isn’t because that includes any opening remarks, questions to witnesses, cross examination and closing argument. The court has to keep cases moving through the system, which is already tremendously over-burdened. Time is of the essence.

Trial Exhibits

Exhibits are usually documents each side admits as evidence for the judge review before deciding the outcome of the case. Depending on the type of dispute there is, exhibits might include photos of the children, copies of grade reports and medical records, text messages and e-mails between the parties, records of each party’s wages and insurance, bank and credit card statements, or tax returns. A complex case might have 30 or 40 exhibits, each being multiple pages. The judge has to review two stacks of “basic” exhibits, one for each party. Frankly, they can be rather dry and boring.

Less is More?

Like anyone else, some judges have longer attention spans than others. If it is a custody case, they don’t mind five or ten photos of the child at issue. They do mind thirty photos unless there is some specific reason. For a trial, a good attorney creates a cake, so to speak. The cake itself forms the foundation, the basics. The “goodies” are the decorations or icing on the cake. One example of goodies might be love letters written to a third party by a cheating spouse. It is usually more powerful to select four or five of the best “goodies” instead of diluting the value by heaping them on indiscriminately. These exhibits must be distinct to stand out from the rest. You might have fifty or sixty pages of e-mails where you should have ten. Your attorney has been in trials with a certain judge and knows his or her preferences. Take your attorney’s advice and get the best bang for your buck, and keep the judge focused on the priorities that matter to you.

Forgive and Forget: Condonation in North Carolina

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Judges have a good deal of leeway in deciding what to do about marital fault and defenses when they are proven in court. Traditional sex roles are rapidly changing in some ways but not in others, and judges react differently to the behavior that constitutes marital fault. Some think fault is very important, but others do not. Marital fault relates to alimony, not equitable distribution, which is the division of marital property.

What Are the Marital Fault Grounds?

A spouse commits marital fault if he or she abandons the family, commits adultery, “maliciously turns the other out of doors” or “by cruel or barbarous treatment endangers the life of the other.” If a spouse “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome” that is also marital fault. The last ground of marital fault, known as indignities, is a catchall for bad behavior generally. It occurs when a spouse “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” NC Gen. Stat. §50-7.

Consequences of Marital Fault

Marital fault is not a requirement for alimony. But if someone commits marital fault, the judge can financially penalize the person receiving or paying support. In cases of adultery, the financially-dependent spouse who cheated cannot receive alimony, and the supporting spouse who is the bread-winner must pay alimony if he or she cheats. The policy is based on the historical tradition of an innocent dependent spouse who was left financially stranded by the other, who left for greener pastures with another romantic interest, for example.

What is a Defense to Marital Fault?

A defense means that you can be shielded from the consequences the marital fault that you committed. A defense excuses the bad behavior (i.e., the marital fault) and gives the spouse at fault a “clean slate” legally. From our example above, if you are an adulterous supporting spouse without the legal defense of condonation, you are automatically required to pay alimony. The only remaining questions at the point is the amount of alimony to be paid, and for how long.

The Defense of Condonation

Condonation, condoning bad behavior, is as a defense to a spouse’s marital fault. Black’s Law Dictionary defines condonation as “conditional remission or forgiveness, by one of the married parties. . . the condition being that the offense shall not be repeated.” If you forgive your spouse for having an affair, for example, you do so on the condition that he or she never cheat again. Critics of condonation argue that it discourages reconciliation because the victim of the fault can be penalized for trying to save the relationship. On the other hand, the policy makes sense when you consider a 25-year-marriage, and the prospect of arguing about an affair that happened 21 years ago. Although the law delves into the reason for the separation, it does not delve into the marriage.

How Do You Prove Condonation?

To have the benefit of the forgiveness, the condonation defense, the spouse at fault must first prove that the innocent spouse knew that the misconduct occurred. It isn’t enough that he or she suspected the misconduct happened. The second requirement of condonation is to show that the innocent spouse voluntarily chooses to continue or resume the marital relationship. This is shown in one of two ways. A spouse can directly communicate forgiveness, such as writing a letter or sending an e-mail. Or, forgiveness can be shown when the innocent spouse voluntary engages in sexual intercourse after knowing about the marital fault. But isolated acts of sexual intercourse are not enough to give a spouse the defense of condonation.

Recent Condonation Case

On December 18, 2018, the NC Court of Appeals made a ruling about marital fault and defenses to it in Gilmartin v. Gilmartin. The husband had an addiction to pornography and communicated with women online. Multiple times, he denied doing these things. When his wife discovered that he was in fact doing these things again, he admitted doing them and promised her that he would go to counseling. He continued the behavior and stopped going to counseling. When he argued that she had condoned his behavior, the Court of Appeals agreed with the trial court, that she did not condone his “continuing ‘use of pornography and online sexual solicitations’ because Husband ‘deceiv[ed]’ her into believing he had ceased the behavior.” Without knowing about the behavior, she couldn’t forgive him for it.

Can We Close the Courtroom When I Testify?

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Nobody enjoys court, especially when it involves testifying about personal things such as infidelity in an alimony case or allegations of substance abuse in a child custody trial. Do you have the right to ask the judge to clear the courtroom, closing the trial to everyone except the parties to the lawsuit or their witnesses? Probably not. It is quite rare for a judge in NC to have a proceeding in “closed court.”

The General Rule

In North Carolina family law cases, the general rule is that trials are conducted in “open court.” This means all members of the public have the right to be present in the courtroom during trials, subject to safety concerns such as exceeding the fire marshal’s maximum occupancy in the courtroom. Article 1, Sec. 18 of the Constitution of North Carolina clearly states “All courts shall be open. . .” While people might think of the press being allowed to be present in the courtroom during trials, the right also applies to family law trials. In NC courts, you generally don’t have a right to privacy.

Exceptions to the Rule?

In France v. France, 209 NC App. 406 (2011), the NC Court of Appeals rejected the argument that there was a constitutional right to privacy in custody cases because children are involved. The Court ruled that the constitutional rights of the public to open court proceedings outweighed any privacy rights of the parties. The Court made some exceptions to the general rule, mainly for children in  adoption proceedings or “where a child is testifying about alleged abuse that child has suffered. . .” which would certainly involve testimony of rape, molestation or incest. France at page 417. When you file a family law case such as child custody or alimony, the lawsuit is generated by a document called a complaint, which is filed at the court-house. The on-going documents that are filed in the case, such as counterclaims or motions, are also public record.

Why Does Court Take So Long?

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It’s no secret that cases take a long time to go through court, especially if you are the person who is asking the court to do something, like order support to be paid. In a nutshell, there are too few judges, a problem that is compounded by the scheduling of judges and attorneys. Our state is burdened with many more cases than available judges to hear them. There are ongoing cuts in the judicial system’s budget. Beyond that, family law cases such as child custody, child support, alimony and equitable distribution take time to prepare. There are numerous “housekeeping” events scheduled around the actual cases, requiring thirty minutes or an hour.

Only a small number of cases actually reach the courtroom, but the cases that do can take a long time to be presented.  A custody case or equitable distribution case may take a week or longer in court if there are numerous witness or exhibits.  Real life also slows down the process, such as someone being ill that day or the air conditioning in the courthouse breaking down in July.

Cases that settle “on the courthouse steps” at the last-minute might be scheduled for three days, all of which may be wasted if there aren’t any cases that can be heard quickly with last-minute notice.  Even if a client can get there on short notice, trying to fill the court time left available is hard because of judge and attorney schedules. Certain judges have to hear certain cases, and some cases require a judge from another county because a litigant is an attorney or courthouse employee or regular witness such as a social worker or police officer. Emergency cases in family court, such as emergency custody, require the schedules to be further adjusted.

All About Adultery in North Carolina (Part 2 of 2)

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Duty of Third Party to Warn Spouse of STD

If a husband or wife passes a sexually transmitted disease (STD) to the other spouse as a result of his or her adultery, the innocent spouse may with a civil suit for financial damages against the man or woman who passed the STD to the husband or wife. To successfully prove a claim for negligent infliction of an STD, the victim spouse must prove the source of the STD, and that the infected person knew or should have known he or she was infected with venereal disease. Because it is foreseeable that the two spouses would have intercourse, the infected person has a legal duty to abstain from sexual contact, or at least a legal duty to warn the innocent spouse.

Criminal Conversation

The term criminal conversation (CC) is somewhat misleading. Although it sounds like a crime, it is not. Instead, CC is a civil lawsuit for money damages. A married person may file a claim for CC against the third-party who had sexual intercourse with his or her spouse. CC holds that third-party financially accountable to the husband or wife for interference with his or her marital conjugal relationship, which is protected by law. Although the unfaithful spouse is not on the hook for financial damages, he or she generally testifies in a jury trial about the acts that took place. Alienation of affections is a completely different lawsuit that addresses alienating or stealing the spouse, regardless of whether there was sexual intercourse. CC is exclusively based on sexual intercourse.

Divorce from Bed and Board

North Carolina recognizes a fault-based claim called divorce from bed and board (DBB), and one of the grounds for it is adultery. A decree for a DBB does not a “divorce” the husband and wife allowing them to remarry. It is a court decree that declares the spouses to be officially separated. This keeps a spouse from committing abandonment if he or she wants to separate. Instead, if a spouse successfully obtains a DBB, the spouse who committed adultery loses spousal rights to certain inheritance rights, including intestate succession, which is the right to inherit if the other spouse dies without a will. Also lost is the right to take an “elective share” of the deceased spouse’s estate if the deceased spouse tried to “disinherit” him or her, as well as the right to administer that spouse’s estate as an executor or executrix.

Criminal Law

Although it is almost certainly unconstitutional, one criminal statute that is still on the books makes voluntary adultery a crime. NC Gen. Stat. §14-184 is captioned Fornication and Adultery. The statute makes it a Class 2 misdemeanor “[i]f any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together . . .” In cases for alienation of affections and criminal conversation, parties frequently used this criminal law to protect themselves from testifying. Because adultery was a crime, a person who was sued for it could plead the Fifth Amendment to avoid incriminating himself or herself. Doing so in a civil case allows the judge or jury to assume the person did commit adultery.

All About Adultery in North Carolina (Part 1 of 2)

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Merriam Webster defines adulterate as a verb, an act “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.” North Carolina alimony laws don’t call it adultery. Instead, adultery as used in alimony cases is a form of marital misconduct called “illicit sexual behavior.” The definition is “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in NC Gen. Stat. §14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” NC Gen. Stat. §50-16.3A. People have argued about which acts between the spouse and third-party meet the definition of illicit sexual behavior. In 2011, a wife unsuccessfully argued that her behavior didn’t meet the standard of illicit sexual behavior because the man she had been with wasn’t able to complete the act they had started but were unable to finish. Romulus v. Romulus (2011). The Romulus case gives an exhaustive list of definitions (starting on page 47) of various acts.

Adultery and Alimony

In North Carolina, divorce is a “no fault” process based on a full year of separation between a husband and wife. However, we strongly cling to fault in our alimony laws. For many reasons, alimony can be awarded based only on finances, meaning incomes and reasonable living expenses. But if the supporting spouse commits adultery, he or she automatically has to pay alimony. The reverse is also true. The dependent spouse automatically loses alimony if he or she cheats. Other types of marital fault are only factors the judge must consider, and they don’t demand a particular result as adultery does. If both spouses have cheated, the judge then denies or awards alimony in his or her discretion “after consideration of all of the circumstances.” NC Gen. Stat. §50-16.3A.

How Do You Prove Adultery?

Adultery is almost always a circumstantial case. After all, most spouses aren’t advertising their infidelity. It is rarely proven by direct evidence. Therefore, our law resorts to a standard called the “inclination and opportunity doctrine.” Owens v. Owens, 28 NC App 713 (1976). This means the spouse alleging adultery must prove two things. First, was there an opportunity for the spouse and third-party to be together in privacy? Second, if they had the opportunity to be together, were they inclined (likely) to have sex? Like any other disputed fact, witnesses may testify about the opportunity, and/or whether the spouse and third-party were inclined to cheat. Other evidence might include a secret credit card account statement reflecting hotel charges or discovered e-mails/texts between the lovers. Family law cases are bench trials, cases heard by a judge. One of the few exceptions to that rule is marital misconduct, including illicit sexual behavior. A jury can render a verdict on whether the spouse committed marital misconduct. NC Gen. Stat. §50-16.3A.

Uh Oh . . . Did You Condone It?

One defense to alimony is condonation. As the name suggests, it means all is forgiven . . . and it gives a bit of a clean slate to the cheating spouse. If the innocent spouse discovers an affair and continues to stay in the marriage, the law gives the cheating spouse a second chance. After the second chance is given, if the parties separate for some other reason later, the court may consider the affair in deciding how long alimony should be paid and in what amount. In other words, someone doesn’t automatically win or lose an alimony case because of the affair. How does the law define “staying in the marriage” and condoning the cheater? In short, the court assumes condonation has occurred if the spouses voluntarily have intercourse after knowing about the affair. Malloy v. Malloy, 33 NC App. 56 (1977). One side effect of condonation is that the spouse who would’ve automatically won the alimony case is essentially punished for trying to make the marriage work.

Marital Fault

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Although the role of marital fault has been narrowed a great deal over recent years, it is still quite alive and kicking. Fault is not a factor in the divorce itself, but it does come into play with other claims that are filed with the divorce. NC acts of marital fault are listed by statute, as well as case law, decided by the North Carolina Court of Appeals.

Adultery

The deal-breaker in cases that consider marital fault is adultery but under certain exceptions, the spouse who commits fault may be given a clean slate so to speak. There are random defenses to these fault claims, but they are beyond the scope of this article. Based on my observations over the years, adultery is by far the most litigated fault ground. It is designated by statute as “illicit sexual behavior” and it “means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in [rape laws], voluntarily engaged in by a spouse with someone other than the other spouse.” Adultery is rarely proven by a “smoking gun” complete with photos or videos, as we see on television. In real life, adultery is proven with different types of evidence, including testimony of witnesses. Alimony may be proven with a collection of evidence, taken as a whole, not just one item of evidence.

Other Acts of Marital Fault

Other acts of marital fault include maliciously turning the other spouse outdoors, and treating him or her cruelly or barbarously endangering his or her life. Also considered marital fault is a spouse being an “excessive user of alcohol or drugs” when it makes the other person’s life intolerable. Closely related to that ground is another bad behavior: “involuntary separation of the spouses in consequence of a criminal act committed.” In other words, this refers to a spouse who is incarcerated. Although the law includes “reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets,” as marital fault, it can be difficult to show the other person’s intent as it relates to their money management.

Indignities

Marital fault includes “other such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” This quaintly worded bad behavior requires more than a single time or two, which the law deems a “course of conduct.” Our courts do not tell us exactly which bad behavior is included under this definition, preferring instead to consider it on a case by case basis. Many behaviors may qualify as marital fault. One North Carolina case says behavior included in the term “indignities” includes “unmerited reproach, studied neglect, abusive language, and other manifestations of settled hate and estrangement.” However, indignities can consist of willful failure to provide necessary subsistence according to one’s means and condition. Like the reckless spending fault, this one may be difficult to unravel because people manage their finances in many different ways.

Abandonment

In short, abandonment is a marital fault consisting of one spouse leaving the other spouse without justification. One creative attorney just made up a new fault ground in 1987, and named it “constructive” abandonment. It stuck, and the NC Court of Appeals has recognized it as marital fault. Any time the law needs to prevent some injustice from happening, it may choose to essentially pretend a certain thing exists, and they say it is “constructive.” As used here, constructive abandonment means that even if the spouses are both at home and no one physically abandoned the home, the court may choose to treat a spouse as abandoning the home anyway if the behavior was bad enough.

See: NC Gen. Stat. 52-B, NC Gen Stat. 50-7, NC Gen Stat. 50-16.1A, Evans v. Evans, 169 NC App 358 (2005), and Ellinwood v. Ellinwood, 88 N.C. App. 119 (1987)