December 6, 2016 |
Luke Willard |
Family Law |
Today’s staff spotlight is Ms. Alison Ruppe! Ms. Ruppe is a paralegal for Rice Law, and is committed to providing the best service and care to our clients. Alison has worked for Rice Law since 2014, and has worked in many different positions from runner, to document specialist, and now paralegal! She is a graduate of UNCW, and was a Division 1 college athlete playing softball! She enjoys spending time with her dog Zuke, and going to the beach. Thank you for everything you do Alison!
Read Staff Spotlight: Alison Ruppe »
December 1, 2016 |
Ashton Overholt |
Divorce & Separation, Estate Planning, Family Law |
Proceed with caution, carless errors in a divorce judgment can cost your kids their inheritance.
By Ashton Overholt
In Hinton v. Hinton, No. COA16-85 (2016), Mr. and Mrs. Hinton utterly failed at obtaining a valid divorce. After 24 years of marriage and 2 children, the couple separated and Mrs. Hinton filed for divorce. In the initial documents she filed with the court, the defendant was listed as Willie George Hinton, II (“Willie”), the couple’s son, rather than Willie George Hinton, Sr. (“Mr. Hinton”), the actual intended defendant and husband. Subsequently, Mr. Hinton filed an answer with the correct caption and admitted all allegations contained in Mrs. Hinton’s complaint. Overlooked by all parties involved, the Court entered a divorce divorcing Mrs. Hinton from her son, Willie. Little did they know that would eventually be a big problem.
Fast forward to 15 years later, neither Mr. nor Mrs. Hinton have remarried, and Mr. Hinton now has 3 more kids by another baby momma. Mr. Hinton falls ill and guess who reappears? Mrs. Hinton.
Upon Mr. Hinton’s death without a will, Mrs. Hinton filed a court document trying to get the divorce voided because it was impossible for her to be divorced from her son. Mrs. Hinton filed this document knowing that since Mr. Hinton died without a will she could share in his estate if she was still married to him. The trial court granted Mrs. Hinton’s request and voila, Mrs. Hinton was then entitled to a portion Mr. Hinton’s estate.
Subsequently and obviously, Mr. Hinton’s 3 children from another baby momma were outraged. They filed a bunch of motions, however, the trial court denied all of their motions and reconfirmed that Mr. and Mrs. Hinton were still married. Mrs. Hilton had won.
At this point, the kids were feeling defeated and to add to their frustrations, the only issue they could ask the court to reconsider was whether the trial court erred in telling the kids they could not be part of the court action. Nevertheless, they moved forward and continued to fight. On 15 November 2016 the North Carolina Court of Appeals in a published opinion relied on N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) and ruled that the trial court based their finding that the kids had no interest in the action on an “erroneous legal determination regarding Mr. Hinton’s status as a party.” The Court suggested that Mr. Hinton became a party to the action when he made an appearance by filing an answer. Ultimately, the Court ruled that the trail court had to hear the issue again. So maybe, there is hope after all for these kids in their effort to obtain their father’s assets, but they still have some work to do.
Will the kids prevail? Only time, attorney fees and litigation will tell.
Lesson to be learned: Hire an attorney folks – little mistakes can cost a fortune. Also, don’t die without a will, plan who you want to have your stuff.
Read She’s Backkk – when your ex-wife just can’t stay away »
August 24, 2016 |
Ashton Overholt |
Adoption, Child Custody & Visitation, Family Law |
When you consent to adoption your child is gone forever regardless of the circumstances.
On 2 August 2016 the North Carolina Court of Appeals in an unpublished opinion further affirmed what its predecessors had deemed to be true – assuming the court has jurisdiction and the adoption is valid, once a biological parent consents to the adoption of their child by another they effectively relinquish their parental rights indefinitely.
In Nesbit v. Nesbit, No. COA16-56 (2016), a biological father who consented to the adoption of his son attempted to intervene in a custody proceeding concerning his son nearly 10 years after the adoption. In 2005, the biological father consented to his son’s adoption by a man then in a relationship with his son’s biological mother. In 2015, the biological father attempted to intervene when he learned that the child no longer wanted a relationship with his adoptive father and that the court had entered a Consent Order terminating the adoptive father’s visitation that was awarded when the adoptive father and biological mother separated. The child’s biological father wanted to step in, protect his child and resume his role as father. He wanted to protect his child from alleged illegal drug use by the child’s mother and alleged physical abuse at the hands of the child’s mother and the mother’s relationships. To this, the Court said no – what’s done is done.
In a repeat attempt first tried in Kelly v. Blackwell, 121 N.C. App. 621, 468 S.E.2d 400 (1996), the biological father failed in his attempt to argue that he fell into the category of “other person” enumerated in N.C. Gen Stat. §50-13.1 as one of the categories of persons who may seek custody of a minor child. This argument was rejected for the second time and it was concluded that the biological father lost that right when he consented to the adoption of his child. The Trial Court determined that the biological father lacked standing to seek custody of his child and the Court of Appeals affirmed this ruling.
Lesson to be learned: Don’t consent to the adoption of your child unless you fully understand you are giving up your rights to them forever.
Read No Take Backs – what’s done is done »
January 31, 2016 |
Mark Spencer Williams |
Child Custody & Visitation, Family Law |
In September of 2012, I watched a man in utter pain crying on the witness stand as he recounted how his ex-wife had abducted his son, Urijah. That was my introduction to Donald Seagraves.
I was so moved by the testimony that I introduced myself to him and asked him to call me. He simply responded “Thank you but I have no money for a lawyer…” to which I said “Call me anyway… I want to help you find your son.”
Since that date, we have: (1) obtained An Emergency Order giving Mr. Seagraves sole custody of his son, Urijah, (2) obtained an Order for the Arrest of Ivonne Seagraves, (3) filed a petition with the Hague in Guatemala where she is believed to be hiding with Urijah, (4) obtained the help of the US State Department, (5) obtained the help of the Center for Missing and Exploited Children and (6) had Ivonne listed with Interpol.
Despite all of this, over three years has passed and Donald Seagraves still has not seen his son nor does he know the place where Urijah can be found. The photo above is the last photo he has of his son.
We are at a stand still legally until we find Urijah and we need your help.
We recently started a non-profit, IRS 501(c)(3) tax exempt organization called the Missing Children’s Defense Fund, Inc. to assist individuals like Donald Seagraves in finding his son. We are seeking tax deductible contributions to help fund the costs of this including (1) holding depositions of individuals in the U.S. we believe have knowledge of the location of Urijah, (2) hiring a private investigator to help find Urijah, (3) helping Mr. Seagraves hire an attorney in Guatemala. While we have provided ALL of our services Pro Bono at no cost to Mr. Seagraves, he simply does not have the money on his small income to bear the costs and expenses of finding his son.
Stroud & Company, CPAs here in Wilmington donated their time to make this a tax-exempt organization, Attorney Michael Davenport in Wilmington donated his time to establish the corporation as a non-profit in the State of North Carolina, a UNCW Student, Alex Rhoades, volunteered many hours to assist in this project and Attorney Fred Owens, Private Investigator Bill Ratcliff, many staff of Rice Law, PLLC and others continue to donate their time and money to help find Urijah.
Please consider donating to this cause. We are also happy to host volunteers especially court reporters, private investigators and others willing to donate their time to the cause or help us raise funds.
For more information, see the Find Urijah Seagraves Facebook Page and please click below to donate funds.
Read The Missing Children’s Defense Fund »
September 4, 2014 |
Mark Spencer Williams |
Family Law, Property Distribution |
Carlton and Susan met in 2004 at Chrome’s Bar and Grill in Fayetteville where Carlton was a customer and Susan was working as a bartender. They began dating and Susan became pregnant with their first child. By 2009 they separated and were divorced in 2011.
Carlton owned a business before, during and after their marriage called Air Tech. Evidently, Carlton failed to obtain a prenuptial agreement to protect his business assets before he married Susan. During their marriage, Susan did not contribute any money to their bank accounts and therefore, Carlton mistakenly argued, none of the money in those accounts were “marital.”
The North Carolina Court of Appeals issued an opinion on 2 September 2014 in the Clark v. Dyer matter. Attorney Terry Garner represented the Defendant, Susan Belmain Dyer at trial but Susan had no representation on appeal. Kimberly M. Ferrier represented Plaintiff, Carlton Clark, Jr., both in the trial court and on appeal.
At trial, Carlton and Susan were each awarded 50% of the marital property. On appeal, the Court of Appeals summarized Carlton’s argument as “the trial court gave [Susan] the gold mine, while he got the shaft” referencing the Jerry Reed song:
“‘Goodbye, turkey. My attorney will be in touch.’ So I decided right then and there I was gonna do what’s right[.] Give ‘er her fair share but, brother, I didn’t know her share was gonna be that much. She got the goldmine . . . I got the shaft. . . . They split it right down the middle, And then they give her the better half.” Jerry Reed, She Got the Goldmine (I Got the Shaft), on The Man with the Golden Thumb (RCA Records 1982).
The Court of Appeals found many flaws in Carlton’s appellate brief including inaccurate references to the record and transcript and the Court somewhat chastised Carlton for dwelling on the circumstances around the inception of his relationship with Susan which the Court found irrelevant to the appeal. The Court of Appeals also found that all of Carlton’s earnings during the marriage were marital and thus all of the funds he deposited to the bank accounts which he contended were his separate property (under some flawed theory that because Susan did not make any contributions his earnings must be his) were marital.
Carlton also argued unsuccessfully on appeal that the $22,637.29 he was ordered to pay toward Susan’s attorney fees should have been treated as marital debt. The Court of Appeals found that a debt is one incurred during the marriage and this debt was incurred after the parties separated and found the argument to be frivolous. And he also argued unsuccessfully that Susan failed to get an appropriate business valuation of his business. The Court of Appeals found that “To the extent that the trial court lacked evidence on these valuations, plaintiff, as the owner and operator of these businesses, would be primarily at fault, as he had all of the information regarding his “separate business property[.]” (See our blog on business valuation for more information on that subject).
This case teaches us several things. First, get a prenup and/or postnup to protect your business assets. Second, don’t mistakenly assume that keeping your bank accounts separate somehow makes the money you earn during the marriage your separate funds. Third, get an expert to properly value your business and ensure that testimony is properly presented. Finally, if you lose at trial and decide to appeal, make sure your brief is accurate and on point.
Read “She Got the Goldmine, I got the Shaft” as retold by Clark v. Dyer, COA 13-1230 »
August 27, 2014 |
Mark Spencer Williams |
Divorce & Separation, Family Law, Property Distribution |
Unless you have a valid prenuptial agreement or postnuptial agreement that protects your business as your separate property, when you divorce the business is likely to be an asset that is divided in the divorce. This article provides an overview of what happens without a prenup or postnup.
In North Carolina, any property obtained during the marriage is subject to equitable distribution. Property obtained before marriage is usually one’s separate property and property obtained during the marriage is usually marital property subject to division. An equitable distribution is presumed to be an equal distribution although a judge can award a greater percentage. This is all set out in N.C. Gen. Stat. 50-20.
If one spouse owned the business before marriage but continued to work in the business after being married, a portion of the business may be separate property and a portion of the business may be marital property. The other spouse is often entitled to one-half the increase in value of the business measured from the date of marriage through the date the parties’ separated. If there has been no increase in value, there may be nothing to divide.
Husband and Wife can agree how to divide the business. One can maintain ownership and buy the other out. For example, if Husband owns a car dealership worth $1 million that was created during the marriage, Wife will be entitled to $500,000. Of course a buy out will require that the buyer can fund the purchase (which often occurs through the transfer of other assets such as 401(k), IRA, real property, etc.). The parties can continue to own it jointly and run it together which is not a good option given that ex-husbands and ex-wives don’t usually get along that well and probably would not be able to run a business together. Or the parties can sell it for its true fair market value and split the sales price.
If the parties cannot agree how to handle the business, the court will divide it in equitable distribution. Often this means the business needs to be valued and the spouse who keeps it will have to pay the other spouse their share of its value. And if the business has so much debt that it has a negative value one spouse may have to pay the other to take the business and its liabilities (this in part depends on the legal structure of the business entity).
Business valuation is perhaps the most difficult aspect of this process. It generally requires that an expert be hired to value the business. Three common approaches to valuing the business include: (a) an assets approach that considers the value of the assets and liabilities; (b) a market approach which considers what the business could be sold for on the open market; and (c) an income approach which determines what amount of capital would be necessary to secure the earnings produced by the business.
Its important that you hire a lawyer who understands complex business valuation.
Read Are you a Business Owner Facing Divorce? »
August 25, 2014 |
Mark Spencer Williams |
Child Support, Divorce & Separation, Family Law |
I was sitting in Court last week waiting for the Judge to finish a case she was hearing so that I could seek an Ex-Parte Emergency Child Custody Order for my client. While waiting, I watched and listened to the trial taking place before me.
Apparently a former husband who was representing himself, pro se, had filed to reduce his child support and the former wife, who was represented by an attorney, had filed to hold him in contempt of court for non-payment of child support and had sought formal discovery from him which he had not supplied.
And then the husband said words to the effect of “your honor I have no money as I have spent over $250,000.00 in attorney fees over the past three years.” And then he related that he was representing himself because he was financially devastated and did not even have enough money to pay his accountant to file his taxes.
A quarter of a million dollars, in attorney fees!
I must admit our firm has never collected this amount of money from a single client for a divorce case. My first humorous thought was that I was not charging enough. And then I reflected on the seriousness of the case before me. This couple once had multiple properties, significant assets, a successful business and they lived well. Now the husband, if you believe him, has nothing. His properties went into foreclosure, his business was shut down because he could not pay creditors and his income gone. And I think I do believe him because he also told the judge that she should put him in jail because he had no more money to pay. But the wife certainly does not believe him and obviously distrusts him because she has her lawyer chasing documents in an attempt to prove he is hiding cash.
This case caused me to think about a Pyrrhic victory.
In 279 B.C., King Pyrrhus of Epirus, defeated the Romans at Heraclea and in 280 B.C. defeated the Romans at Asculum but his army suffered such irreplaceable casualties in winning that the win was a “loss” thus coining the phrase “Pyrrhic Victory.”
It would seem to me that this couple is like King Pyrrhus and the Romans. I am not sure whether the wife or the husband “won.” From what I heard in Court, it appeared both had lost a great deal. It appears that the scortched Earth policy that each took with the other resulted in neither having much of anything. Perhaps in the end only the attorneys won in the case I watched.
And this would seem to teach us a few things.
1) As attorneys, we need to be mindful of the cost/benefit of the actions we take for our clients and we need to educate our clients on this and include them in the decision making process;
2) Litigants need to take a step back and consider the whole picture; and
3) Avoid Pyrrhic victories.
As an end note, I am not a fan of collaborative law. In fact, I wrote a very negative review of collaborative law in 2009. If collaborative law is one extreme then a scortched Earth Pyrrhic victory is the other. The successful litigant falls somewhere in between.
Read Scortched Earth Divorce Creates a Pyrrhic Victory »
August 2, 2014 |
Mark Spencer Williams |
Divorce & Separation, Ethics, Family Law |
We often get telephone calls asking whether a divorcing couple can use the same attorney for their divorce. The short answer is NO!
It is a violation of the lawyer’s rules of ethics to represent both husband and wife in a divorce. The interests of the parties are directly adverse to each other and there is no possible way for the attorney to competent, diligent representation to both. The American Association of Matrimonial Lawyers states that “An attorney should not represent both husband and wife even if they do not wish to obtain independent representation.”
Even if husband and wife have reached an informal agreement regarding the issues of their marriage and solely desire that a lawyer or mediator draft their agreement, it is not possible for one individual to do this without favoring one party over the other.
For example, suppose that husband has a pension and the lawyer has been asked to draft an agreement that divides the pension equally between the parties. The lawyer knows that the agreement can be drafted to provide survivorship benefits for the wife in the event of husband’s death but in doing so it will reduce the monthly amount husband will receive before his death. Without including the clause giving survivorship benefits, the Wife may get nothing upon Husband’s death. Even bringing this issue up to both parties may cause Husband to lose something or the deal to unravel. Its impossible for the lawyer to discuss the pros and cons with both parties and help them reach a decision about this issue and be loyal to both.
Clients are entitled to attorneys they can trust to act with commitment and dedication to their interests in their legal matters. Its simply impossible for an attorney to advise both Husband and Wife.
No attorney in the State of North Carolina can ethically represent both Husband and Wife in a divorce.
Read Can My Spouse and I Use the Same Divorce Attorney? »
July 29, 2014 |
Mark Spencer Williams |
Child Support, Family Law |
The North Carolina Court of Appeals decided the case of Loosvelt v. Brown, ___ N.C.App. ___ (2014) on 15 July 2014. Mr. Grant Loosvelt, a California citizen, brought a lawsuit against Ms. Stacy Brown for child custody and to establish his child support obligation. Ms. Brown brought counterclaims including one for retroactive child support. The trial court awarded over $7,000.00 per month in child support along with almost $40,000.00 in retroactive child support including in excess of $5,000.00 in pre-birth nursery expenses and maternity clothes.
The Court of Appeals addressed the issue of retroactive child support and clarified the law on what expenses can be recovered before a child’s birth. A parent’s obligation to pay child support arises when the child is born. However, a parent may be obligated for “medical expenses incident to the pregnancy and birth of the child.” N.C. Gen. Stat. § 49–15.
A parent can seek retroactive child support for child support prior to the filing of a complaint. However, the Statute of Limitations (N.C. Gen. Stat. § 1-52(2)) limits a parent to no more than three years of retroactive support. The parent seeking retroactive child support must present sufficient evidence of past expenditures made on behalf of the child, and evidence that such expenditures were reasonably necessary.
If you are filing an action for child support, be sure to talk with your lawyer about making a claim for retroactive support.
Read Retroactive Child Support »
July 23, 2014 |
Mark Spencer Williams |
Divorce & Separation |
Today I watched men and women one by one trying to get a District Court Judge to grant them a divorce without the help of a lawyer.
Just prior to this, attorneys put their client’s on the witness stand, asked a few questions and got their clients divorced in just a few minutes. Attorneys also handled summary judgment motions where the clients did not even appear before the judge but the divorces were granted. Perhaps as many as 10 divorces done in less than 25 minutes.
And then came the Pro se litigants. Pro se is a Latin phrase meaning “for oneself.” When someone represents themselves without a lawyer in court, they are acting pro se.
These pro se folks were visibly nervous. When their name was called, the bailiff asked for copies of their divorce judgments and copies of their divorce certificate. If they did not have them, they were asked to leave. If they had them, the Judge would review them. At this point, nearly 4 of 5 were turned away because the paperwork was not in proper form. One of the gentlemen who sought a divorce protested to the Judge that this was his “second time” trying to get the divorce after having been there a few weeks ago. After reviewing his paperwork and finding it deficient, this man learned he would have to come again next week for a “third time.”
Another person could not finalize the divorce because the Separation Agreement and Property Settlement that was requested to be incorporated into the Divorce Judgment was not in the file.
In my opinion, the Judge properly handled these pro se folks. Some of their questions: If the Separation Agreement is not in the file, can I go ahead and just get divorced without having it incorporated? Judge: I know the answer to that but I can’t answer because that would be giving you legal advice. I suggest you speak with a lawyer. And that was the right answer from the Judge. This simple decision to incorporate or not could have significant positive or negative implications for the person seeking the divorce.
But the bigger issue is I saw individuals obtain a divorce who most likely had not filed an action for spousal support or equitable distribution. And when they thought they had “won” by obtaining that divorce, the truth is that they had lost big because by failing to bring these claims before the entry of the divorce they had forever waived their right to alimony and distribution of marital property (including pensions, military pensions, etc.).
While our Firm has posted information about a DIY Divorce, we strongly recommend you hire a lawyer instead to ensure you preserve your rights.
By hiring an attorney you may save yourself thousands of dollars simply by protecting your rights. You may also feel less nervous in court, may not even have to take time off from work to show up for court, and are far less likely to have to show up for court on more than one occasion.
Read A DIY Divorce Is a Bad Idea! »