The GPS companies often market these devices for those who are concerned their spouse is cheating on them.  No special training is required to install or use one of these devices.  To install the device, you must have access to the vehicle.  The quality, however, is dependent upon the type of device and its specifications.  Private investigators usually have the highest quality GPS units and are well trained in their use.

The 64 thousand dollar question is whether use of these devices without the driver’s and/or car owner’s knowledge and consent is legal.  Recently, the United States Supreme Court in the case of U.S. v. Jones, 565 U.S. ___ (2012)  considered whether police could use a GPS tracking device without a warrant to track an individual suspected of trafficking drugs.  In that case, the Court determined that the use of a GPS device to track a suspect without a search warrant was a violation of the Fourth Amendment protection against unreasonable search and seizure.  The Court found that by placing the GPS device on the suspect’s vehicle, “[t]he Government physically occupied private property…” and therefore committed an unlawful trespass.  Until this case, proponents of the legality of GPS tracking argued that there was no reasonable expectation of privacy since what the GPS tracks could also be tracked with the naked eye when the vehicle travels on public roads.

But even this argument was suspect because the vehicle is often on private property when the device is attached (a trespass) and the vehicle may travel on private property in places that could not be monitored with the naked eye.

In North Carolina, to prove common law trespass, the plaintiff merely has to show: (1) that they were in actual or constructive possession of the property; (2) that Defendant made an unauthorized entry; and (3) some damage (or if no actual damages, Plaintiff is entitled to nominal damages).  In addition to trespass by walking on a person’s property, North Carolina also recognizes the tort of trespass to chattels which is a trespass to personal property (like a car).  A successful action for trespass to chattel requires: (1) actual or constructive possession of the personal property at the time of the trespass; and (2) an unauthorized, unlawful interference or dispossession of the property, See Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999).

While there are no cases on point in North Carolina regarding whether the use of a GPS tracking device could constitute a trespass, given the U.S. Supreme Court’s decision in Jones and North Carolina jurisprudence, it is our belief that such a claim would be valid in North Carolina by an owner of the vehicle against an individual (and their agents) who planted the device and monitored the data.  Some lawyers have expressed their view that since there are “no prohibitions on the use of such devices”  that they must be legal.  Follow this advice at your own risk!  Relying on bad legal advice, even from your lawyer, is not a defense in North Carolina.

Another possible claim against a person who puts a GPS tracking device on your vehicle under North Carolina law is invasion of privacy.  To prove invasion of privacy in North Carolina, you have to show an intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns and that the intrusion would have been highly offensive to a reasonable person.  See Miller v. Brooks, 123 N.C.App. 20 (1996).   Under NC law, defendants have been found liable for invasion of privacy for such conduct as eavesdropping, wiretapping, peering through windows, persistent telephoning, unauthorized prying into one’s bank account and opening the mail of another.  This too could be a valid claim against an individual for placing a GPS tracking device on your vehicle.

There are additional questions that a court may ultimately be asked to answer including:

1. What if the device is attached to a vehicle while it is parked in public and not on private property?  Our opinion: It would still be a trespass to chattels and possibly an invasion of privacy unless the device is attached by the owner of the vehicle or his or her agent.
2. Does it matter whether the device is used on a vehicle to monitor his wife or her husband?  Our opinion is that it is not a trespass for the device to be used on marital property before the parties date of separation and it is not likely to be considered an invasion of privacy.  However, the answer is simply “unknown”.
3. If used to monitor a spouse, does it matter whether the device is used before date of separation or after?  We think the answer is absolutely.  In the Miller v. Brooks case, Court of Appeals found that wife’s conduct of having a hidden video camera installed in the former marital home after date of separation constituted invasion of privacy.
4. Can an employer use a GPS device to monitor his or her employees without their knowledge or consent?  Employers generally have a right to monitor employees use of employer owned equipment.  If the vehicle is company owned, the employer likely has a right to install a GPS device.  However, it would be good practice to notify the employees in writing of the company practice to monitor company owned vehicles with a GPS device and what data is collected to avoid claims of invasion of privacy.

Until a case with these facts reaches the North Carolina Court of Appeals, the simple answer is that we don’t know whether it is legal or not.

Assigning one judge to the matter is the cornerstone of any family court system. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family. There can be many issues facing a family going through dissolution of the marriage – child support, divorce from bed and board, child custody, alimony, equitable distribution, and absolute divorce are several such claims that may be prompted by a separation of the parties. Pursuant to these claims, there are numerous motions and/or interim solutions which could become relevant based upon the circumstance. For instance, ex-parte child custody, temporary child custody and child support, interim distribution, temporary restraining orders, post-separation support, motions and orders to show cause in contempt, and/or motions to compel may become necessary. Many of the facts in each motion or claim may overlap, such as: Post-separation support and alimony, or temporary child custody and child custody. In order to prevent disparate outcomes, long recounts of a family’s history, and uneven applications of the law between claims and so as to provide the opportunity for tailored rulings specific to the details of a particular family, the family court system requires that one judge hear all the issues of one family whenever possible. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family.

In addition, when one judge is assigned to a matter, that matter stays on the judge’s calendar until resolved. Parties are unable to continue a matter so as to get a “favorable” judge or to delay a matter simply to cause the other party hardship. Furthermore, one of the penultimate goals of family courts are to resolve the issues of a family within one year. This one-year goal coupled with the restrictions on continuances cuts down the amount of continuances which will be allowed or tolerated by the Court. According to the 2011 Annual Report on NC’s Unified Family Court Programs which looked at the duration and length of cases over a seven year period, in counties with a family court system, only 22 percent of domestic cases were not resolved within a year as compared to 47 percent in non-family court counties. The seven year average age for cases in family court is 108 days whereas, in non-family court jurisdictions, the average age over the last seven years was 332 days.

Many family courts employ a simple and predictable calendaring system. For instance in New Hanover County, North Carolina, judges typically have a two-week session in each month dedicated to family issues. Each judge’s session is published in advance and the cases on the calendar are organized at an advanced (generally) calendar call. If a matter is not able to be heard during that session, the family court administrators move it to the next session and it remains on the calendar from session to session until it is heard by the Court. For smaller or quicker matters, some judge’s will schedule shorter sessions when time allows.

Since 1999, Family Courts in North Carolina have been providing parents with tailored and efficient resolution of their family law issues. Despite the numerous advantages of a family court system, as of late the family court has been under attack in the North Carolina legislature. Recent moves by the legislature to cut funding to the family court system in North Carolina only means an increase in inefficiency, time, and hardship for the family’s of North Carolina. Rice Law, PLLC, encourages all parents and spouses in North Carolina to write your state representative and let them know that funding for family courts in North Carolina (as well as other specialized courts in North Carolina) should not be cut when there are proven advantages to them being retained.

There appears to be a trend to treat household pets more like children than property where courts determine the better custodian for the pet and grants visitation rights to the other “parent.”  North Carolina is not embracing this trend.  Pets are considered property in North Carolina.  In divorce proceedings, the pets are valued and divvied up like household goods without considering the pet’s best interests or who would be the better custodian.² One exception to this, however, is when there is domestic violence.  Our legislature enacted a law that allows the family pet to be awarded to the victim of domestic violence as part of a domestic violence restraining order.³

In putting a value on the family dog, our courts consider replacement costs only and not the intrinsic value of the animal.⁴    Therefore, if the parties can’t agree on who gets the dog and an equal distribution of property is made by the Court, the party who did not get the dog will not get extra property as a result.

A few years ago, a New Hanover County attorney brought a custody action regarding a dog under the statutes addressing child custody.  The trial court was not amused, considered it an improper action, and the action was promptly dismissed.

Even though our courts are slow to recognize the needs of the pet, individuals often settle the issue with a pet custody agreement which defines the sharing arrangement, visitation and may even provide financial payments for the benefit of the dog or cat.  Such agreements are contracts between individuals and can be made whether or not the parties were married.

Endnotes:

up¹http://www.spokesman.com/stories/2012/mar/03/divorce-lawyers-see-increase-in-pet-custody-cases/

up²See Jones v. Craddock, 210 N.C. 429,  431,  187 S.E. 558, 559 (1936); Davis v. Sineath, 129 N.C. App. 353, 354, 498 S.E.2d 629, 630 (1998) (dog valued at $550.00 distributed as marital property); Lawing v. Lawing, 81 N.C. App. 159, 164, 344 S.E.2d 100, 105 (1986) (five cats divided as marital property worth $25.00).  However, in contrast our Legislature has enacted laws to prohibit cruelty to animals (e.g., N.C. GEN. STAT. § 19A-1 et. seq.) and to encourage suitable care for an animal but such considerations are improper in divorce proceedings.
up³See N.C. GEN. STAT. § 50B-3(a)(8)
up⁴Shera v. N.C. State Univ. Veterinary Teaching Hosp., ___ N.C.App. ___, ___ S.E.2d. ___, 2012 WL 539989 (2012).

The article notes that the veracity of the story was not verified.  In it, the husband claims he loaded the app, “Find My Friends,” to his wife’s iPhone without her knowledge or consent. The application uses the iPhone’s built-in Global Positioning System to broadcast its location to a selected group of friends.  By enabling the GPS broadcast without his wife’s knowledge or consent, had he been in North Carolina, it could conceivably be a breach of privacy actionable under tort law (although there are no current appellate cases on this issue in North Carolina).

We expect these type of technology issues — especially whether it is an invasion of privacy — to become more prevalent in family law cases over the next few years.

Read the full story at Yahoo News.

Living in the same house cannot be “separate and apart.”  In Richardson v. Richardson, 257 N.C. 705, 709, 127 S.E.2d 525, 528 (1962), the North Carolina Supreme Court found that even though husband and wife had become estranged, they were not legally separated because they continued to live under the same roof.  The North Carolina Court of Appeals has stated that “separation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together.” Ponder v. Ponder, 32 N.C. App. 150, 153, 230 S.E.2d 786, 788 (1977).

The North Carolina Supreme Court has also found that even when husband and wife had lived in separate rooms for five years and had discontinued all sexual relations for more than two years, they were not legally separated.  See Dudley v. Dudley, 225 N.C. 83, 85, 33 S.E.2d 489, 490 (1945). Cessation of sexual relations does not alone constitute a separation. Lin v. Lin, 108 N.C. App. 772, 775, 425 S.E.2d 9, 11 (1993).  In fact, after the parties do separate, “isolated incidents of sexual intercourse” do not constitute a reconciliation such that the one year waiting period has to start over. And this makes sense because the public policy of North Carolina dictates that we want people to stay married and if they can’t date for the purpose of trying to reconcile, it would discourage attempts at reconciliation.

It has long been established in North Carolina that a married couple living in the same house and holding themselves out as man and wife cannot be deemed to have separated.  Oakley v. Oakley, 54 N.C. App. 161, 162, 282 S.E.2d 589, 590 (1981).

In one unpublished case, after the parties actually separated by living separate and apart, a husband was allowed to move into a separate apartment that was locked off from the rest of the house and the Court did not find that this constituted a separation.  See Lange v. Lange, 164 N.C.App. 779, 596 S.E.2d 905 (2004).  It is my opinion, however, that the Court upheld this arrangement because the husband had lived away from the house for a period of time before he returned to live in the apartment.

In conclusion, to be legally separated in North Carolina, you can’t live in the same house.  You must live under different roofs and one of you must form the intent to no longer live as husband and wife.

The problem with the lawsuit was that Robert Bell and James Mozley are both citizens and residents of Beaufort, South Carolina.  James filed motions to dismiss the law suit for lack of jurisdiction. These motions were denied and James appealed to the North Carolina Court of Appeals and won. The Court of Appeals handed down its decision on 1 November 2011 finding that North Carolina does not have jurisdiction over the two South Carolina residents’ dispute.

The Court held that the torts of alienation of affection and criminal conversation are designed to protect the institution of marriage for North Carolina residents and when the torts occur in the State of North Carolina.  In this case, neither Robert nor James are residents of North Carolina and Robert could not prove that James had sex with Lisa in North Carolina.

Robert Bell and his wife, Lisa, had invited James Mozley and his wife to spend New Years with them at their second home in Blowing Rock, NC in 2006.  Sometime after that, Robert Bell discovered vaginal lubricant and unexplained telephone calls.  While he could later prove sexual relations between his wife, Lisa, and former friend James Mozley in four other states (South Carolina, New York, Hawaii, and California), he fell short in his proof regarding North Carolina.

Since South Carolina has abolished the torts of alienation of affection and criminal conversation, Robert Bell’s race to file suit in North Carolina smacked of forum shopping to our Court of Appeals. For the full decision, read it here.

To learn more about the heart balm torts of alienation of affection and criminal conversation, read about them here.

Court Orders obtained “Ex-Parte” represent a decision of a judge made without the presence of all parties to the controversy.  When a Plaintiff, the person initiating the lawsuit, files the lawsuit, that spouse (or usually their attorney) can approach a judge and ask the judge to enter “Ex-Parte” orders. Common “Ex-Parte” orders include orders regarding the custody of a minor child, injunctions, sequestration orders, and restraining orders.

If the Plaintiff makes allegations that a minor child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina, the Court can enter an Ex-Parte Order on Child Custody that changes the normal living arrangements of the minor child.

Injunctions are often entered Ex-Parte to prevent the sale, destruction or waste of marital property. Sequestration orders may be entered Ex-Parte to grant an exclusive right of use of a former marital residence to one spouse to the exclusion of another.  Restraining orders may be entered Ex-Parte when there are allegations of regarding specific assets and debts and the use thereof or allegations of domestic violence.

Normally, an attorney’s obligation is solely to their client and only presents their client’s side at a hearing. In an “Ex-Parte” proceeding, however, an attorney’s ethical obligations require the attorney to inform the judge of all material facts known to the lawyer to enable the judge to make an informed decision whether or not the facts are adverse.

After the entry of any “Ex-Parte” order in a family law case in North Carolina, a hearing must generally be held within ten days to allow both parties to present facts and allow the judge to determine whether the order issued “Ex-Parte” should remain in full force and effect, be vacated or modified.

The term “Ex-Parte” is also used to refer to improper contacts with a Judge without notice to the other party or counsel for that party — usually those that occur after the filing of the initial lawsuit.  Once a lawsuit has already been filed, a party and their attorney cannot generally have “Ex-Parte” communications with a judge with some exceptions.

An example of an improper “Ex-Parte” communication made national news in 2009 when a North Carolina judge and an attorney communicated by Facebook regarding an on-going child custody case.   Judge Terry of Iredell County was reprimanded by the NC Judicial Standards Commission for the contact via Facebook.  To prevent the appearance of impropriety, some states (e.g., Florida, Oklahoma) have banned it and others have issued ethical opinions regarding it.

But “Ex-Parte” does not have to be over Facebook, it can be any communication where one party or their lawyer speaks with the judge without the presence of the other side.

While “Ex-Parte” is sometimes appropriate and ethical — especially at the outset of a lawsuit to obtain needed orders, it brings significant risks for the attorneys and the judge.

Sarah Files for Divorce and John Keeps the Majority of the Money

John worked for a company for many years and had built up a 401(k) worth three hundred thousand dollars. His wife, Sarah, filed an action against him for an absolute divorce using some forms she found online. When John came to me for legal advice, we made a list of the property that he and his wife acquired during the marriage.

• Former Marital Home [Joint] $ 245,000
• Mortgage [Joint] ($ 175,000)
• 401(k) [John] $ 300,000
• His Car [John] $ 14,000
• Debt on His Car [John] $ 0
• Her Car [Sarah] $ 18,000
• Debt on Her Car [Sarah] ($ 8,000)
• Checking Account [Joint] $ 2,300
• Net Marital Estate $ 396,300

If either filed for equitable distribution and the Court agreed that the above listing accurately represented the property acquired during the marriage, it would be presumed equitable for each side to get property worth ½ the overall value or $198,150 each. However, if a divorce occurs without each side properly preserving their claim for equitable distribution then property vests based upon title. Therefore, under the facts above, John would keep his 401(k) and car worth $314,000 and Sarah would keep her car and the debt on her car worth $10,000. The joint property would be held as tenants in common with each having an undivided interest in the whole. John could sue Sarah after the divorce to divide the house with $70,000 in equity and potentially have a total of $349,000 (1/2 the equity in the house plus the 401(k) and car) while Sarah would only get $45,000 total. In theory, the checking account could also be divided through a petition to partition personalty but it probably would not be worth the cost. So it is to John’s advantage to get divorced without suing for equitable distribution. Actually, he comes out better by over one hundred and fifty thousand dollars!

Very little of it was jointly titled and most of it was in John’s name. The 401(k) like most retirement plans was solely in his name. My advice for his particular case was “let her get the divorce and then we will file a petition to partition the real property.”

The entry of a divorce judgment forever cuts off claims for the division of marital property (equitable distribution) and spousal support (post separation support and alimony). The failure to specifically apply for these rights prior to the entry of a divorce judgment acts as a waiver of these rights and they are lost forever. North Carolina law, N.C. GEN. STAT. § 50-11(e), states that “an absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution.” To preserve claims for equitable distribution and alimony, a valid claim must be asserted before entry of the divorce.

So be careful when filing for divorce in North Carolina. It is worth it to consult with an attorney and determine the best option for your particular situation. A simple divorce could cost you hundreds of thousands of dollars! It also cuts off alimony rights and if John would owe Sarah alimony in the above hypothetical, she would be in even worse shape!  In this case, Sarah made a huge mistake.