In May 2010, the husband was arrested for assault on Ms. Kenton and entered an Alford guilty plea in October 2010. Ms. Kenton attempted to renew the DVPO in January 2011 citing Mr. Kenton’s guilty plea as evidence that he continues to be a threat. Mr. Kenton moved to dismiss the renewal of the DVPO on the grounds that it was invalid as failing to show he had ever committed an act of domestic violence. The Honorable Jeffrey Evan Noecker took judicial notice of his guilty plea for assault and renewed the order denying his motion to dismiss. The North Carolina Court of Appeals reversed Judge Noecker holding that without a finding that an act of domestic violence had ever occurred, the trial court had no authority to enter a restraining order to prohibit future acts of domestic violence and therefore, the Consent Order was void ab initio.

It has not been uncommon to enter Consent Orders to resolve complaints regarding domestic violence without specific findings of fact so that a spouse has the protection of a restraining order without the other spouse having findings that can be used in a criminal prosecution.

As a result, family law attorneys and some judges are reviewing Domestic Violence Protective Orders entered by Consent throughout the State of North Carolina in the wake of the Kenton holding to determine whether orders entered without findings of fact as to domestic violence are valid. A “flood” of motions to set aside protective orders is expected.

In our practice, we have often used common law restraining orders in lieu of DVPOs to achieve the same goal and they are not affected by the Kenton decision.

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).

On a national level, domestic violence costs employers $5-8 billion annually. As a business leader, it negatively impacts productivity, morale, absenteeism, healthcare costs, and the bottom line. For the past seven years, the Business Community Action Team of EVOLVE Wilmington! has been working with several New Hanover County employers on tackling this problem head-on.

EVOLVE Wilmington! and Verizon are co-sponsoring a workshop on 27 September 2011 for employers.  The half-day workshop discussing specific tactics on how you can protect your bottom line. Topics will include: How domestic violence affects the workplace Safety and security Awareness and education Employee support measures Accountability and legal issues

The workshop’s keynote speaker will be Johnny Lee, the founder of Peace at Work. Mr. Lee is the developer of the Employment and Domestic Violence Matrix which is currently used around the world to show how employment is a protective factor for Domestic Violence prevention. He has conducted a research study on over 500 cases of domestic violence assaults that have occurred in the workplace and has also authored the book, Domestic Violence in the Workplace.

For more information, or to register to attend, please email Rick Houston or call him at 910-343-9969, Ext. 22.  A continental breakfast will be served.

As a precursor to the workshop, Telling Amy’s Story, a video on domestic violence, will be shown on Monday, September 26 at 7:00 p.m.in UNCW’s Lumina Theater located in the Fisher Building. This film documents the timeline of a domestic violence homicide that occurred in central Pennsylvania in 2001. It is narrated by the detective who led the case review and documents the many opportunities where those around Amy—including her employer—might have gotten involved or sought help. Following the film a panel discussion will be held to allow local leaders to discuss how our community is – or should – respond to the issue.

Both events are free and open to the public.

The law on relocation differs depending on whether a child’s custody has been litigated, and whether a child’s custody is addressed in a Separation Agreement. If the parties have not litigated issues related to their child and do not have a Separation Agreement, it is possible to relocate immediately inside or outside of North Carolina prior to litigating custody and/or child support. If the new location is in another state, consult an attorney in that state for advice on how much time you must reside there before filing a custody action. Generally, a person is also allowed to take their child and move immediately to a new location if domestic violence is involved.

If parents have litigated custody or have a Separation Agreement, and relocation is not agreed to by both parents, an attorney will likely file a Motion to Modify Visitation or Custody. There are several recent North Carolina cases involving these motions, essentially requesting the court’s permission to relocate. The parties in these North Carolina cases had different reasons for requesting that the court grant their motions, but a similar test was applied by the courts in the cases. The courts considered the child’s best interests to determine whether to modify custody or visitation. A court might also refuse to modify a prior Order unless a substantial change of circumstances has occurred; however, a move for employment reasons is likely a substantial change of circumstances. Based upon these cases, a court will likely use several factors to determine the child’s best interests. These factors include:

…the advantages of the relocation in terms of its capacity to improve the life of the child; the motives of the custodial parent in seeking the move; the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina; the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

—Evans v. Evans, 138 N.C.App. 135, 142, 530 S.E.2d 576, 580 (2000).

If a North Carolina trial court uses these factors to determine the child’s best interests its decision is more likely to be upheld on appeal.

A court also has the discretion to reduce child support payments in a case involving relocation. If a court allows relocation of a parent and child, that court will have possibly held that a substantial change of circumstances occurred. As a result, that court may not only modify custody, the court may also modify child support. A court can increase or decrease child support, and a court can deviate from the North Carolina child support guidelines. For instance, a court might suspend a parent’s child support obligation so that the non custodial parent can visit the child in the new location.

Preparation is important when attempting to relocate. It is wise to first consult the other biological parent, and to memorialize any agreement in writing, at which time an attorney can draft a consent order or modification of a Separation Agreement as appropriate. If no agreement is reached, consult an attorney to prepare a Motion to Modify Visitation or similar action, and also consider child support. In all cases, your ability to relocate will depend on what is in the best interests of your child.

These no contact orders are under the statutory section named “50C” and therefore are often known as “50C” orders as opposed to “50B” orders which are domestic violence protection orders (DVPO). A 50B or DVPO requires a special relationship between the parties (e.g., cohabitating, etc.) and domestic violence whereas a 50C is much less restrictive. A 50C does not require the plaintiff to be in any type of relationship with the defendant. But to get a 50C, the victim must have been stalking (following or harassing the victim to make that victim afraid for their safety, or the safety of a family member or personal associate and which causes that person to suffer substantial emotional distress) or there must have been nonconsensual sexual conduct (e.g., such as touching, fondling, or penetration of sexual organs or breast of another, for the purposes of sexual gratification or arousal).

Prior to its creation, a victim could bring criminal charges but could not obtain a civil restraining order against a stalker or person who caused nonconsensual sex. The 50C solved the problem of an individual stalking someone they had never met. Now a victim can do both.

The 50C does not have the “teeth,” however, of a 50B. A violation of a 50B can result in immediate criminal arrest and imprisonment whereas a violation of a 50C does not lead to immediate arrest. A violation of a 50C is punishable by contempt which can include jail time but only after a hearing to determine if the defendant is actually in contempt.

50C Orders can be temporary or permanent in nature. If granted, a temporary 50C civil no-contact order will be effective for not more than ten (10) days unless the Defendant consents to a longer time period. A permanent civil no-contact order will be effective for a fixed period of time not to exceed one year.

Very little case law exists on 50C Orders as the statute is so new. However, a recent 2008 case is interesting because it deals with “cyber stalking.”

Judge Foster in Madison County issued a civil no-contact order against Cindie Harmon on behalf of Linda Ramsey and her daughter for “cyber stalking” (see Ramsey v. Harman, 191 N.C.App. 146, 661 S.E.2d 924 (2008).

According to the Complaint, Ramsey had allegedly posted information on a website stating the daughter harasses other kids at school and being the reason other kids “hate to go to school.” Defendant’s website also featured: a voice recording of plaintiffs’ deceased mother and grandmother and references to Linda Ramsey as being a “crow,” “idiot,” and “wack.”

Judge Foster found that the “Defendant has harassed plaintiffs within the meaning of N.C. Gen.Stat. §50C-1(6) and (7) by knowingly publishing electronic or computerized transmissions directed at plaintiffs that torments, terrorizes, or terrifies plaintiffs and serves no legitimate purpose.” However, the case was vacated on appeal because the Judge did not find that the Defendant had placed the Plaintiff in fear for her safety, or the safety of her family or close personal associates or had caused the person substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and in fact had caused that person substantial emotional distress.

The Ramsey case suggests that a civil no contact order can be entered for cyber stalking but the proof required is greater than offered at the trial in that case.

Though it is a relatively new law, a 50C can help protect you. It broadens the court’s power to protect your safety and well-being.

The government’s solution to close the loophole was to amend the Gun Control Act in September 1996, resulting in the domestic violence amendment, 18 U.S.C. § 922(d)(9) and 18 U.S.C. § 922(g)(9), commonly known as the “Lautenberg Amendment.” The Lautenberg Amendment prohibits all persons convicted of misdemeanor crime of domestic violence from shipping, transporting, possessing or receiving firearms or ammunition. Furthermore, it also prohibits knowingly selling or providing a firearm to a person who is known to have a domestic violence conviction. The constitutionality of the law was unsuccessfully challenged in a couple of cases.^b

The Gun Control Act, specifically the Lautenberg Amendment, applies retroactively and prospectively to the previously exempt groups of current military service members and recruits. The Department of Defense has taken the Lautenberg Amendment seriously by distributing memorandums that direct the military branches to alert service members of their continuing affirmative obligation to report qualifying convictions. The Department of Defense does allow branches to determine whether to give a reasonable time to seek expungement or pardon of a qualifying conviction.

There are possible exceptions that allow service members to avoid discharge due to a qualifying conviction of domestic violence. The Department of Defense interprets the Lautenberg Amendment to not apply to major military weapon systems or “crew served military weapons and ammunition (tanks, missiles, aircraft, etc.).” In addition, it is conceivably possible to receive reassignment to a position that does not involve use of weapons or ammunition, but this likely mean a loss of rank. These are exceptions in cases of domestic violence, and the Department of Defense will not easily allow a service member to escape discharge.

In North Carolina, domestic violence includes more than just physical assault. N.C. Gen Stat. § 50B-1 defines domestic violence in relevant part as:

a) Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or

(2) Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3, that rises to such a level as to inflict substantial emotional distress; or

(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.

The definition likely includes harassment on the Internet or phone. The divorce process can create tension and arguments, and many people vent on the Internet. It is important to keep a cool head rather than sending a threatening email or posting “fighting words.”

Domestic violence is an especially serious issue for service members returning from combat. Prosecution of these acts by a civilian or military court can lead to devastating consequences. For instance, if left undiagnosed or untreated, post traumatic stress disorder (PTSD) may lead to physical and verbal aggression. The flashbacks associated with PTSD can lead to threats against spouses and/or children. In 2007, a Navy doctor sent a memorandum to colleagues that warned, “If adjudication of misconduct charges results in a less-than-honorable discharge, the Marine may lose eligibility for ongoing treatment in the Veterans Administration health care system.” Not only will the service member lose their job, they may lose veterans benefits and discontinue treatment for PTSD.

All military service members should carefully consider that a plea bargain of guilty will trigger the Lautenberg Amendment. It is unlikely to stop prosecution of a serious domestic violence incident. However, in cases of mere heated arguments, a “no fault” settlement is a possible way to prevent triggering the Lautenberg Amendment. Your attorney can immediately contact opposing counsel and suggest methods of “no-fault” settlement, including possession of the residence, division of items of personal property and, if necessary, some measures of interim support for the wife or children. The parties may want to agree to a consent order that discourages harassment and threats. You should carefully consider your attorney’s advice to give a little extra to your spouse because it is likely a better option than losing your livelihood.

Both service members and spouses may seek limited assistance from the JAG office, but usually only the first spouse to consult the office will receive assistance. Take the initiative to get treatment and counseling for PTSD, but if you are accused of domestic violence then consult your JAG office and/or a licensed criminal or family law attorney. An upcoming Rice Law blog article will discuss several laws that assist domestic violence victims to continue to receive government benefits and to enforce court orders on military property.^c

Footnotes

a) Frank Raleigh Lautenberg is a United States Senator from New Jersey that introduced and sponsored the Domestic Violence Offender Gun Ban, known as the “Lautenberg Amendment.”

b) The purpose of this article is to impress on military service members some of the important provisions of the Lautenberg Amendment. The reader interested in learning more should contact a licensed attorney in their jurisdiction.

c) The US Army reports that 27,973 of its troops were dismissed from service on punitive discharges from October 2002 to May 2009.

References

See United States v. Emerson, (No. 99-10331) (5th Cir. 2001); Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th Cir. 1999); and, United States v. Waters, 23 F.3d 29 (2d Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).

An accusation of domestic violence against a law enforcement officer will likely lead to an interrogation. North Carolina has considered more procedural protections for accused officers in the legislation entitled The Law Enforcement Officer Discipline Act. Law enforcement personnel are protected in some states and departments by a peace officer’s bill of rights. Not all states have adopted the peace officer’s bill of rights. The bill of rights usually ensures that the officer is questioned in a civil and reasonable manner. Law enforcement officers accused of domestic violence should take advantage of their right to have representation present at an interrogation. The lawyer should ensure that the officer receives a recording or transcript of the proceeding. (Source: When the Batterer is a Law Enforcement Officer: A guide for Advocates, http://www.bwjp.org, Battered Women’s Justice Project, Diane Wetendorf.)

Department of Defense Policy Memorandum on the Lautenberg Amendment, David S. C. Chu (Source: www.ricefamilylaw.com.)

Military misconduct may be sign of PTSD, http://www.washingtontimes.com, Amanda Carpenter.

Domestic Violence Problems, Protections and Practice Tips, http://www.washingtontimes.com, Mark Sullivan.

1. Mums the Word

Don’t tell anyone what you are doing and don’t leave a paper trail through e-mail, credit cards, checks, cell phone bills, or strange people calling your house asking for you until you are legally separated.

2. Lawyer Up

Seek the advice of a divorce attorney who practices NC family law before you do anything. Action (and/or inaction) can significantly affect the outcome of your divorce, alimony, child support, property division, and more. Don’t screw up by trying to do it yourself! There are many pitfalls and traps to handling your own divorce. Remember the old adage: “The lawyer who represents himself has a fool for a client.”

a. Paperwork Traps
John* downloaded a form from the Web or got a form from the library and signed it with his wife, Sue*, only to spend more than twice the normal litigation costs trying to set aside the document, correct problems with it or find that it is enforceable to John’s detriment.

b. Decision Traps
Sue agrees to a property settlement without considering John’s pension because she did not know what property to consider as marital or failed to conduct discovery resulting in the loss of her share of the biggest asset they had together. John agrees to pay $800 per month in child support to Sue when the guidelines would have only required $600 per month. Sue leaves the kids with John for a week and then she takes them for a week. By the time the couple gets to court, Sue doesn’t like this arrangement but the Court finds this is the status quo and should be maintained pending a final hearing.

c. Information Traps
There are some things you really should not tell your spouse if you are getting divorced. Don’t talk about extramarital affairs. If asked under oath, you must be truthful. But at this stage, you need counsel on what to do and what not to do.

d. Other Traps
There are many other traps. Obviously, we can’t teach you three years of law school in one article! See our article on selecting a divorce attorney. Even if you can’t afford a full service law firm, you can consider unbundled services where the lawyer does part of the work (e.g., prepares pleadings, agreements) and the client acts as their own lawyer.

3. See a Counselor

Make sure that both your heart and your head want the divorce. If you have not tried marital counseling, try it. If your spouse will not go, go by yourself. We ask all of our clients if they are sure they have exhausted steps to save their marriage and truly desire a divorce. Despite this, many reconcile after the lawsuit is filed. Even if you are absolutely sure you want a divorce, talking to a counselor may help you (and your children) make a more healthy transition. If you have children, the counselor can give you good advice on how to tell the kids. Save yourself time and money and the potential damage done by the litigation process itself and talk to a counselor. If you need a referral, call Rice Law PLLC at (910) 762-3854.

4. Copy

Make copies of everything you will not be able to put your hands on after you separate (e.g., children’s school records, medical records, pictures, tax returns, pay stubs, routine bills, credit card statements, wills, deeds, copy of titles to cars and boats) and store these copies off-site. If you take originals, you are responsible for safeguarding them and may have to return some or all to your spouse. The trunk of your car is not off-site! Buy a file cabinet and store it in a relative’s or friend’s garage, or rent a safety deposit box or storage unit.

5. Stay Put (for Now)

Stay put until you do #1 and #2—unless you are the victim of domestic violence. Your attorney will advise whether it is best for you to leave the marital residence. If your spouse is abusive, seek immediate help from a domestic violence shelter in your county; don’t follow the steps enumerated above—seek immediate help!

6. Safeguard Communications

While you are still living together, it is not a crime in the State of North Carolina for your spouse to snoop through all of your stuff. He/she may even put spyware on your computer to monitor your activities. Consider getting a P.O. Box to receive secure mail, open a new e-mail account (e.g., gmail) to receive secure e-mail, and check your e-mail account on a computer to which your spouse does not have access.

7. Safeguard Assets

Beginning right now, start taking out or making a list of things to take out of the house that are your purely personal possessions and cannot be replaced (e.g., class ring, heirlooms, children’s photographs). When you separate, you may need to freeze or close certain accounts. You may need your attorney to obtain an injunction preventing you and/or your spouse from disposing of certain assets. Talk to your attorney for instructions.

8. Open Bank Account

Go ahead and open a checking/savings account at a different bank from where you and your spouse currently bank. You will have to account to your husband/wife for the funds you deposit before date of separation but you will need a separate account.

9. Apartment/House Hunt

You may need a temporary place to stay. If you have children, the temporary home should be conducive to their needs (e.g., separate bedrooms). Investigate your options and the cost.

10. Get Support

You may need short term financial support from your family to help cover the costs of moving, attorney fees, and living costs during the transition. You may also want to consider attending a divorce support group or a cooperative parenting program to learn how children of divorce are affected and what you can do to help them cope.

Published August 27, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

*Author’s Note: This article is not intended to be a comprehensive analysis of the steps you should take when contemplating a divorce. “John” and “Sue” are fictional characters who do not represent real people but who do represent true situations. We strongly encourage you to consult with a licensed Divorce Attorney in the State of North Carolina before taking any action.