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.

“G.S. sec. 1A-1, Rule 40(b) provides that “[n]o continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.” A motion for a continuance is addressed to the sound discretion of the trial court, and is generally not favored. A court’s ruling on a motion for a continuance is not reviewable absent a clear abuse of discretion. The burden of showing sufficient grounds for a continuance rests with the party seeking it.  Id.  (Citations omitted).”

The burden of proof rests on the moving party to demonstrate sufficient grounds justifying the continuance. See May v. City of Durham, 136 N.C.App. 578, 581, 525 S.E.2d 223, 227. When ruling on a motion to continue the trial judge must consider not only the grounds given for the motion, but “whether the moving party has acted with diligence and in good faith, and may consider facts of record as well as facts within his judicial knowledge.”  See Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 464, 466, 602 S.E.2d 721, 723-24 (2004).

In Pickard Roofing Co., 94 N.C.App. at 691, 381 S.E.2d at 343, on the day before trial the court denied defendant’s motion for continuance.  Defendant proceeded to trial Pro Se, and the court found in favor of the plaintiff. Id. at 691.  The appeals court affirmed the trial court’s denial of defendant’s motion for continuance. Id.  The court compared its facts to those of Fungaroli v. Fungaroli, 40 N.C.App. 397, 252 S.E.2d 849 (1979) in which the appeals court affirmed the trial court’s denial of the plaintiff’s motion for a continuance.  In Fungaroli the trial court allowed plaintiff’s attorney to withdraw one day before trial, and it concluded that “plaintiff had sufficient time to employ new counsel” despite having only a few days to hire new counsel for trial. Id. at 397.

In summary, you may or may not get a continuance.  When you ask for one, do it in writing in advance and attach an Affidavit under oath stating the reasons that you need a postponement of the hearing or trial.

Topics will include:

• How to make sure a business will continue in the event of death, disability or divorce
• How to guarantee a buyer for your business in case of death, disability or divorce
• How to make sure a spouse (yours or your partners) does not wreck your business in the event of a divorce
• Financial planning tools to get the most out of your business when you retire and want to sell out or pass the business on to children.

Your host will be Mark Spencer Williams, Esq. an attorney who focuses his practice on family and business law and actively litigates such issues at the trial and appellate levels.

Featured guest speaker will be Peter Starr, a nationally recognized financial advisor based in Wilmington who will share money making ideas that will help you get more money out of your business in tax efficient ways.

Please Join Us for Lunch at the Port City Chop House on
Tuesday, March 27, 2012 at 12 Noon Sharp!
1981 Eastwood Road
Wilmington, NC 28405

Space is very limited!  Please RSVP to Eva Lorberfeld at (910) 762-3854 no later than Monday, March 26 or by email elorberfeld@ricefamilylaw.com

1. Communicate — It is important that both parents communicate with each other about issues affecting your child. When the school sends home information concerning a parent-teacher conference, grades, a book drive, etc., notify the other parent and give them a copy so that they can participate. If you schedule an appointment for the child like a doctor’s appointment, notify the other parent so they can participate. The more information that flows from one parent to the other (and vice versa), the better. Many custody orders require the “free flow of information” between parents about the child. When you do communicate, use the telephone! You can’t believe how negative it is to go into a custody trial and have a parent testify that they try to call the other parent to discuss their child but all they get is voicemail with no return calls or worse that both communicate exclusively by text or email. An exhibit showing the texts and emails exchanged can be disastrous especially if they include barbs and jabs at the other parent that have nothing to do with raising a child. The judge simply does not want to see comments about the father’s “whore girlfriend” and will hold that type of bad conduct against the parent who can’t get past her hard feelings to focus on what is best for the child. Also, communication is not just talking but also listening. Ask the other parent for his or her opinion about issues and listen to what he or she actually says. One tool that helps some parents communicate (and third parties like mental health therapists or attorneys police the communication) is Family Wizard.
2. Don’t put the child in the middle – The child is a child and should not be burdened with the parents’ problems nor empowered to make decisions as if they are an adult. While children can have a say in where they want to live, it is ultimately the judge’s decision and the judge will usually tell the child it is his or her decision and the child’s input will only be a factor and not the final say. Simply put, you are putting too much pressure on a child of any age to ask them to choose. Moreover, if you empower the child to decide this issue now when things don’t work out with the parent they chose, they may think they can change their mind and move to the other parent’s house causing disciplinary problems in both homes and playing one parent against the other. Parents should refrain from discussing the litigation with the child. Also, never say anything negative about the other parent in the presence of the child. Neither party should do anything that diminishes the bond that the child has with the other parent. And don’t use the child to send messages to the other parent (don’t even send the child support check in the child’s backpack).
3. Be accountable – Children are smart. Don’t pretend to be something you are not. If you are fighting for custody because your lawyer told you that you will not have to pay as much child support or because you are concerned about what your mom or some other family member might think, your child will know that you truly do not want to have them with you 24×7. If you are living a lie under any circumstances, you may be alienating yourself from your own child.
4. Make transitions easy – Remind your child they will be spending time with their mom or dad in advance and help them look forward to the time with their mom or dad. Help get them packed and ready for pickup on time. Allow the child to take toys, cell phones, clothing and other items back and forth between the houses so that they will be comfortable having their stuff. When your child returns, don’t question them about the other parent, their house, what they did, etc. If they want to share, they will.
5. Have faith in the other parent — you picked him or her to have a child. Have faith that this person you choose will not put your child at risk. If you have genuine concerns that he or she will put your child at risk, that is something you need to address with the other parent and/or with your attorney.

You should speak with your attorney because every situation is different.  For example, if there is domestic violence, these tips may not be practicable.  However, generally following these tips will improve circumstances for your child whether you are in a battle for custody or not.

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.

Ms. Lieu sought to dismiss the claims on the basis that the torts infringe her constitutional rights under the First and Fourteenth Amendments to the US and North Carolina Constitutions. Specifically, she argued that alienation of affection and criminal conversation are unconstitutional as a violation of due process liberty and privacy interest as well as equal protection rights under the federal and state Constitutions. Her argument relied primarily on the United States Supreme Court decision in Lawrence v. Texas which struck down a Texas law making it a crime for persons of the same sex to engage in certain intimate sexual conduct. In essence, Ms. Lieu argues that North Carolina’s alienation of affections and criminal conversation tort laws are unconstitutional because they allow the government to intrude on individual’s private decisions regarding sexual conduct and punish them for such decisions.

The trial court had granted summary judgment to the Plaintiff on the issue of criminal conversation after Ms. Lieu admitted in a deposition that she had sexual intercourse with Plaintiff’s husband while they were married and before their date of separation. This established liability as a matter of law. The trial court denied Ms. Lieu’s motion to dismiss and she immediately appealed to the North Carolina Court of Appeals. The Court of Appeals dismissed the appeal finding that the trial court’s order was not immediately appealable.

As a result, the case goes back to the trial court to determine liability for alienation of affections and determine the amount of damages to be awarded.  After that is concluded, the matter may go back to the Court of Appeals and perhaps even the Supreme Court after the trial court finishes the case.  Read the complete decision of Filipowski v. Lieu, ___ N.C.App. ___, ___ S.E.2d. ____ (2012).

Jeffrey and Lisa Hill brought suit against Stubhub and the seller of the tickets, Justin Holohan in October 2007 for, among other things, Defendant’s alleged violation of N.C. Gen. Stat. § 14-344, a statute making it unlawful to sell a ticket for more than $3.00 over its face value.

The trial court ruled in favor of the Plaintiffs on a Motion for Summary Judgment. However, the Court of Appeals reversed the trial court finding that Stubhub had immunity from the state statute under federal law that protects internet service providers from content published by a third party.

The case is being returned to the trial court. See the complete decision at Hill v. Stubhub, Inc. (COA 11-685).

]]> http://ricefamilylaw.com/blog/2012/03/06/after-four-years-north-carolinians-still-fight-over-hanna-montanna-tickets/feed/ 0 http://ricefamilylaw.com/blog/2012/03/03/pet-custody-in-north-carolina-fighting-over-cats-dogs/ http://ricefamilylaw.com/blog/2012/03/03/pet-custody-in-north-carolina-fighting-over-cats-dogs/#comments Sat, 03 Mar 2012 18:21:02 +0000 Mark Spencer Williams http://ricefamilylaw.com/blog/?p=994 Disputes over who gets the family dog or cat between divorcing couples are becoming more common.  In a 2006 survey by the American Academy of Matrimonial Lawyers (AAML), a quarter of respondents said pet custody cases had increased noticeably since 2001.¹

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).

Employers will continue to pay Social Security tax of 6.2% up to the taxable wage limit for each worker ($110,100.00 for 2012), as well as the 1.45% Medicare tax, with no limit.