Pending bills would revamp points of family practice

By PAUL THARP, Staff Writer

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Matters at the heart of the practice of family law in North Carolina are the focus of several bills pending in the state’s legislature this spring.

Two bills address the payment of child support by non-parents, two would alter provisions relating to protective orders and one would mandate the awarding of attorney’s fees to prevailing defendants in cases.

Bills in the House and Senate would provide relief to men ordered to pay child support who can demonstrate that they are not the biological fathers of the children they are supporting.

The House bill, sponsored by Rep. Sarah Stevens, R-Alleghany, would amend G.S. § 50-13.13 to provide a means for some men to seek relief from a child support order.

H. 55 “was brought out of a sense of fairness and justice,” Stevens told Lawyers Weekly. She said support should be paid to children in North Carolina, but it should be paid by the true parents.

“When a putative father has been misled or thinks he is the father because of some misrepresentation, and he can prove through genetic testing that he is not the father, he should have a way to set aside a child support order,” Stevens said.

Under the bill, a motion can be brought in a pending child support action or as an independent civil action, but it must “be filed within one year of the date the moving party knew or reasonably should have known that he was not the father of the child.”

A court may grant relief if a putative father can prove by clear and convincing evidence both that “[t]he results of a valid genetic test establish that the moving party is not the child’s biological father” and that the movant has either “not acknowledged paternity” or “acknowledged paternity without knowing that he was not the child’s biological father,” the bill says.  

The bill passed the House on March 1 on a vote of 115-0. It passed first reading in the Senate and is currently in the Judiciary II committee.

Senate paternity legislation

Sen. Floyd B. McKissick, D-Durham (pictured above), is sponsoring a bill that would establish a process to set aside paternity in limited circumstances.

McKissick told Lawyers Weekly he had been approached by several district court judges who expressed concern that men ordered to pay child support who can prove that they are not the biological fathers have no remedy at law to extinguish the support.

“Our goal is to provide a good public policy remedy that many judges have indicated would be appropriate,” McKissick said.

Under S. 203, DNA evidence would be required and would only affect cases in which children were born outside of marriage.

“We shouldn’t have a policy that says if you are not the parent of a child, you still have to pay support,” McKissick said.

 Divorce defaults and ex parte orders

Stevens is also sponsoring a bill – H. 589 – that would delete the word “divorce” from G.S. § 50-10, meaning the material facts of a divorce complaint would no longer be deemed denied absent an answer.

Stevens said that will enable attorneys to seek entries of default in divorce cases.

But Manteo attorney Mark Spence (left) prefers the existing law. He said the presumption that divorce complaint allegations are deemed denied is good law because “the ramifications of a divorce judgment are too far-reaching to allow default judgments without judicial review of the facts.”

Charlotte attorney Preston Odom (pictured below) said the law would create few differences for how family law attorneys handle such cases. 

In fact, “seeking an entry of default might actually be more cumbersome than seeking summary judgment, which lawyers can do now,” Odom said.

H. 589 would also require a finding in ex parte orders granting possession of a residence to an aggrieved party that the other party “has attempted to cause, or has intentionally caused, bodily injury to the aggrieved party or a minor child.”

Spence said that part of the bill appeared to be in response to the abuse of the statute by spouses seeking to gain possession of the marital residence.

Stevens said it was. “There has to be more than a threat to justify kicking a spouse out of the house,” she said. And the bill provides a stricter timeframe for setting a hearing on the order, she added.

Spence said the existing law “has gone way beyond its original intent or its current need.”

Stevens is also sponsoring H. 660, which would allow civil no-contact orders to be served in accordance with G.S. § 1A-1, Rule 4(j). Previously service under Rule 4(j) was not allowed.

The current G.S. § 50C-9 requires service of civil no-contact orders by the sheriff. Under the new law, orders could be served by delivery, by process server, by registered or certified mail, by “designated delivery service” or by mail with signature confirmation.

Stevens described the change as a technical correction to harmonize service requirements for G.S. § 50C orders with G.S. § 50B and other orders. 

Alimony matters

A bill filed April 7 by Rep. Johnathan Rhyne Jr., R-Lincoln, would amend G.S. § 50-16.9 to establish a rebuttable presumption that the voluntary retirement of a supporting spouse who attains the age of 67 is not an action in bad faith.

Rhyne stressed that the rebuttable presumption in H. 706 will be that retirement at age 67 or above is a change in circumstances, not that alimony should stop.

“It will get the supporting spouse into court, but it won’t determine the outcome,” Rhyne said.

The act would also validate postnuptial agreements under G.S. § 52-10 that bar post-separation support or alimony as long as the contracts are made in writing and notarized.

Under current law, spouses can settle the terms of equitable distribution but not alimony in postnuptial agreements, so it is impossible to provide for a comprehensive postnuptial settlement, Rhyne said.

The change will reduce the incentive for parties to artificially separate after one spouse’s misconduct in order to avoid the appearance that the aggrieved spouse condoned the conduct, he said.

“If parties can settle the alimony issue, it may allow them to reconcile and keep the marriage going,” Rhyne said. 

Attorneys’ fees for winning defendants

A caucus of businessmen in the Senate is sponsoring a bill that would “establish as a general rule in civil actions that prevailing defendants be awarded attorneys’ fees.”

Sen. David Rouzer, R-Johnston, is S. 108’s primary sponsor. The bill passed first reading in the Senate and has been in its Judiciary I committee since Feb. 23.

Odom said the interplay between the proposed law and provisions under current law that award attorneys’ fees to prevailing parties would cause confusion.

“Courts would have a hard time harmonizing this general mandate with more specific attorney fee provisions,” he said.

Spence called the bill ludicrous. “I believe Rule 11 is sufficient to limit frivolous litigation if properly applied,” he said.

Rouzer did not respond to Lawyers Weekly’s requests for comment.

Pending family law legislation

H. 55: Relief from child support order where obligor is not the child’s father

• Motion must be brought within one year of discovery
• Genetic testing required
• Clear and convincing evidence standard

H. 589: No “deemed denied” in unanswered divorces

•  Would enable default judgments in divorces
•  Constrictions on domestic violence protective orders
• Child support cessation for early college enrollees

H. 706: Tweaks on alimony, support and spousal contracts 

• Changes to alimony and post-separation support 
• Rebuttable presumption of good faith change above age 67 
• Postnuptial agreements harmonized with prenuptial/separation agreements

H. 660: Allows service by mail of G.S. § 50C orders

• A needed technical change, per bill’s sponsor

S. 108: Mandates attorney’s fee awards to prevailing defendants

• Attorneys express concerns about interplay with other fee provisions