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Domestic Relations

Domestic Relations – Parent & Child – Custody & Visitation – Fiance’s Intended Adoption (access required)

Best v. Gallup When the defendant-mother brought her plaintiff-fiance into the family unit, gave him decision-making authority with regard to the minor child, allowed the child to call the (now former) fiance “Daddy,” and allowed the fiance to share in her custody of the child without creating an expectation that the relationship would be terminated, the mother acted inconsistently with her paramount parental status.

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Domestic Relations – Equitable Distribution – Arbitration — Real Property – Investment & Retirement Accounts (access required)

Barton v. Barton Where the defendant-husband engaged in frequent trading activity during the parties’ marriage, and the investment account increased in value by $201,937, the arbitrator could conclude that the account’s increase in value, after the date of marriage and before the date of separation, was not passive appreciation and was property acquired by the marital estate. We affirm the trial court’s order adopting the arbitration award in part. We reverse and remand in part.

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Domestic Relations – Alimony – Termination – Cohabitation – Consent Order – Property Settlement – Reciprocity Provision (access required)

Underwood v. Underwood Even though the parties’ consent order covered property settlements as well as alimony and stated that its provisions were reciprocal, the mere incantation of the phrase “reciprocal consideration” does not render alimony nonmodifiable. Since the defendant-wife is cohabiting, the trial court correctly terminated the plaintiff-husband’s alimony obligation.

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Domestic Relations – Parent & Child – Custody – Modification Motion – No Substantial Changes – Attorney’s Fees (access required)

Romney v. Romney Contrary to the defendant-father’s argument, the original consent custody order did include findings of fact as to circumstances; in fact, the trial court found some circumstances had changed, including the child’s improved school performance and the diagnosis and treatment of the child’s ADHD with the support of both parents. We affirm the trial court’s determination that there had not been a substantial change in circumstances which materially affected the welfare of the minor child. We affirm the trial court’s dismissal of the father’s motion to modify custody. We also affirm the trial court’s order requiring the father to pay part of the mother’s attorney’s fees.

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Domestic Relations – Alimony – Duration & Amount – Attorney’s Fees (access required)

Dorwani v. Dorwani Even though the plaintiff-wife is eligible to receive social security benefits as the surviving spouse from a prior marriage, these benefits are insufficient to meet her needs. Moreover, the trial court found that the defendant-husband is relatively young, healthy, well-educated, and capable of substantial earnings; on the other hand, plaintiff is much older, in poor health, comparatively uneducated, and unqualified for employment which could provide a substantial income. Contrary to defendant’s argument, plaintiff is not capable of the type of work, nor is she eligible for the amount of social security benefits, necessary to meet her needs.

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Domestic Relations – Parent & Child – Support – Modification — Incorporated Separation Agreement – Automatic Increases – Unenforceable – Support During College (access required)

Wilson v. Wilson The separation agreement that was incorporated into the parties’ 1988 divorce judgment required the defendant-father to increase his child support payments whenever he received a raise or bonus; however, such automatic child support increases do not take into account all of the factors required to modify child support, such as the needs of the children. We reverse the trial court’s order requiring the father to pay $23,921 in past due child support.

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Domestic Relations – Civil Practice – Rule 41 Dismissal – Failure to Prosecute – Lesser Sanctions – Local Rules (access required)

McKoy v. McKoy The trial court dismissed defendant’s equitable distribution counterclaim under N.C. R. Civ. P. 41(b) and Rule 11 of the Wake County Family Court Rules, but the trial court failed to make findings of fact or conclusions of law indicating that it considered lesser sanctions. We vacate the trial court’s order dismissing defendant’s equitable distribution counterclaim and remand for further findings.

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Domestic Relations – Adoption – Fraud – Civil Practice – Appeals – Transcript (access required)

Graham v. Keith Where G.S. § 48-2-607(c) provides a legal route pursuant to which adoption may be set aside for fraud, and where the trial court determined that the underlying adoption was void for fraud under § 48-2-607(c), we reject defendants’ argument regarding public policy favoring the finality of adoptions. We affirm the trial court’s order setting aside defendants’ adoption of plaintiff’s daughter.

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Domestic Relations – Civil Practice – Rule 41(b) Dismissal – Inadequate Findings – Contempt – Appeals (access required)

Church v. Decker Even though plaintiff failed to appear at a hearing on his own motions, the trial court’s order dismissing plaintiff’s motions pursuant to N.C. R. Civ. P. 41(b) does not show that the court considered lesser sanctions before dismissing the motions. We reverse the dismissal of plaintiff’s motions and remand for further proceedings. We also reverse the trial court’s order holding plaintiff in contempt and remand for further proceedings.

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Domestic Relations – DVPO – Subjective Fear – Firearms Surrender (access required)

Howe v. Howe The plaintiff-wife testified that she feared that, since the defendant-husband wasn’t getting his way in the court’s custody proceedings, she was in fear of imminent bodily injury because “it’s just a matter of time before you do something because you’re not getting your way.” This testimony as to the wife’s subjective fear of the husband supports the trial court’s finding that the husband placed the wife in fear of imminent serious bodily injury.

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