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Ashley Fillippeli Stucker | Nov 7, 2019

General Guidelines for Appealing a Court Order

Introduction If you had a court case that did not go as planned, you may have options available to you to remedy an improper judgment. The most common of these options is your right to appeal the judgment. In North Carolina, an appeal from the trial court for most civil cases, including family law cases, goes straight to the North Carolina Court of Appeals for review. The appellate process is lengthy, time consuming, and extremely detail-oriented; and to someone untrained in appellate law, there are many seemingly simple mistakes that can be easily made that may subject your appeal to dismissal. Additionally, most non-attorneys have very little idea of what an appeal actually entails. Learn below the general process and time frame of an appeal and the type of errors in the trial court from which an appeal may arise. Legal Basis for Appeal First, it is important to note that you cannot appeal a trial court decision simply because the outcome was not what you wanted - there has be a legal basis for your appeal. This generally means that the appellate court is not necessarily employed to re-determine what the actual facts of the case are, or whether the evidence presented at trial is accurate – rather, the function of the appellate court is to review the procedural aspects of the case and the evidence produced at trial to determine whether such procedures and evidence are proper and support the findings of fact and application of law made by the trial judge. As a disclaimer, there are hundreds of thousands of errors that could have been made at the trial level that could give rise to an appeal, and each different type of error has its own standard of review and analysis at the appellate level; and as such, this article could not possibly cover every single analysis and process for each different error. For example, procedural defects may form the basis of an appeal, which is generally a misapplication of, or failure to abide by, the proscribed Rules of Procedure for that forum, which, in turn, lead to a miscarriage of justice at trial. However, this article will discuss the two primary reasons clients seek an appeal in a family law case: (1) findings of fact not being supported by the evidence presented at trial; and (2) conclusions of law not being supported by the evidence presented and findings of fact made by the trial court. Standard of Review An appeal based on the party’s disagreement with the trial judge’s findings of fact or conclusion of law often depends on the standard of review applied at the appellate level. The standard of review is the “yardstick” that the appellate court uses, against which the trial court’s decision is measured. Most family law cases that are being appealed due to a perceived error in the findings of fact or conclusion of law made by the trial court are measured by the “abuse of discretion” standard. This is an important concept to understand prior to filing an appeal, as a solid understanding of what is actually being considered by the appellate court is essential to determine whether you actually have an appealable issue, as well as the likelihood of succeeding on appeal – particularly since this standard of review is not very forgiving and gives extreme deference to the trial court’s decisions. Under an abuse of discretion standard of review, the appellate court is bound by the findings of facts and conclusions of law of the trial judge, and the trial court’s decision will not be overturned on appeal except upon a showing that the decision was so arbitrary that it could not have been the result of a reasoned decision. In other words, the appellate court must determine whether the findings of fact made by the trial court were supported by competent evidence introduced at trial, and whether the findings of fact found by the trial judge support the conclusions of law made by the judge. Under the abuse of discretion standard, as long as there was competent evidence introduced at trial to support the trial judge’s decision as to the issue being appealed, even if there was also evidence presented to the contrary, the trial court’s decision will likely not be overturned on that basis alone. Appeals based on an error in the findings of fact or conclusions of law by the trial court in cases involving equitable distribution, child custody, child support, and alimony all apply the abuse of discretion standard. It is important to understand these standards of review and consider all of the evidence presented at trial with an open mind in order to determine the likelihood of a trial court decision being overturned by the appellate court and determining whether to move forward with an appeal. Notice of Appeal Once you have determined that you have a legal basis for an appeal, you must begin the appeals process by filing and serving a notice of appeal. The time for filing a notice of appeal is determined by (1) entry of the judgment being appealed from, and (2) when the order being appealed from is served on the parties. It is important to note that the “entry of judgment” that starts the time for filing an appeal does not necessarily begin when the trial judge announces their decision in open court, but rather the date that the court’s decision is reduced to writing, signed by the judge, and filed by the court. The notice of appeal must be filed within 30 days of entry of the trial court’s order, if the order being appealed from is served on the parties within three days of entry of the order. If the order is not served on the parties within three days of entry of the order, the notice of appeal must be filed and served within 30 days of service of the order being appealed from. As a practical matter, it is advisable to always plan on filing the notice of appeal or a motion to extend time to file the notice of appeal within 30 days of entry of the order being appealed from in order to avoid missing the deadline to file the notice of appeal. Once the deadline to appeal an order has passed, the party loses the right to make an appeal. Contract for Transcript of Trial Proceedings If the party appealing the judgment wishes to have a written transcript of the trial court proceedings for the appellate court to review, the party appealing the judgment must enter into a contract with a court reporter for a transcript of said proceedings within 14 days of filing the notice of appeal. This contract must be filed with the trial court and served on all other parties to the appeal within that same time frame. The court reporter then has 60 days from the date of the contract for the transcript to produce the transcript to the requesting party. It is the duty of the party appealing the judgment to ensure that the court reporter either produces this transcript within the 60 day time frame or files for an extension of time to produce said transcript. As a practical matter, the party appealing the judgment will need to request a copy of the recorded trial proceedings from the clerk’s office in the courthouse where the trial was held to provide to the court reporter who is transcribing the proceedings. Proposed Record on Appeal The next step of perfecting an appeal is to file a proposed record on appeal, which is served on the opposing party and settled as the final record on appeal either by agreement of the parties, operation of the Rules of Appellate Procedure, or by decision of the trial court judge. The proposed record on appeal must be prepared by the appealing party and served on all other parties to the appeal within 35 days of the date the court reporter certifies delivery of the trial transcript or 35 days from filing of the notice of appeal, whichever is later. If the opposing party has any objections, amendments, or proposes an alternative record on appeal, the opposing party has 35 days of service of the proposed record on appeal to serve the same. Within 15 days of settling the record on appeal, the final record on appeal must be filed and docketed with the clerk of the appellate court. Final Record on Appeal The final record on appeal is one of the most important aspects of an appeal, as it is what the appellate court reviews to be apprised of the procedural history of the case, facts of the case, evidence presented at trial, and issues on appeal, as well as to ascertain that all procedural requirements of the actual appeal itself have been complied with. In general, the record on appeal will contain anything that the appellate court needs to know in order to fairly and accurately review the trial court’s decision, and can include pleadings, the trial transcript, and even the exhibits admitted at trial. The most important take away in establishing a record on appeal is to remember that if the information or documentation is not included in the final record on appeal, the appellate court cannot and will not consider it. Additionally, failure to include all documentation and information required by the Rules of Appellate Procedure in the record on appeal, and even failure to abide by the mandated font and style requirements for a record on appeal, can subject an appeal to dismissal. The procedure, time frame, and contents of the record on appeal are addressed in a separate article, although because the Appellate Rules are so specific and nuanced, it is always best to consult an attorney to handle your appeal, specifically finalizing the final record on appeal and drafting the appellate brief, explained below. Appellate Brief After the record on appeal and all documents comprising the final record on appeal are filed and docketed with the appellate court, the clerk of court of the appellate court will mail the printed version of the record on appeal to all parties to the appeal. Within 30 days after the appellate court has mailed the record on appeal to all parties, the party appealing the court order shall file an appellate brief. The appellate brief is the appealing party’s written argument to the court. It contains a statement of the underlying facts of the case, statement of the procedural history of the case, the standard of review being applied at the appellate level, the issues being appealed, and a written argument supporting the party’s position, supported by statutory and case law. The opposing party has an additional 30 days to file their own appellate brief after service of the appealing party’s brief. It should be noted that it is imperative to have an attorney at this stage in the appeal. Once the briefs get filed with the appellate court, the appellate court can make their decision based solely on the arguments in the parties’ briefs and information contained in the record on appeal – so your brief must have a solid legal argument, statutory and case law to support your legal argument, and a correct application of the law to the facts of your case in order to succeed on appeal. Although there is also the possibility of appearing for an oral argument in front of the appellate court prior to a decision being made, most cases at the appellate level are decided based on the parties’ briefs alone – so it is very important to include your best arguments in the brief. Even if an oral argument is reached, there are no witnesses, no new testimony, and no new evidence produced – the appellate court’s decision is still based solely on the arguments made regarding the applicable law to the facts of the case. Conclusion Although this article covers the general procedure and deadlines for the appeals process, it is merely a brief summary of the most basic aspects of an appeal, and is in no way a substitute for a full and complete reading and understanding of the Rules of Appellate Procedure and specific requirements thereof. When it comes to appeals, it is always best to have an attorney who is practiced in appellate law to represent you.

Ashley Fillippeli Stucker | Nov 7, 2019

My Child Turned 18, Now What?

Introduction Most people mistakenly assume that once their child turns 18 or “ages out,” their court-ordered child support obligation for that child automatically terminates without further court action. While this may be true in some cases, the misguided belief that this occurs in all cases can often lead to catastrophic financial and legal consequences, particularly where a child support order provides for the support of more than one child, or in cases where there is a question as to whether the child support obligation has been terminated by statute. Statutory Law North Carolina General Statute §50-13.7(a) provides that a child support order in this State may be modified or vacated at any time only upon the filing of motion in the cause and a showing of changed circumstances by either party. However, N.C.G.S. §50-10 provides that a child support payment becomes vested when it is due to be paid; and after said payment is vested, it can not be modified, reduced, or vacated, unless (1) the party seeking to vacate or modify said child support amount files a written motion to do so before the child support payment becomes due; or (2) if the moving party is precluded by physical disability, mental incapacity, indigency, misrepresentation of another party, or other compelling reason from filing a motion before the payment is due, then promptly after the moving party is no longer so precluded. In short, what this means is that, unless there is no question that the child support obligation is terminated statutorily, or the parent paying child support has filed a motion to modify or terminate their child support payment prior to the date that said payment is due, the paying parent is still obligated to make that child support payment as set forth in the court order – even if they believe that they are no long obligated to do so. What do I mean by “aged out?” Although it is not exactly a formal legal term, it generally means the age or time that a parent could terminate their child support obligation by statute under North Carolina law. North Carolina General Statute §50-13.4 provides that a child support obligation terminates when a child turns 18 years old, unless one of the following applies: (1) the child is legally emancipated, at which point child support payments would be terminated; (2) if the child is still in primary or secondary school when the child turns 18, unless a court orders that child support terminate upon age 18 or prior to high school graduation, then a parent’s child support obligation continues until the first of the following: (a) the child graduates from high school; or (b) the child otherwise ceases to attend school on a regular basis; or (c) the child fails to make satisfactory academic progress towards graduation; or (d) the child reaches age 20. After reading all of this, you may still be asking yourself “if the statute provides that it terminates at that time, why isn’t it an automatic termination? Why do I have to go back to court and get another court order?” The answer to those questions depend on the facts and situations of each case. Child Support Termination - One Child If the parties have only one child for whom a parent is responsible for paying child support, termination of child support is a bit simpler than those cases where parents have multiple children who are covered under the child support order. If the child is still in high school when he turns 18 and graduates from high school shortly thereafter with no issues towards progressing towards graduation or ceasing to attend school on a regular basis, the child support obligation would automatically terminate upon his or her graduation. Or, if the child turns 18 after he or she graduates from high school, the child support obligation would automatically terminate on the child’s 18th birthday. Easy enough, right? Wrong. Let’s say the parties have one child together, for which the child support obligation is $1,000.00 per month. The parties’ only child turns 18 in October of 2019, during the child’s senior year of high school, with an anticipated high school graduation date of May 2020. The child is making decent grades in all of his classes except for one class that he is failing, which prevents the child from graduating in May 2020. The child ends up having to repeat his senior year and graduates in May 2021. However, the parent paying child support believes that, because the child failed his senior year the first time, the child is no longer making satisfactory academic progress towards graduation, and therefore that parent’s child support obligation should be terminated. Because of this belief, the paying parent unilaterally stops paying child support for the child in May of 2020 when the parent realizes that the child will have to repeat his senior year of high school. Was that parent correct in unilaterally terminating their child support obligation in May of 2020, or was the parent actually obligated to continue paying child support until the child’s actual graduation in May of 2021, when the child was 19 years old? Since there is no straight line definition for what is considered “satisfactory academic progress towards graduation” or “attending school on a regular basis,” the answer to that question is in the discretion of the judge; and by making a unilateral decision of what those terms mean to you and failing to satisfy your child support obligation based solely on your belief alone, you may be opening yourself up to a bevy of financial and legal repercussions, including subjecting yourself to contempt of court. For example, in the scenario above, let’s say that the parent receiving child support files a motion to hold the other parent in contempt for not making child support payments from May of 2020 to May of 2021. The judge agrees with the parent that is owed child support that the child was, in fact, making satisfactory academic progress towards graduation from the time he turned 18 up to his graduation in May of 2021. The court could now find that the parent obligated to make child support payments is not only in contempt of the parties’ child support order, but also owes the other parent $12,000.00 in child support arrears. Had the paying parent simply filed a motion to terminate his or her child support obligation in May of 2020 prior to any further child support vesting, he or she would have known whether their child support payment was terminated or not; and, more importantly, could have avoided being held in contempt and having to pay a substantial lump sum payment to purge himself or herself of that contempt. Child Support Termination or Modification - Two or More Children A common misconception in cases where there are two or more children is the assumption that a modification or reduction of a parent’s child support obligation happens immediately and without further court order upon the occurrence of one of the statutory termination factors for the oldest child, such as the oldest child turning 18 or graduating from high school. Unfortunately, that is not the case in North Carolina. When there is more than one child for whom support is being paid under a child support order, the obligation never terminates for the oldest child or reduces automatically when the oldest child ages out, unless the original support order specifically allocates the amount of support to each child or addresses the reduction of the child support obligation upon one child aging out, which is rare. As such, to reduce your child support obligation in a case with one or more children, you must get a court order reducing said child support obligation. A common misconception that arises in this scenario is the belief that the parties to a child support order can agree amongst themselves to a reduction in the child support amount without further court order; however, this is not allowed in North Carolina. The only time a court ordered child support amount may be modified is by another order of the court - the parties cannot unilaterally agree, without court order, to reduce the child support obligation for the remaining child or children after one child ages out, or for any other reason. The fact that the parents may agree at some point in time to reduce the child support payment voluntarily does not bind the court to that agreement or the reduced amount. What this unfortunately can mean is that, even after agreeing to voluntarily reduce the child support obligation, the parent receiving child support could subsequently motion the court to hold the paying party in contempt for non-payment of the full, court-ordered child support payment at any time, and the court will then determine the issue of contempt and child support arrears owed based on the full, court-ordered child support obligation. Thus, it is extremely important in such situations to consult an attorney regarding when and how your child support obligation may be terminated or modified, and discuss what your options are moving forward.

Sandra Maria Holt | Nov 4, 2019

Does a separate bedroom for the child matter in custody cases

Best Interests Matter most - not bedrooms Recently a potential client asked -- May a divorced parent share custody of children if she has no separate bedroom for them? The divorced parent wants to have custody of child in a trailer. Answer: A child doesn't "NEED" a separate bedroom and in fact most people in the world do not have the luxury of separate bedrooms for each child. In fact, I didn't grow up with my own bedroom and many American children do not either. Still, what matters most is "how" the lack of a bedroom affects the child, if it affects her at all. So you have to ask yourself, "why, does it matter that the child does not have his/her own separate bedroom?" Doe she child "need" more privacy based on the specific circumstances of the case? Is she required to sleep in a common area where it is too loud, too illuminated, or too many people coming and going so he can't sleep? Is there a 3rd party non-relative living there and the child is older and should have privacy? Is the lack of privacy affecting her grades, her self-esteem, her hygiene, is she being exposed to intimate moments between the parent and a 3rd party? Does he have emotional/psychological needs that require him to have a safe and quiet place to decompress? These are some of the reasons that may dictate that the child must have his or her own bedroom. If the other parent cannot afford more room that should not be the only reason that the other parent loses custody or has her custody reduced. Besides, it is almost always in the child best interests to spend time with both parents so the child will spend at least some overnights there even if the child won't live there 35-50% of the time (noting that both parents have shared physical custody when both have at 35% of the overnights with a child). What matters most is the quality of the living arrangement. Does she Mom provide for all of the child's needs in her trailer? Does she provide emotional support? Is she physically and emotionally present for the child? Is the trailer and the neighborhood safe? Is there enough food, clothes, books, toys, space, etc.? If so, then the lack of a traditional bedroom will be less important. Child's Basic Needs Judges do not award custody to the richest parent. The Court simply wants to know if you, as a potential custodian, have enough time and love to give to a child - love and quality parenting time are a child's most basic needs. When it comes to what you have -- a Court wants to know if you have ENOUGH food, ENOUGH clothes, books, toys, and space for your child. It is not a contest about who has the most. Many loving parents work too much and therefore they are just not able to have a lot of custodial time with a child. While that is sad, sometimes that is completely necessary in order to financially provide for the child. In those circumstances, it is best to fashion a schedule where you can be emotionally available (no phone, no friends over, no dates, etc.). Kids do not "need" separate bedrooms of fancy gaming stations -- they need a parent's love and time.

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Naval H. Patel

Naval Patel

Family attorney