Woodruff Family Law Group here in Greensboro, North Carolina concentrates on guiding clients through today’s legal, financial and psychological divorce environment to develop creative solutions tailored to your unique situation.
Often people assume that if alimony is awarded, a husband will have to pay it to his ex-wife. However, based on consideration of certain statutory factors, alimony can also be awarded to an ex-husband and a wife may be required to pay it. In a recent North Carolina alimony appellate decision, a wife appealed from the court’s award of alimony to her husband. The couple had met online. The husband lived in India but moved to the U.S. to be with the wife. They married in India, but separated while living in the States. During the marriage, the wife allegedly subjected the husband to emotional and mental abuse.
The husband sued for divorce and alimony. In 2015, the appellate court had affirmed the lower court’s grant of divorce but reversed its award of alimony. In 2016, the lower court entered an order that awarded the husband alimony, among other things.
The wife appealed the award of alimony. She argued there was no subject matter jurisdiction for the alimony award, claiming that the lower court was required to recognize the annulment she got in India in 2011, one month after the husband sued for divorce. The appellate court explained that neither of the spouses was domiciled in India when she got the annulment, and so the lower court hadn’t made a mistake in not recognizing the annulment. In North Carolina, foreign divorces and annulments don’t need to be recognized where neither party had domicile in the jurisdiction that granted the annulment or divorce. It noted that domicile describes someone’s established and permanent home, and that even if someone has more than one residence, there is only one domicile. Domicile is changed by actual abandonment of some other domicile, intent to stay in a new place indefinitely or permanently or physical residence in a new place.
A 529 Savings Plan allows parents to put aside money for their kids’ college expenses under tax-favorable conditions. How should trial courts classify the money in a 529 Savings Plan that is created and funded during marriage when a couple is getting a divorce?
In a recent North Carolina marital property appellate decision, a mother argued that contributions to a 529 Savings Plan were a gift to the children, rather than marital property to be divided. Alternatively she requested that the court carve 529 Savings Plans from the marital estate by creating a rule to treat the property differently from other marital assets.
The appellate court rejected her arguments, explaining that the beneficiaries of the plan didn’t have ownership of the funds, and the people participating in the plan could choose not to spend the money on education and after paying a penalty could spend it on something different. Accordingly, contributions aren’t gifts. The court also explained that it didn’t have the authority to create a way to carve 529 Savings Plans from the marital estate. It reasoned that the General Assembly was the governmental body with this authority, and that its role was to consider the purpose of marital funds to determine equitable distribution.
The facts that led to this decision are relatively straightforward. After being married for more than 20 years, a couple separated in 2012 and divorced in 2014. The couple both held engineering degrees. The husband was employed, earning more than $300,000 each year. The mother was a stay-at-home mother. They had six kids and had started 529 Savings Plans for several of them, funding the plans with the husband’s income. They designated the mother as a plan participant and owner.
The husband sued for equitable distribution. The court decided that dividing the property unequally was equitable. The mother got 57% of the marital estate, and this included the 529 Savings Plan, as well as the couple’s home. She appealed.
The appellate court considered how funds held in a 529 Savings Plan should be classified. It reasoned that in an equitable distribution proceeding, the lower court has to classify property as separate, divisible, or marital and then distribute it under N.C. Gen. Stat. § 50-20. Any property acquired but given away to a third party, including a gift to minor children, isn’t subject to being equitably distributed. The mother argued that since the kids were listed as plan beneficiaries, the money in the 529 Savings Plan was not part of the marital estate.
The appellate court explained that in order to be considered a legitimate gift, there must be donative intent and actual or constructive delivery. These two work in conjunction, as the present intent to gift property needs to be accompanied by delivery and the delivery has to take away right, control and title over the property.
In this case, the couple’s contributions to 529 Savings Plans weren’t gifts. The tax implications of these contributions were discussed at length by the lower court. How these plans were treated for taxes didn’t determine ownership. Rather the issue was whether the couple had given an ownership interest in the funds to their kids, and therefore divested themselves of an interest. They hadn’t. The plan participants had control and ownership of the accounts.
The mother argued that classifying a 529 as marital property had negative policy consequences, posing the danger that the spouse who got the plan might have to use the funds for something that wasn’t the kids’ education. The appellate court found the argument compelling, but reasoned the court wasn’t the appropriate place for this argument.
The mother also argued that certain factual findings weren’t sufficient to support the lower court’s judgment. Specifically, she argued that the court hadn’t made a finding regarding the couple’s income, property and liabilities. The appellate court agreed. She had given evidence she had no income while her spouse earned more than $300,000 each year and this was relevant to whether there should be a more unequal division of property.
The appellate court explained that the lower court didn’t have to list all potentially relevant proof, but in this case it had incorrectly stated that there was no evidence to support that factor in dividing the property more unequally. It affirmed the classification of the property, including the 529, but sent the case back to address the insufficient factual finding.
If you are concerned about property division during a divorce, it is important to hire knowledgeable legal counsel. Call the Woodruff Family Law Group at 336.272.9122 or contact us via our online form.
In a recent appellate court decision that discusses an aspect of North Carolina custody law, a mother appealed from an order that granted her and the father joint custody of teenage children pending the start of a reunification program. The program was supposed to fix the kids’ relationship to their father, which the court determined was damaged by the mother’s alienating conduct.
The order gave the father primary physical custody of the children after starting the program, while the mother’s visitation with the kids would be temporarily suspended pending the program’s completion. The order also directed that the kids go to private or public school, instead of being homeschooled by their mother.
The case arose in connection with three children born from a couple’s marriage. The father demanded custody when they were older because the mother had committed adultery. The mother responded to the father’s complaint and letter by taking the kids to South Carolina and cutting off the father’s contact. The father filed a motion for emergency custody relief, claiming the mother had a relationship with someone in Sweden and that she planned to go there with the kids despite his objection. He was worried the mother would take the kids and not come back. The court granted him temporary exclusive custody of the children in an emergency order.
When the mother returned to North Carolina, the parents agreed to a rotating schedule for physical custody. In 2015, the father moved for a custody evaluation and argued the mother wasn’t following the schedule they’d agreed upon and that instead she was alienating the kids from him.
The lower court entered a consent order that appointed a forensic custody evaluator. She was supposed to look at the parents’ behavior and their mental health and make recommendations about treatment if needed. The court updated the earlier order and gave the parents joint physical custody on a rotating schedule.
The father again moved for a custody modification due to the mom’s refusal to follow the order. He claimed the mother had acted to alienate the sons from him. At a permanent custody hearing, the mother moved to exclude the custody evaluation report of a doctor. This motion was denied and the doctor was accepted as an expert. The court ordered that the mother would have no contact with the kids until she completed a particular program.
She appealed and argued that the court should have excluded the doctor’s expert testimony because it wasn’t relevant or reliable and that the court shouldn’t have suspended her visitation. The appellate court explained that expert testimony must: (1) be based on technical, scientific or specialized knowledge that would help a trier of fact understand evidence, (2) the expert has to be qualified as such by education, training, experience, knowledge or skill, and (3) the testimony must be reliable in that: (a) it is based on enough data or facts, (b) it must be the product of reliable methods or principles, and (c) the witness applied the methods and principles reliably to the facts of the case.
The doctor’s testimony met all the above criteria and she’d spent a year on her custody evaluation. The appellate court found no abuse of discretion. Similarly, it found there was no abuse of discretion with regard to the temporary and conditional suspension of the mother’s visitation. The lower court had ample evidence that the mother intentionally tried to alienate the children’s love for their father and that this was harmful to their welfare. It also found that the expert’s testimony that the mother had started to use homeschooling as a weapon to damage the children’s relationship with the father was supported.
The order was affirmed.
If you are facing fraught issues in your North Carolina child custody dispute with your soon-to-be ex-spouse, you should consult dedicated family law attorneys. Contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
Growing up in a tiny town near Greensboro, N.C., I can remember being a kid and playing in the yard, getting skinned knees and bee stings. That’s what we did “back then.” I remember picking up pecans and climbing trees and riding my bike. We had a rotary dial telephone. What is that you ask? It’s a telephone that had a dial with holes in that had a handset attached to it with a curly cord, and the entire thing was attached to another cord that made it work! We did not have air conditioning until I was about 12 years old. Window fans were placed in our windows to draw the hot air out of the house, and indoor box fans blew hot air around inside the house. We had a gravel driveway, and I sometimes had to help fill in holes in the driveway with a rake or a shovel so we wouldn’t blow a car tire driving in and out of it. Listen to this; we did not have a weedeater!!! I can, believe it or not, remember using handheld clippers and having to go around the outside of the house and flower beds and trim the weeds BY HAND!!
My grandfather used to take my sister and me to a nearby store, and we got to pick a bottle of Coke out of the metal cooler and play pinball while he sat around and discussed world issues with the other locals. Getting that Coke and playing pinball was the highlight of my week. Grandpa would give me a quarter to clean his glasses with a paper towel and soap and water. A quarter! My other favorite thing was going to Woolworth and my mother buying me a 45 rpm vinyl record that I could play on my red, plastic record player that I worshiped. By the way, I was only allowed to get the record if I had been good that week, and if I didn’t get one, I was devastated. We hung our clothes on the clotheslines behind our house in the mornings and took them off the clotheslines in the afternoons, and if a storm sprung up, we had to run outside and snatch them off quickly, before the rain started.
I am not going to reveal my age but trust me; my upcoming birthday is a milestone birthday. In my mind, I’m still that little girl, but when I look in the mirror, I get a shock! Sometimes, people say, “you should be thankful to have a birthday, think about the alternative.” I am very thankful. I am also very thankful to have air conditioning, a washer and dryer, a paved driveway, a weedeater and a cell phone that can play music at the touch of a finger.
The custodial parent must not decrease the status of the other parent in the child’s eyes. That is fundamental.
Also fundamental: Do not place the child in the middle of the parent’s dispute.
Woncik versus Woncik, from the court of appeals in North Carolina is instructive on the two fundamental principles mentioned above. The plaintiff Darlene Woncik is the mother and Edward Woncik is the father. The case is 1986 North Carolina case but still instructive on child custody.
As an attorney practicing in family law in the Piedmont, and a mother of two young children, my world can feel very hectic. It is easy to give in to the stressors of the moment, to be overwhelmed and to feel like you do not have control. Whether caring for my children, listening to others discuss their parenting struggles or helping clients prepare for court, a useful activity I have found to manage this stress is practicing mindfulness.
Mindfulness can simply be described as being fully aware of your present surroundings, and how it affects your thoughts, feelings, and body. The practice of mindfulness is focusing on the moment you are in, and regaining control. While this is a simple concept, using this technique takes some practice. While in the courtroom or on the witness stand clients will often become agitated, frustrated or emotional over what is transpiring around them. This happens in parenting situations as well. While these emotions are valid, they usually don’t help achieve our goals. While there is a multitude of online resources, below are basic steps for practicing mindfulness.
1) Take a deep breath. While it sounds trivial, a deep breath gets oxygen to your brain, helps to slow an elevated heart rate, and brings your focus to your body. It is a good way to start an inventory of your current physical and emotional state.
The following represents the personal and respected view of the writer and not the view of Woodruff Family Law Group.
I am definitely not a political aficionado, nor do I follow politics terribly closely. However, out of curiosity, I have found myself listening to and reading about the Kavanaugh case. When I talk to someone about this issue, I feel like I have to really think about what I’m saying and how I’m saying it so that I don’t offend anyone. With the #metoo movement in full force, anything that anyone says can easily cause offense or be twisted to mean something else whether spoken by a male or female.
By no means, am I condoning the actions of anyone that has assaulted, raped, molested or de-humanized another person. As a female, I have had my share of unwanted advances, touches, verbal abuse, and completely uncomfortable situations. In my teenage years, SOME of the boys were way more aggressive than others. Although a smaller, thinner me, I was very clear about what was crossing the line and I would not hesitate to express my disgust and make it known that I would not put up with anything that I did not consent to. One Saturday, while my best friend’s boyfriend was waiting for her at my house, I felt uncomfortable to the point of locking myself in the bathroom to get away from him. Of course, I told my boyfriend about it, and it became a “he said, she said” situation. From that moment on, I avoided him at all costs. At this point in my life, if this unnamed person was to run for a public office or some high-ranking position, would I tell anyone what happened back in high school? My situation was not an assault, just an uncomfortable circumstance but could have turned into something much worse. If he had gone on to be a consummate professional and adult, I’m sure I would not say anything. Sometimes choices made as a teenager are just bad decisions or choices. That does not mean that you will be a failure as an adult.