Handout 1 - School of Government - University of North Carolina at ...

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sealed them and shipped them to the laboratory for testing, that she relied on the reports in the ordinary course of her business, and that the reports were collected as part of petitioner’s record in the case. A proper foundation did not require authentication by the person who made the records. 2. The court noted that it is “well established” that a trial court may take judicial notice of earlier proceedings in the same case and that the trial court is presumed to disregard any incompetent evidence. The court also found that the trial court’s findings were supported by testimony in the case and were not based on the prior orders. Dispositional Authority • Trial court did not have subject matter jurisdiction to order that the child be placed with a relative following termination of parental rights, because statute gives DSS exclusive placement authority when the child was in DSS custody at the time the termination petition or motion was filed. In re I.T.P-L., ___ N.C. App. ___, 670 S.E.2d 282 (12/16/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080622-1.htm Facts: DSS petitioned for termination of parental rights in the case of a child who had been adjudicated neglected and dependent, placed in the custody of DSS, and placed in foster care. After terminating both parents’ rights, the trial court granted legal and physical custody of the child to DSS but ordered placement with the maternal grandmother who was the guardian of the mother’s four other children, two of whom were also respondent father’s children. Both the parents and DSS appealed. Held: Affirmed in part and vacated in part. 1. The court rejected respondents’ arguments relating to a. subject matter jurisdiction, holding that the summons was sufficient when it named the child in the caption and was served on the child’s guardian ad litem. b. sufficiency of the evidence, where error had not been assigned to major findings or to the conclusion of law. c. timely appointment of a guardian ad litem for the mother, where the GAL was appointed 17 days after the petition was filed and three months before the hearing. d. best interest. 2. The trial court did not have jurisdiction to determine the child’s placement, because G.S. 7B-1112 gives DSS exclusive placement authority following termination of parental rights when the child was in DSS custody when the petition was filed. 14
CHILD SUPPORT AND PATERNITY Support Modification Devaney v. Miller, ___ N.C. App. ___, 662 S.E.2d 672 (7/1/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/070788-1.htm The court of appeals affirmed the trial court’s dismissal of defendant’s motion to modify a child support order, holding that: • when a child support order has been modified and a subsequent motion to modify is filed, the party seeking modification must show a change in circumstances since the date of the most recent order. • an allegation that the parties’ incomes have changed, by itself, is not sufficient to support a motion to modify a child support order. New Hanover Child Support Enforcement, obo Dillon v. Rains, ___ N.C. App. ___, 666 S.E.2d 800 (10/7/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/071286-1.htm Facts: Defendant appealed from an order increasing his monthly child support obligation from $300 to $591. Held: Affirmed in part, remanded in part. Business expenses. The court of appeals remanded for additional findings because the trial court’s findings were insufficient for a determination of whether the trial court applied the guidelines appropriately. The trial court determined defendant’s monthly gross income by dividing by 12 the amount deposited in his personal bank account in a year. Although defendant was self-employed and presented evidence of business expenses, the court’s order made no reference to business expenses. Other children in home. The court of appeals rejected defendant’s argument that the trial court made insufficient findings about expenses related to the parties’ other children. The order and work sheet reflected that each party was given a deduction for support of the other child in the party’s home. Detailed findings are not required and in this case the findings were sufficient. (The court noted that defendant’s deduction would change if consideration of business expenses resulted in a reduction in his gross income.) Child support as income. The court of appeals also rejected defendant’s argument that the trial court erred by including in the parties’ gross incomes the child support payments they received for other children, holding that the child support guidelines do not exclude child support from income. The court also noted that the majority of other states do exclude from income child support a parent receives for a child other than the one for whom support is being determined. The court also urged the Conference of Chief District Judges to consider the effect of not excluding support paid for another child and to indicate clearly in the Guidelines how child support paid for another child should be treated. Contempt Eakes v. Eakes, ___ N.C. App. ___, 669 S.E.2d 891 (12/16/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080248-1.htm Facts: Plaintiff (mother) and defendant (father) were divorced, and plaintiff was in possession of a $75,000 fund that belonged to defendant. A modification of an earlier child support order prohibited defendant from claiming the fund and required plaintiff to use it only to pay defendant’s child support arrears, to pay a specified portion of the monthly support defendant owed, for medical and related expenses specified in the parties’ separation agreement, and to pay defendant’s support obligation in the event he became unemployed and unable to pay. It also required plaintiff to provide an accounting within 60 days and every two years thereafter. Plaintiff nearly depleted the fund by using the money for vacations, vehicles, and personal bills. The court entered an order to compel an accounting, and defendant filed a motion for contempt, although no show cause order was entered. Fifteen months later plaintiff filed a motion to 15
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Page 4 and 5: 2. that respondent received mental
Page 6 and 7: 1. The trial court’s finding that
Page 8 and 9: • The trial court did not have su
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Page 12 and 13: petition to conform to the evidence
Page 16 and 17: dismiss defendant’s claims for fa
Page 18 and 19: settlement or other recovery by the

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