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

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dismiss defendant’s claims for failure to prosecute. Nine months after that the court entered an order denying plaintiff’s motion to dismiss and holding plaintiff in contempt for using the funds for improper purposes. Held: Affirmed. 1. Although the trial court referred to the fund as a “constructive trust,” the case was properly in the district court because it was a contempt hearing in a child support case, not a trust accounting over which the superior court would have jurisdiction. 2. Defendant had standing to bring the matter before the court because he had a substantial interest in how the fund was used. 3. The trial court did not abuse its discretion when it denied plaintiff’s motion to dismiss for failure to prosecute. 4. The order holding plaintiff in civil contempt was supported by the evidence and findings. Assessment of Attorney Fees in IV-D Case Guilford County obo Holt v. Puckett, ___ N.C. App. ___, 664 S.E.2d 362 (8/6/08). http://www.aoc.state.nc.us/www/public/coa/opinions/2008/070761-1.htm Facts: The child support agency brought an action on behalf of Holt, seeking paternity establishment, support, and past paid public assistance from Puckett. After a paternity test excluded the defendant, the action was voluntarily dismissed. The trial court granted defendant’s motion for attorney fees and ordered Holt to pay a portion of defendant’s attorney’s fees. Held: Reversed and remanded. 1. Attorney fees cannot be awarded in a paternity action pursuant to G.S. 50-13.6. In the court’s discretion, however, they may be assessed as costs under G.S. 6-21. 2. The trial court abused its discretion in ordering Holt to pay attorney fees. The county, not Holt, initiated the action, in which she was required to participate and cooperate. The trial court did not find that she was acting dishonestly or in bad faith. The court said that assessing the fees against her was both inequitable and contrary to the statutory scheme and purposes. 3. The court noted that the agency could have avoided litigation altogether by contacting the defendant and obtaining a paternity test before filing the action. It would be more equitable, the court said, to assess fees against the county. On remand the court said that the trial court could, “in its discretion, make findings of fact and conclusions of law determining whether plaintiff, not Holt, should bear any portion of defendant’s attorney’s fees.” Dissent: Judge Hunter dissented and would have held that the trial court did not abuse its discretion in awarding attorney fees. The dissent noted (1) that there is no precedent for the position that “bad faith” must be shown before attorney’s fees can be awarded as costs and (2) that the majority discussed the “principles of equity” in relation to plaintiff, but not in relation to defendant. Paternity Helms v. Landry, ___ N.C. App. ___, 671 S.E.2d 347 (1/6/09). http://www.aoc.state.nc.us/www/public/coa/opinions/2009/080033-1.htm Facts: The parties were never married, and their child was born in 1999. In 2001 both parties filed civil actions for custody of the child. The court joined the two actions and in 2002 entered an order finding that the parties were the child’s biological parents and giving custody to Mother (defendant) and visitation to Father (plaintiff). In 2005, based on a substantial change of circumstances, the court gave permanent legal and physical custody to Father and visitation rights to Mother. In 2007, Mother filed a motion seeking a DNA test to determine paternity, alleging that Father had never legitimated the child or sought a judicial determination of paternity. The trial court dismissed the motion with prejudice on the basis that it was not timely and had no basis in law or fact. Mother appealed. 16
Held: Reversed and remanded. 1. The court of appeals rejected Mother’s argument that the trial court’s 2002 finding that Father was the child’s biological father was not based on any proof or proper legal proceeding for legitimation, because those issues were not addressed in the trial court or preserved for appeal. 2. The court of appeals, however, agreed with Mother that the trial court should have ordered a paternity test pursuant to G.S. 8-50.1, because a. Father had never obtained a judgment of paternity; b. Father had never acknowledged paternity by affidavit under G.S. 110-132(a); and c. “a question of parentage” arose when Mother contested Father’s paternity. Dissent: Judge Jackson dissented from the second holding above on the basis that paternity was judicially established by the 2002 court order and Mother neither appealed nor made a timely motion under G.S. 1A-1, Rule 60(b), for relief from the judgment. Legitimation In re Papathanassiou, ___ N.C. App. ___, ___ S.E.2d ___ (2/3/09). http://www.aoc.state.nc.us/www/public/coa/opinions/2009/080095-1.htm Facts: Months after the child was born in 1998, respondent, who was married to the child’s mother, learned that he was not the child’s biological father. He continued to act like the child’s father, however, and he and his wife had another child. The parents separated in 2002 and were divorced the following year. In 2005, petitioner filed a special proceeding to legitimate the child. After a hearing the clerk declared the child legitimate, declared that petitioner was the child’s father, and order that the child’s birth certificate be changed accordingly. Respondent appealed to superior court, de novo. Petitioner filed motions in limine asking that respondent be prohibited from offering “best interest” evidence and a motion for summary judgment. The court granted the motion for summary judgment and entered an order legitimating the child and directing that the birth certificate be changed. Respondent appealed, arguing that summary judgment was not proper because, even though he admitted and a test showed that he was not the child’s biological father, an issue of fact regarding the child’s best interest remained. Held: Affirmed. The court of appeals concluded that the legislature has not required a best interest determination in a legitimation proceeding and that the only issue for the court in such a proceeding is whether the petitioner is the child’s biological father. Therefore, summary judgment was proper. Other proceedings, the court said, provide vehicles for determining custody and other issues relating to the child. Medicaid Reimbursement OTHER • North Carolina’s statutory scheme for determining Medicaid reimbursements is reasonable and complies with federal law as interpreted by the U.S. Supreme Court. Andrews ex rel. Andrews v. Haygood, 362 N.C. 599, 669 S.E.2d 310 (12/12/08). http://www.aoc.state.nc.us/www/public/sc/opinions/2008/057-07-2.htm Facts: Minor plaintiff brought malpractice action seeking recovery for injuries she suffered at birth. The case was settled, and the Division of Medical Assistance (DMA) sought reimbursement from the settlement for the amount Medicaid had paid for the plaintiff’s medical expenses. The settlement did not specify what portion of the settlement amount was for medical expenses. The subrogation statute, G.S. 108A-57, gives the state or county subrogation rights to all of a Medicaid recipient’s rights of recovery for medical expenses up to the amount paid by DMA but not exceeding one third of the judgment or 17
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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
Page 10 and 11: Guardian ad Litem for Parent In an
Page 12 and 13: petition to conform to the evidence
Page 14 and 15: sealed them and shipped them to the
Page 18 and 19: settlement or other recovery by the

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

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