While you may have learned some of these concepts during your equitable distribution trial, anyone seeking to appeal an equitable distribution order should first understand the general equitable distribution framework.  “Equitable distribution” refers to the legal process used to divide marital property, assets, and debts when a married couple divorces.  Note that in North Carolina it is “equitable” distribution, not “equal” distribution.  Property is supposed to be divided fairly, which may or may not mean equally.

The Court must first classify all assets and debts as either marital, separate, or divisible property.  “Marital property” generally includes assets and debts acquired by either spouse during the marriage but before the date of separation. The date of the final divorce decree really doesn’t matter.  

“Separate property” includes property which belongs to only one of the spouses.  Generally, but not always, separate property was owned by that party before the marriage, or it is derivative of property owned by that party before marriage.  Separate property can also arise from gifts or from the active and exclusive efforts of one spouse, although timing is critical.  Finally, “divisible property” includes some but certainly not all changes to the value of marital assets and debts after the date of separation but before the date of distribution.

Once the court has sorted the assets and debts into these three categories, it must distribute the marital and divisible property, while permitting the owner of any separate property to keep that property.  The court begins with the presumption of an equal fifty-fifty division of the total value of the sum of the marital and divisible property and debts.  That is the most common split of assets.  

The court also begins with a presumption that it will divide the assets and debts using “in-kind” distribution.  For example, if the marital estate consists of two cars, some jewelry, and some furniture, one could expect one spouse to get a car and the jewelry while the other spouse gets a car and the furniture, presuming that division gives each party somewhere close to 50% of the value of the marital estate.  Of course an exact split is rarely possible, so the court will then equalize the division by having one spouse pay cash to the other.  This cash payment is called a distributive award.

Classification Errors

One major source of error in equitable distribution orders arises when the court does not classify the asset correctly.  It may seem like classification should be relatively simple, based on the time that the person obtained the property.  Nonetheless, a myriad of rules exist that can make these distinctions more subtle.  For example, if one spouse owns a home before the marriage, and the married couple then lives in the home during the marriage, does the home remain the original spouse’s separate property?  What if the original spouse pays the mortgage on the home using income he earns during the marriage?  What if the other spouse stays in the home after the date of separation and continues to pay the mortgage until the equitable distribution trial?  Some of the rules which apply to these situations are intuitive; some seem completely unfair but nonetheless are controlling.

Errors In The Findings

Another type of error arises when the court decides to depart from some of the presumptions already discussed (like the presumption of a 50-50 split, or the presumption that the marital estate will be divided through in-kind distributions).  In those situations, the court must make findings of fact related to particular factors.  If the court fails to make those findings, then the Court of Appeals will instruct the court to reconsider its order and to make new findings.  The court may also err when it does makes the required findings, but those findings are not based on competent evidence.  

Comprehensive Review

You can quickly see that the division of a marital estate can present a lot of opportunities for the court to make errors.  These opportunities only compound when the estate contains multiple assets and debts, as almost every estate does.  Some assets “jump out” as particularly important, like the valuation and distribution of the marital home.  Other assets and debts may escape notice.  Most people have multiple credit cards, and they may have multiple car loans.  Retirement accounts can accumulate over the years as people pass through different jobs.  One bank may host a whole series of sub-accounts, from checking to money market accounts.  

If a divorcing spouse does not want to “leave money on the table,” then the attorney for their appeal should take each asset and debt, one by one, and examine whether there are any winning arguments for that particular item.  For example, in a recent case handled by this firm, the client initially reached out because she did not feel that the distribution of three or four of the assets and debts had been fair.  By the time this firm reviewed the entire case and briefed it to the Court of Appeals, we had raised thirteen different issues!

Experience Counts 

Appealing an equitable distribution case therefore requires an experienced attorney who has a keen eye for the various rules and exceptions that apply.  Surprisingly, then, potential clients rarely ask these two critical questions when interviewing appellate attorneys for an equitable distribution case:

1. Have you had success before appealing an equitable distribution appeal?
2. When was the last time you handled an equitable distribution appeal?   

Every attorney is going to have his share of wins and loses.  As I often tell clients, even if you’re making lemonade, you have to at least start with some lemons.  No attorney can turn every case into a winner.  Sometimes the facts and evidence simply do not support a win.  Having some wins does show, however, that the attorney knows what it takes to review, develop, and ultimately argue a case when the equitable distribution order contains (arguable) errors.

Having recent experience with equitable distribution appeals helps for two main reasons.  First, the law governing equitable distribution can change significantly, instantly making old arguments based on old cases obsolete.  A significant revision to the controlling statute, N.C.G.S. § 50-20, occurred less than a year ago.  

Second, recent experience provides some assurance that the attorney actively works in this field.  If any attorney claims he can do a great job representing you but hasn’t handled an equitable distribution appeal in ten years, he may simply not know what he’s talking about.  

Example Cases

Potential clients should be careful in setting their expectations about their particular equitable distribution case based on their attorney’s wins in prior cases.  Again, every case differs in its facts, and even the best attorney cannot win every case.  Nonetheless, the following cases handled by this firm give some examples of the sorts of issues which might be raised in your case.

In Dalton v. Dalton, a couple with a fairly typical portfolio of assets, but also with a few rental properties, went through equitable distribution.  This firm represented the Husband on appeal, and raised eight ways in which the trial court erred, including:

(1) incorrectly valuing the marital property interest and divisible property interest of the Davis property;

(2) miscalculating the marital property interest of the Frances property;

(3) incorrectly valuing the divisible property value of the Wildflower property;

(4) incorrectly concluding it could only value the properties based on appraisals;

(5) incorrectly valuing the marital property interest of the Honda Odyssey and failing to calculate and distribute the divisible value;

(6) incorrectly valuing the marital property interest of the Dodge truck and failing to make a finding regarding its divisible value;

(7) incorrectly finding the parties valued Defendant’s Vanguard IRA by agreement;

(8) failing to order an in-kind distribution of assets; and

(9) failing to make findings regarding the costs of liquidating assets in order for Plaintiff to pay the distributive award.

The resulting opinion by the N.C. Court of Appeals reversed and remanded on most of those issues, saving our client a significant amount of money.

Other cases, like Gien v. Gien, have a more limited number of issues.  In that case, this firm argued about the valuation of two business interests which the Husband had acquired.  The Court of Appeals agreed with our argument as to one of the businesses, which resulted in a six-figure win for our client.

Quite recently, this firm won an appeal in Wheeler v Wheeler, an unusual case in that the trial court deviated significantly from the normal 50-50 default division of value.  This firm argued on appeal that the deviation was not supported by the court’s findings of fact, since the court had relied on findings of the Husband’s “wrongdoing” for allegedly committing acts of domestic violence.  Equitable distribution must be based on purely economic factors, not on finding the “good guy” and the “bad guy.”  The Court of Appeals remanded the case to the trial court for new findings and a new division.

Sometimes equitable distribution cases can intersect with other types of law as well.  In Bradley v. Bradley, this firm represented a Wife who had filed for equitable distribution in North Carolina.  The Husband, who lived in New Jersey, wanted the case conducted in New Jersey, where he believed he would get a more favorable result.  The case ultimately became about a legal concept known as personal jurisdiction.  This firm prevailed, and the Wife was able to pursue her claims in her home court here in North Carolina.

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In June 2016, after being in foster care for several months, a child of Mr. Hayes’ client was determined by the State to be abused and neglected. The trial court entered an order establishing a permanent plan for the child, with adoption as the first choice and custody/guardianship as the second choice. After this order, Mr. Hayes’ client filed a timely notice to preserve the right to appeal. A little over a year later, the trial court entered into an order terminating Mr. Hayes’ client’s parental rights based on a finding of neglect and willful failure to make reasonable progress in correcting the conditions leading to the removal of the child from the home.

The Court of Appeals agreed with Mr. Hayes that the trial court erred in eliminating reunification as a permanent plan for his client’s child without making the necessary findings under the statute. One of the statutory sections that would allow for termination of reunification did not apply to Mr. Hayes’ client in this case, so the trial court had to demonstrate that a plan to reunite Mr. Hayes’ client with her child “clearly would be unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C. Gen. Stat. § 7B-906.2(b) (2017). On appeal, the Court found the trial court did not make the necessary findings under that statutory section, and similarly that it did not make the requisite written findings based on the four-part inquiry of another section of the statute. Because the trial court did not make “any of the findings” required to take away family reunification as an option, the Court of Appeals vacated the trial court’s order against Mr. Hayes’ client. In re L.A.G., No. COA18-283 at 8.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

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After entering into a contract for the transcript, a court reporter or other designated transcriptionist creates the transcript from notes and audio recorded during the proceedings. However, sometimes the transcript may be incomplete or missing key parts, stemming from either human or technological error, which can deprive the moving party of meaningful appellate review.

For instance, in State v. Yates, No. COA18-158 (N.C. Ct. App. Oct. 16, 2018), Mark L. Hayes won a new trial for a client on appeal whose right to a meaningful appeal was denied after the recording equipment at trial malfunctioned, preventing the court reporter from producing a full verbatim transcript of the proceeding. There, the North Carolina Court of Appeals applied a three-part test to determine whether the right to a meaningful appeal was lost, ultimately holding the right had been denied and Mr. Hayes’ client was entitled to a new trial. However, each legal case has its unique set of factors considered in a judgment, and you should consult with a licensed attorney to determine the viability of your appeal.

Retaining seasoned appellate counsel to move forward with your case helps to ensure that each part of your appeal occurs smoothly. Mr. Hayes has worked on nearly two hundred appellate cases at all levels and also has experience in providing consultation services to trial attorneys.

To aid in the understanding of the appellate process, the Law Office of Mark L. Hayes has composed an informative, one-hour Continuing Legal Education video, approved by the North Carolina State Bar Continuing Legal Education department, titled “Appeals In North Carolina: First Steps.” The video presentation, a link to which may be found below, grants an overview of the appeals process in North Carolina, useful for both practicing attorneys and non-attorneys who simply want to understand the process. The CLE explores how to determine whether a case is ripe for appeal, if proper notice has been given, and how to obtain the transcript for appeal. Within each of these three crucial categories, Mr. Hayes discusses special considerations and details, which could derail the appeal if they are not handled properly.  

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The Law Office of Mark L. Hayes is in a unique position as one of a small number of firms in North Carolina that practices solely in appellate law. Mr. Hayes has represented clients on appeal in nearly two hundred cases at all levels, including the North Carolina Supreme Court and the Supreme Court of the United States. With years of experience in appellate matters, Mr. Hayes is versed in applying and arguing under the different standards of review used in North Carolina and their respective analyses.

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On appeal, Mr. Hayes was unable to get the full transcript of his client’s trial court proceedings due to a malfunction with the recording equipment which left out an important chunk of the trial. Mr. Hayes argued that his client was denied a meaningful appeal due to the missing portion of the transcript and the trial court erred in denying his client’s motions to dismiss for insufficiency of the evidence. To first determine whether the right to a meaningful appeal was denied, the Court applied a three-part test:

(1) has the defendant “made sufficient efforts to reconstruct the [proceedings] in the absence of a transcript?”;

(2) have those “reconstruction efforts produced an adequate alternative to a verbatim transcript—that is, one that would fulfill the same functions as a transcript . . . ?”; and

(3) “whether the lack of an adequate alternative to a verbatim transcript of the [proceedings] served to deny any [defendant] meaningful appellate review such that a new [trial] is required.”

First, Mr. Hayes argued sufficient efforts were made to reconstruct the missing portion of the transcript by preparing a narrative form script of the missing time, but that was still an inadequate replacement. The Court agreed with Mr. Hayes on the first prong, for Mr. Hayes contacted the presiding trial judge, the prosecutor, the court reporter, and defense attorneys requesting their recollection of the portion of the trial missing from the transcript. None of those parties responded and Mr. Hayes again attempted to obtain a response which he never received. On the first prong, the Court found Mr. Hayes’ repeated efforts to pursue the content of the missing transcript was “better practice” necessary to satisfy the burden of reconstruction. Yates, No. COA 18-158 at 8.

The Court also found for Mr. Hayes’ client on the second prong in that the reconstruction efforts did not produce an alternative which would function as if the transcript were not missing parts. The failures to communicate by trial counsel, et. al. resulted in Mr. Hayes being unable to produce a reconstructed alternative to the official transcript.  

Lastly, Mr. Hayes argued, and the Court agreed, that the incomplete transcript denied his client meaningful appellate review because the missing part included cross-examination of the alleged victim. Mr. Hayes argued that without that testimony, the State could not present a prima facie case. Mr. Hayes also raised multiple issues regarding pretrial motions, testimony, and closing arguments which could not be pursued on appeal without the missing transcript content. The State argued because Mr. Hayes’ client was unable to identify specific issues, his argument was speculative. However, the Court found Mr. Hayes’ client had demonstrated he was prejudiced because he was unable to identify those specific errors due to the lack of the full transcript and awarded Mr. Hayes’ client a new trial.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

The post Winning Appeal: State v. Yates appeared first on Mark L. Hayes – Appellate Attorney.

North Carolina Rule of Appellate Procedure Rule 3 mandates the notice of appeal be filed “with the clerk of superior court.” Failure to adhere to this rule will result in dismissal of the appeal, only reviewable by petition for writ of certiorari. In North Carolina, “’our Courts have frequently observed that a writ of certiorari is an extraordinary remedial writ.’” Ehrenhaus v. Baker, 243 N.C. App. 17, 32, 776 S.E.2d 699, 709 (2015) (quoting Branch Banking and Trust Co. v. Peacock Farm, Inc.,     N.C. App.    ,    , 772 S.E.2d 495, 500 (2015)).

Next, consider North Carolina Rule of Appellate Procedure Rule 4, which states that a party to a criminal case may appeal orally at trial or by filing a notice of appeal with the Clerk of the Superior Court. In contrast, under North Carolina Rule of Appellate Procedure Rule 3, governing appeals in civil cases, oral notice of appeal is not allowed.  

Even if a party looking to appeal recognizes how and where their notice of appeal must be filed, there are many different issues of timing, content, and service, to name a few considerations that must be strictly followed for a viable appeal. Attorneys new to the appellate process may not be aware of each element of those requirements.  

To aid in the understanding of the appellate process, the Law Office of Mark L. Hayes has composed an informative, one-hour Continuing Legal Education video, approved by the North Carolina State Bar Continuing Legal Education department, titled “Appeals In North Carolina: First Steps.” The video presentation, a link to which may be found below, grants an overview of the appeals process in North Carolina, useful for both practicing attorneys and non-attorneys who simply want to understand the process. The CLE explores how to determine whether a case is ripe for appeal, if proper notice has been given, and how to obtain the transcript for appeal. Within each of these three crucial categories, Mr. Hayes discusses special considerations and details, which could derail the appeal if they are not handled properly.  

The post First Steps in an Appeal: Notice of Appeal appeared first on Mark L. Hayes – Appellate Attorney.

At trial, Angram involved a man who withdrew a large sum of money from his credit union and was later robbed at gunpoint when he returned home.  The State’s theory for the robbery was that one of the credit union employees, who had a child with Mr. Hayes’ client’s brother, called Mr. Hayes’ client to inform him of the withdrawal and the victim’s address, and that Mr. Hayes’ client then informed and encouraged his brother to rob the victim at gunpoint. At trial, Mr. Hayes’ client was charged with, but not convicted of, conspiracy to commit robbery with a dangerous weapon. Mr. Hayes’ client was however convicted of robbery with a dangerous weapon based upon a theory presented by the State of aiding and abetting his brother, who in a separate, earlier trial, had been convicted of the robbery.

The State’s aiding and abetting jury instruction relied on two theories: either Mr. Hayes’ client communicated with his brother or Mr. Hayes’ client drove his brother to the victim’s house. The State’s aiding and abetting theory was propped up only by the basis of the underlying relationship of Mr. Hayes’ client, Mr. Hayes’ client’s brother, and the credit union employee. However, all four employees working the day of the robbery used their cell phones while the victim was at the bank and all were questioned by law enforcement. Additionally, the credit union employee implicated here did not personally assist the victim.

Mr. Hayes argued that the two theories underlying the instruction for aiding and abetting were not based on any substantive evidence and the State failed to present sufficient evidence to support a valid inference of either theory. The Court of Appeals agreed with Mr. Hayes, reasoning that “[t]he State’s argument requires not just one but at least three layers of inference built solely on knowledge of [the victim’s] transaction and [the credit union employee’s] phone call with the father of her child.” Angram, No. COA19-151 at 9 (emphasis in original). In finding for Mr. Hayes’ client, the Court pointed out that the State attempted to rely on a detective’s interview of Mr. Hayes’ client’s brother which was not entered into evidence, but in fact used only for the purposes of impeachment, which cannot be used to support a substantive claim. Additionally, the Court could not determine from the transcript of the trial court if the credit union employee actually called Mr. Hayes’ client herself, despite the State wanting it to make that assumption.

The Court found the State’s reliance on the relationship of Mr. Hayes’ client, Mr. Hayes’ client’s brother, and the credit union employee to show that Mr. Hayes’ client was allegedly involved in the aiding and abetting was rooted in speculation. Further, because the detective’s interview was not admitted for substantive purposes, there was no substantial evidence to support Mr. Hayes’ client’s conviction of aiding and abetting robbery with a dangerous weapon. The Court thus found that the trial court should have allowed Mr. Hayes’ client’s motion to dismiss.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

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Recently we wrote about virtual oral arguments during this unusual COVID period:

Oral Argument During COVID

Today, the N.C. Supreme Court issued its decision in that case. In a unanimous per curiam opinion, the N.C. Supreme Court affirmed the N.C. Court of Appeals.

While the road was a long one for the client in this case, it was at least a victorious one! We had to win at the N.C. Court of Appeals and then win again at the N.C. Supreme Court. The case, In Re JTC, involved custody of a minor. The Respondent-Father appealed a District Court order which terminated his parental rights. This firm represented Petitioner-Mother in defending that order on appeal. With the termination order upheld, the child’s stepfather will be free to adopt the child.

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Mr. Hayes, an appellate attorney experienced in family law, can handle all issues on appeal pertaining to separation and divorce. In cases where there are multiple written judgments, Mr. Hayes has the family law and appellate background necessary to make certain those orders are consolidated to streamline an appellate decision.

The post Appealing Equitable Distribution And Other Orders Related To Divorce appeared first on Mark L. Hayes – Appellate Attorney.

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