Gabriel Berry Weston & Wells | Greensboro, NC Law Firm

Husband’s Failure To Disclose Assets Is Basis For Constructive Fraud

M. Douglas Berry — Thu, 10 May 2012 12:26:26 +0000

In the case of Searcy v. Searcy, the Court of Appeals in a decision filed September 20, 2011, reversed the trial court and found that there was an issue of fact with regard to constructive fraud when the husband failed to disclose the existence of promissory notes for two particular beach lots that were sold during the marriage. The Court of Appeals found that a fiduciary relationship existed between husband and wife. A duty to disclose arises where a fiduciary relationship exists between the parties through a transaction. The relationship of husband and wife creates such a fiduciary duty. During a marriage, a husband and wife are in a confidential relationship and have a duty to disclose all material facts to one another and a failure to do so constitutes fraud. However, this fiduciary duty ends when the parties separate and become adversaries negotiating the terms of their separation. Furthermore, the termination of the fiduciary relationship is firmly established when one or both of the parties is represented by counsel. However, the mere involvement of an attorney does not automatically end the confidential relationship. The mere fact of the parties being separated in and of itself is not determinative of the existence of a fiduciary relationship. When the parties originally divided their assets, the husband failed to disclose the existence of two promissory notes for Lots 17 and 18 and wife never knew that they existed. The subsequent separation agreement made no mention of notes for Lots 17 and 18. The Court of Appeals found that the fiduciary relationship between husband and wife still existed at the time the Defendant husband first failed to disclose the purchase money notes. Therefore, wife had a claim for constructive fraud.

Only Marriage, And Not Same-Sex Domestic Unions, Would Be Recognized In North Carolina Under Proposed North Carolina Constitutional Amendment 1

M. Douglas Berry — Thu, 19 Apr 2012 14:42:01 +0000

On the May 2012 North Carolina statewide ballot, a proposed constitutional amendment will appear which would establish marriage as the only domestic legal union between a man and a woman. This amendment would amend Article 14 of the North Carolina Constitution by adding the following subsection:

“Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

This amendment makes the relationship between a man and a woman the only valid domestic union that will be recognized by the State of North Carolina. It exempts private parties and presumptively private businesses from its reach.

North Carolina law already defines marriage as “created by consent of a male and female person to be lawfully married”. N.C.G.S. § 51-1.1 states that marriages whether created by common law, contract or performed outside of North Carolina between individuals of the same gender are not valid in North Carolina.

The United States Code in 1 USC Section 7 defines marriage in the context of any act of congress or any ruling, regulation or interpretation of the various administrative bureaus and agencies in the United States to be a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The constitutional Amendment 1 goes beyond the non-recognition of marriage between persons of the same sex and impacts the extent of the status of a domestic partnership in terms of a wide range of entitlements and benefits. This amendment could affect custody claims, insurance coverage and retirement benefits, as well as entitlement to other job benefits. The implications of such an amendment are potentially far-reaching in how it might impact that wide range of benefits provided by state government, municipal government and the courts.

Doug Berry
Gabriel, Berry, Weston & Wells LLP

Court Of Appeals Denies Jury Trial On Motion To Void Collaborative Law Agreement

M. Douglas Berry — Mon, 02 Apr 2012 15:36:01 +0000

In the case of Kiell v. Kiell (September 5, 2006), the North Carolina Court of Appeals held that a party claiming fraud in the inducement of a collaborative law agreement was not entitled to a jury trial. Rather, the Court found that the trial court’s obligation was to summarily determine whether there was the existence of a valid agreement.

In the Kiell decision, the parties entered into a collaborative agreement wherein they agreed to settle the issues arising from the dissolution of their marriage and would commit to do so without court intervention. The collaborative law agreement contained a special provision that if any issues arise about which agreement cannot be reached, that the parties would submit the matter to mediation or binding arbitration under the North Carolina Family Law Arbitration Act. In spite of this, the Plaintiff filed a complaint in the district court seeking a divorce from bed and board, post-separation support, alimony, attorney’s fees and equitable distribution, and included a claim to rescind and invalidate any purported collaborative law agreement between the parties.

The Plaintiff’s claim for a jury trial, although upheld by the trial court, was denied by the Court of Appeals on the grounds that the determination of the existence of a valid arbitration agreement was a matter for the court and did not require a jury trial under the North Carolina Constitution. The case was remanded to the trial court for the trial court to summarily determine whether the collaborative law agreement contained a valid arbitration clause in light of the Plaintiff’s claims.

Court Of Appeals Denies Jury Trial On Motion To Void Collaborative Law Agreement

M. Douglas Berry — Fri, 16 Mar 2012 14:22:29 +0000

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

A Person Signing A Separation Agreement Is Responsible For Reading And Understanding The Terms

M. Douglas Berry — Mon, 05 Mar 2012 14:24:37 +0000

In the case of Nix v. Nix (January 17, 2012), the North Carolina Court of Appeals held that an unrepresented individual who signed a separation agreement should be held to the terms of the agreement even though he may not have understood the wording or the legal implications. The Court of Appeals held that a person signing a separation agreement is under a duty to read it for his or her own protection and is ordinarily charged with knowledge of its contents and the legal effect of its terms. When the agreement is clearly expressed, then both parties are bound by the language contained therein. The failure to read it or the failure to obtain legal advice prior to signing it or a party’s ignorance of the relevant law is irrelevant. Absent special conditions of coercion, duress or procedural and substantive unconscionability, a party is stuck to the terms of the agreement he or she signs. In the Nix case, the pro se party complaining about the agreement had possession of the agreement for some time and had more than ample opportunity to seek advice and to get help with understanding its terms. The lesson of Nix is that one who signs a legal document, in particular a separation agreement and property settlement, does so at his or her own risk.

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

Father’s Name on Birth Certificate Creates Presumption of Paternity

M. Douglas Berry — Thu, 16 Feb 2012 01:06:35 +0000

In a recent decision filed January 17, 2012, the North Carolina Court of Appeals in the matter of J.K.C and J.D.K held that when a child’s birth certificate identifies the father, he is presumed to be the biological father of the child. The North Carolina courts have long held that a child born to a married couple while they are still legally married and before the entry of an absolute divorce is presumed to be a child born of the marriage. The J.K.C. and J.D.K. decision added the birth certificate father to this presumption. Both presumptions, however, are rebuttable.

In re J.K.C. and J.D.K. held that the placement of the father’s name on the birth certificate creates a rebuttable presumption that the father has taken the legal steps necessary to establish paternity, otherwise his name logically could not appear on the birth certificate. The Court of Appeals dealt with a specific statute, 7B-1111(a)(5), which provided that the trial court may terminate parental rights of the father of a juvenile born out of wedlock when the purported father has not established paternity judicially or by affidavit. Since the placement of the name on the birth certificate does, in fact, require such determination of paternity by affidavit or judicially, the birth certificate designation of the father was elevated to the status of creating a presumption of paternity. The practical impact of this is that although a presumption by itself will establish paternity, it can be rebutted by contrary evidence specifically including DNA testing. Where there is a legitimate question of paternity, the Court must consider all the facts and circumstances. The presumption created by the name on the birth certificate in many cases is just a starting point.

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

Court Of Appeals Denies Jury Trial On Motion To Void Collaborative Law Agreement

M. Douglas Berry — Thu, 09 Feb 2012 14:56:08 +0000

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina

Buyer Beware

Richard W. Gabriel — Fri, 20 Jan 2012 13:51:04 +0000

A client called regarding a home he purchased at a foreclosure auction. The house is rented, and the tenant sent to the client a letter addressed to “the estate of the previous owner.” A second foreclosure is now in progress. The client did not have a title search performed prior to bidding at the auction. The client actually bid on a second mortgage foreclosure. Thus he bought at a sale, subject to a first mortgage. Not paying the first mortgage caused it to go to foreclosure.

As our client discovered, buying at a foreclosure sale is risky. It is important to search the title before bidding at an auction, to be sure you know what is being sold. Our client now must decide if he wants to cut his losses and walk away, or buy in at the second sale and try to protect his investment.

If you are considering purchase of land at auction, be sure to get a title search before you bid.

Gabriel Berry Weston & Wells, L.L.P.
Richard W. Gabriel

Husband’s Failure To Disclose Assets Is Basis For Constructive Fraud

M. Douglas Berry — Mon, 09 Jan 2012 13:24:00 +0000

By: M. Douglas Berry, Family Law and Divorce Lawyer
Greensboro, North Carolina
www.gabrielberrywestonlaw.com

When should you update your Estate Planning Documents?

Robert A. Wells — Fri, 30 Dec 2011 15:00:37 +0000

Have things changed in your life since you signed your Estate Planning documents? Regardless of your age, family situation, career path, I would be expect those circumstances have changed. As an attorney, as a father, as an investor looking to retire some day, I know things change – often quickly – and sometimes in ways we don’t recognize.

I recommend that you review your Estate Planning documents about once a year. To me, the best time to do this is when you prepare your income taxes. That is a point that most people generally have their financial life laid out in front of them. When getting your taxes ready, spend some time re-reading your documents and make sure they still say what you want. Further, about every five years, I recommend you review your estate planning documents with a qualified estate planning attorney. Remember, it’s not just circumstances that change, laws do too.

by:

Robert A. Wells