Yes, alienation of affection and criminal conversation are alive in North Carolina. Last year Robertson, Medlin & Bloss successfully defended two cases. Here is how I began my opening statement to the jury in one case:
"If a man was a lucky man living in North Carolina a hundred years ago, maybe he had a horse. If he was doubly lucky, he had a horse and he had a wife. If another man stole his horse, he could sue him to recover the horse or the value of it. If another man stole his wife he could sue the man to recover for the value of his wife. A wife was a man's property. This was true not only in North Carolina but in most of the country.
Fast forward to the 1960s and 1970s. The civil cause of action where a man could get a jury award for stealing a man's wife were abolished in most states. It is clearly sexist to have laws derived from the concept of wife as property. North Carolina, and a handful of other states, decided not to abolish these legal proceedings. Our courts decided, instead, what is good for the goose is good for the gander. A woman can sue another woman for stealing her husband."
I went on to tell the jury that these causes of action are unwarranted state invasions into the most private area of people's lives. I asked the jurors to award the plaintiff nothing. After 2 days of trial, I approached the lawyer on the other side and said my client would pay a few thousand dollars so that we could end the trial. At this point in the proceedings it appeared that his client would, very likely, get nothing. They took the nuisance payment. My client really needed to get back to work ... in the operating room. In these kinds of cases, its always the truck driver suing the doctor, never the other way around.
Monday, March 5, 2012
Friday, February 24, 2012
Same Sex Marriage ... and Divorce
My friend, David Bartenfield, http://www.bartenfieldinjurylaw.com wanted to know what NC courts will do when people of the same sex are validly married in another state, move here, and want to be divorced here. Must NC grant the divorce even though our state does not recognize the union in the first place?
Earlier this month, Becky Watts, NC Board Certified Specialist in Family Law, from Charlotte http://www.kruschlaw.com/ provided the NC Bar family law list-serve participants a case from Wyoming dealing with the issue and suggesting NC could use the same analysis. Two women were legally married in Canada in 2008. One filed an action for divorce in Wyoming in February 2010. The district court in Wyoming determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. The action was dismissed. The Wyoming Court of Appeals reversed and remanded for the reinstatement of the divorce proceeding. Christiansen v. Christiansen, 2011 WY 90, 253 P.3d 153, 154 (Wyo. 2011).
The Wyoming law, like our law, recognizes only marriage between a man and a woman. Also, as in NC, Wyoming recognizes marriages valid in other states that may not be in this state. The best example is common law marriage. NC does not allow it, but if you were married in South Carolina, which does recognize common law marriage, moved to NC (for at least 6 months) and wanted to be divorced in NC, our court would assume jurisdiction and you could be divorced here. The Wyoming court made its decision, as NC courts do in common law marriage cases, based on conflict of law principles - not Constitutional principles.
Whether or not North Carolina courts choose to allow divorce in same sex marriages based on conflict of law analysis, is NC required to do so by the full faith and credit clause of the United States Constitution? The argument against: North Carolina would not have to recognize an out of state gay marriage because there is a strongly held public policy against the marriage. Marriages "contracted or performed outside of North Carolina between individuals of the same gender are not valid in North Carolina." N.C. Gen. Stat. Section 51-1.2. That argument depends, though, on the view that interstate recognition is a matter not for full faith and credit but for conflict of laws.
The argument for recognition of same sex marriages in North Carolina and all states, regardless of whether same sex couples are married there, is that the full faith and credit clause demands it. Individual states are not at liberty to deny full faith and credit based on public policy. There is "no roving public policy exception to the full faith and credit due judgments." Baker by Thomas v. GMC, 522 U.S. 222, 223, 118 S.Ct. 657, 139 L.Ed. 2d 580 (1998).
Earlier this month, Becky Watts, NC Board Certified Specialist in Family Law, from Charlotte http://www.kruschlaw.com/ provided the NC Bar family law list-serve participants a case from Wyoming dealing with the issue and suggesting NC could use the same analysis. Two women were legally married in Canada in 2008. One filed an action for divorce in Wyoming in February 2010. The district court in Wyoming determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. The action was dismissed. The Wyoming Court of Appeals reversed and remanded for the reinstatement of the divorce proceeding. Christiansen v. Christiansen, 2011 WY 90, 253 P.3d 153, 154 (Wyo. 2011).
The Wyoming law, like our law, recognizes only marriage between a man and a woman. Also, as in NC, Wyoming recognizes marriages valid in other states that may not be in this state. The best example is common law marriage. NC does not allow it, but if you were married in South Carolina, which does recognize common law marriage, moved to NC (for at least 6 months) and wanted to be divorced in NC, our court would assume jurisdiction and you could be divorced here. The Wyoming court made its decision, as NC courts do in common law marriage cases, based on conflict of law principles - not Constitutional principles.
Whether or not North Carolina courts choose to allow divorce in same sex marriages based on conflict of law analysis, is NC required to do so by the full faith and credit clause of the United States Constitution? The argument against: North Carolina would not have to recognize an out of state gay marriage because there is a strongly held public policy against the marriage. Marriages "contracted or performed outside of North Carolina between individuals of the same gender are not valid in North Carolina." N.C. Gen. Stat. Section 51-1.2. That argument depends, though, on the view that interstate recognition is a matter not for full faith and credit but for conflict of laws.
The argument for recognition of same sex marriages in North Carolina and all states, regardless of whether same sex couples are married there, is that the full faith and credit clause demands it. Individual states are not at liberty to deny full faith and credit based on public policy. There is "no roving public policy exception to the full faith and credit due judgments." Baker by Thomas v. GMC, 522 U.S. 222, 223, 118 S.Ct. 657, 139 L.Ed. 2d 580 (1998).
Wednesday, February 22, 2012
Gay Marriage
The voters of the great state of North Carolina have an important choice to make on March 8, 2012. Do we want to amend our state constitution to define marriage in the state as between one man and one woman? Same-sex marriage is already banned in the state of North Carolina. The proposed measure, however, would add the ban to the state constitution.
As recently as 2 years ago, I felt that same-sex couples would be well-served by state recognition of civil unions that would bestow marriage-like rights and obligations upon them. I changed my mind. I am now a strong supporter of full-fledged gay marriage. Why did I change my mind? Three reasons: Holly, Eric & Jordan. Holly, my 25 year old aspiring lawyer, lives (in sin as we used to say) with her partner, Jon in Boston. Eric, 22, is an aspiring musician living with his partner, Lindsey in Boston, and Jordan (monster jazz pianist), almost 15, goes to school at the Weaver Academy. Kitchen table political debates are a favorite family pastime. Just as with my family of origin when I was growing up in Baltimore, all are encouraged to speak his/her mind and get as loud as he/she feels necessary. When I posited my position to these youngsters, they were appalled, aghast. They told me that such "unions" would certainly not bestow rights equal to those of married couples no matter how structured in law. They challenged me to tell them exactly how equality would be guaranteed. They drew the inevitable parallel to Jim Crow laws. They are right. North Carolinians should reject this regressive amendment and vote against it.
Just as my father's generation was largely racist, mine was anti-gay. My children's generation will ensure that gay marriage is part of the law in all fifty states. Last week Washington and Maryland passed laws allowing the marriage of same sex couples, NJ's governor will veto. NC will decide whether to dig in and double down against same sex marriage with a constitutional amendment in March.
Ours is a state full of contradictions between progressive ideals and deep rooted tradition. More next post on my opening argument in an alienation of affection case highlighting these contradictions to the jury.
As recently as 2 years ago, I felt that same-sex couples would be well-served by state recognition of civil unions that would bestow marriage-like rights and obligations upon them. I changed my mind. I am now a strong supporter of full-fledged gay marriage. Why did I change my mind? Three reasons: Holly, Eric & Jordan. Holly, my 25 year old aspiring lawyer, lives (in sin as we used to say) with her partner, Jon in Boston. Eric, 22, is an aspiring musician living with his partner, Lindsey in Boston, and Jordan (monster jazz pianist), almost 15, goes to school at the Weaver Academy. Kitchen table political debates are a favorite family pastime. Just as with my family of origin when I was growing up in Baltimore, all are encouraged to speak his/her mind and get as loud as he/she feels necessary. When I posited my position to these youngsters, they were appalled, aghast. They told me that such "unions" would certainly not bestow rights equal to those of married couples no matter how structured in law. They challenged me to tell them exactly how equality would be guaranteed. They drew the inevitable parallel to Jim Crow laws. They are right. North Carolinians should reject this regressive amendment and vote against it.
Just as my father's generation was largely racist, mine was anti-gay. My children's generation will ensure that gay marriage is part of the law in all fifty states. Last week Washington and Maryland passed laws allowing the marriage of same sex couples, NJ's governor will veto. NC will decide whether to dig in and double down against same sex marriage with a constitutional amendment in March.
Ours is a state full of contradictions between progressive ideals and deep rooted tradition. More next post on my opening argument in an alienation of affection case highlighting these contradictions to the jury.
Tuesday, February 21, 2012
Calendar Call
The month starts with the call. The next months cases are called out in court, usually on the third or forth Monday of the month preceding the month of the hearing. For March, we began two hours late due to snow, but were done quicker than usual. Guilford County calendars, for that matter any court calendar, can be confusing to the uninitiated. It will have 2 dates on it, the date of the call - the date you come to court to set your case sometime during the next term - and, the date that the next term starts. Come to court the date of the call. This months calendar said: Calendar Call: February 20, 2012.
Another point of confusion is the courtroom. Greensboro family law cases are heard in courtrooms 2-E and 3-A. The monthly call is always in 2-E. But, the first calendar called is 3-A. There is a short break, then the 2-E cases are called.
Another point of confusion is the courtroom. Greensboro family law cases are heard in courtrooms 2-E and 3-A. The monthly call is always in 2-E. But, the first calendar called is 3-A. There is a short break, then the 2-E cases are called.
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