Justia Civil Procedure Opinion Summaries

The Supreme Court held that it does not have jurisdiction to review a district court order denying a request for a joint preliminary injunction pursuant to EDCR 5.517 in a family law matter because no court rule or statute permits an appeal of a district court order denying a request for a joint preliminary injunction.After Husband filed for divorce, the clerk of court issued a joint preliminary injunction pursuant to EDCR 5.85 prohibiting the parties from disposing of any property subject to any community interest claim. After the district court issued a divorce decree the Supreme Court remanded the case to conduct proper tracing to determine community interests. On remand, Wife moved for the district court to reaffirm its prior joint preliminary injunction pursuant to EDCR 5.517. The district court issued a preliminary injunction for two assets subject to community property claims but declined to extend the injunction to other assets in a spendthrift trust. Wife appealed. The Supreme Court dismissed the appeal, holding that joint preliminary injunctions under EDCR 5.517 are not subject to Nev. R. Civ. P. 65, and therefore, orders denying or granting injunctions under EDCR 5.517 are not appealable under Nev. R. App. P. 3A(b)(3). View "Nelson v. Nelson" on Justia Law

Nathanael Brown appealed the issuance of a domestic violence protection order which enjoined him from having contact with Flavia Brown and restricted his right to possess firearms. In late September 2019, Flavia Brown petitioned the district court for a protection order against Nathanael. The court issued a temporary protection order and an order for hearing procedure which set a hearing for October 9, 2019. The order for hearing procedure stated evidence would be taken by affidavit only and a party seeking to cross-examine an affiant must notify the opposing party at least twenty-four hours before the hearing. On the day before the hearing, Nathanael Brown filed notice of appearance and a request to continue the hearing. On the day of the hearing, he filed notice of cross-examination. At the time scheduled for the hearing, the district court denied Nathanael's requests for continuance and cross-examination because they were untimely under the order for hearing procedure. At the outset of the hearing, Nathanael objected to the district court’s affidavit procedure, arguing that it would deny him due process and a “full hearing” under N.D.C.C. 14-07.1-02. The district court denied Nathanael permission to cross-examine Flavia about her affidavit or to present any of his own evidence. The court accepted Flavia's affidavit and granted the domestic violence protection order preventing Nathanael from having contact with Flavia Brown for two years. Because the North Dakota Supreme Court concluded Nathanael was denied a full hearing under N.D.C.C. 14-07.1-02(4), the protection order was reversed and the matter remanded for a full hearing. View "Brown v. Brown" on Justia Law

Petitioner M.A.B. applied for a Family Abuse Prevention Act (FAPA) protective order against respondent on October 9, 2017. Respondent and petitioner were married in 2014. Together, they had a son, J, who was born in 2015. During the marriage, respondent suffered from depression, for which he took medication. He sometimes also drank to excess. Petitioner testified that respondent raped her twice: once in March 2017 and once in May 2017. The incident in May included respondent dragging petitioner away from J while petitioner was breast feeding. In June 2017, petitioner expressed her unhappiness with the marriage. Respondent replied that, if petitioner left or divorced him, he would kill her and take J. In July 2017, petitioner took J, moved in with her parents, and filed for dissolution. After the separation, respondent made frequent attempts to contact petitioner by phone, email, and text message. At prearranged meetings, respondent regularly exhibited anger toward petitioner. After a hearing, the trial court continued the protective order in its entirety. On appeal, respondent conceded that the trial court’s findings were sufficient to establish that he had abused petitioner within 180 days of petitioner seeking the protective order. Respondent argued, however, that the evidence was insufficient to establish the two other elements: that petitioner was in imminent danger of further abuse from respondent and that respondent presented a credible threat to petitioner’s physical safety. The Court of Appeals agreed with respondent that the evidence was insufficient to show that petitioner was in imminent danger of further abuse from respondent. The court, as a result, reversed the trial court’s order without considering whether respondent represented a credible threat to petitioner’s physical safety. Because the appellate court did not consider whether respondent represented a credible threat to petitioner’s physical safety, the Oregon Supreme Court reversed and remanded for the appeals court to determine that issue in the first instance. View "M. A. B. v. Buell" on Justia Law

In a discretionary appeal, the Pennsylvania Supreme Court considered whether the superior court erred in its application of Pennsylvania law to find that L.B., a Colorado resident, was foreclosed from challenging the validity of his consent to permit the adoption of his minor children under the Pennsylvania Adoption Act, but not the requirements of the corresponding Colorado statute. After review, the Court concluded the superior court did not err, and affirmed the termination of L.B.'s parental rights to his children. View "In Re: J.W.B. & R.D.B." on Justia Law

The Orange County Department of Child Support Services (Department) has withdrawn money from Daniel Lak’s (Father) Social Security Disability Insurance benefits (SSDI) to pay for child/spousal support arrears since 2015. Father disputed the Department's authority to withdraw money, and at a hearing, sought reimbursement for overpayments and maintained the Department violated Family Code section 5246 (d)(3) by collecting more than five percent from his SSDI. The court denied Father’s requests and determined the Department could continue withdrawing money from SSDI for support arrears. On appeal, Father maintaned the court misinterpreted the law and failed to properly consider his motion for sanctions. Finding his contentions lack merit, the Court of Appeal affirmed the court’s order the Department did not overdraw money for arrears, Father failed to demonstrate he qualified for section 5246(d)(3)’s five percent rule, and sanctions were not warranted. View "Lak v. Lak" on Justia Law

This was an appeal stemming from a divorce action commenced in 2017. The only issue was division of the parties’ marital property. Included as part of the parties’ marital property was Myron Axtman’s Hess pension. The pension benefits commenced on February 1, 2015, at which time Axtman began receiving $2,891.60 per month. Myron Axtman appealed an amended judgment distributing the parties’ marital property. Axtman argued the district court abused its discretion in amending the judgment, and the court amended judgment under N.D.R.Civ.P. 60(a) without providing proper notice. The North Dakota Supreme Court determined Rule 60(a) was a proper mechanism for the court to amend the judgment to correct the mistake resulting from its oversight and omission, but the court did not provide notice to the parties it was considering amending judgment pursuant to Rule 60(a). However, the court’s error was considered harmless because, after the court amended the judgment, Axtman brought a “Motion to Vacate Order on Motion for Relief from Judgment.” In his motion, Axtman argued the district court erred in amending the judgment under Rule 60(a) because the original judgment’s failure to divide the pension payments received by Axtman during the pendency of the divorce was not a clerical mistake or a mistake arising from oversight or omission, which was the argument he raised on appeal to the Supreme Court. The Supreme Court determined Axtman was aware the district court recognized it failed to take into consideration the payments Axtman received during the pendency of the divorce in the original judgment, and that Amy Axtman was attempting to amend the judgment to account for the payments Axtman received during the pendency of the divorce. The court’s error in not providing notice did not require reversal. Thus, the Court affirmed judgment. View "Axtman v. Axtman" on Justia Law

The mother of an autistic child filed a petition for a protective order against the child’s father, alleging that the father kicked the child during an altercation that took place at the Extreme Fun Center in Wasilla, Alaska. At the hearing on the long-term protective order, the court admitted the mother’s recording of statements the son made to her approximately 30-35 minutes after the incident. The son stated that the father kicked him in the buttocks; the only disinterested witness with personal knowledge of the incident testified that the father did not kick his son. Relying on the recording and testimony from the child’s mother and therapist, the superior court found that the father committed assault; relying on the mother’s testimony, the court found that the father committed criminal trespass and granted the mother’s petition. The court also required the father to undergo a psychological evaluation and pay the mother’s attorney’s fees. After review, the Alaska Supreme Court vacated and remanded the superior court’s assault finding, and reversed the court’s trespass finding. The Court determined the superior court made its findings by a "bare preponderance" of the evidence. It was an abuse of discretion for the superior court to admit the recording without making threshold findings as to the child's competency and the recording’s trustworthiness. The protective order was vacated, as was the order for the father to undergo a psychological evaluation. The matter was remanded for further proceedings. View "Stephan P. v. Cecilia A." on Justia Law

Joshua Brumbelow petitioned the Superior Court of Habersham County to legitimate his biological son, E.M. The superior court denied the petition, concluding that, under In re Eason, 358 SE2d 459 (1987), Brumbelow had abandoned his opportunity interest to pursue a relationship with his son. Brumbelow appealed to the Georgia Court of Appeals, alleging that the trial court erred in finding that he had abandoned his opportunity interest. The Court of Appeals agreed and reversed the trial court. The Court of Appeals further remanded the case to the trial court to determine whether Brumbelow’s legitimation petition should be granted based on Brumbelow being a fit parent for E.M., instead of being evaluated under the best interests of the child standard. The Georgia Supreme Court granted certiorari to decide: (1) whether the Court of Appeals erred in reversing the superior court’s decision that Brumbelow had abandoned his opportunity interest to pursue a relationship with his son; and (2) if not, whether the Court of Appeals properly concluded that Brumbelow’s legitimation petition should have been assessed on remand under the parental fitness standard rather than the best interests of the child standard. The Supreme Court determined that, because evidence supported the superior court’s finding that Brumbelow abandoned his opportunity interest, the superior court did not abuse its discretion in denying the legitimation petition. Accordingly, the Court of Appeals erred in its decision on that issue, and the Supreme Court reversed that portion of the Court of Appeals’ judgment. With respect to the second question, the Supreme Court concluded that the portion of the Court of Appeals’ opinion relating to the standard that had to be applied to assess a biological father’s right to custody of his child in a legitimation action should be viewed as dicta only. View "Mathenia v. Brumbelow" on Justia Law

The South Carolina Supreme Court granted Michael Landry's petition for a writ of certiorari to determine whether the court of appeals erred in affirming the family court's denial of his motion under Rule 60(a), SCRCP, to correct an alleged clerical error in a final order. Michael Landry (Husband) filed an action against Angela Landry (Wife) seeking a divorce on the ground of one year's continuous separation. On the morning of trial, the parties drafted and signed a handwritten agreement resolving all of the issues between them except for the divorce. Thereafter, the parties informed the court they had reached a final agreement, marked the agreement as Plaintiff's Exhibit 1, and submitted it to the court for approval. The agreement consisted of three pages and seventeen paragraphs, resolving issues of alimony, equitable distribution of property, child support, custody and visitation of the minor child, and attorney's fees. The terms of the agreement were not read into the record; instead, the court questioned both parties about their general understanding of the agreement and whether they entered into it freely and voluntarily. Satisfied, approved and made it the final order of the court. Thereafter, Husband's attorney drafted the order, incorporating the handwritten agreement by typing its terms into the final order. After sending it to opposing counsel for his approval, Husband submitted the order to the family court judge, who signed it on January 18, 2017. Nine weeks later, Husband noticed the order contained a provision requiring him to pay Wife one-half of his military retirement benefits - the focal point of this appeal. believing the addition of paragraph 2 to be a mistake - albeit one made by his own attorney in drafting the order - Husband moved for relief under Rule 60(a), SCRCP, based upon a clerical mistake "arising from oversight or omission." the court denied the motion, finding Husband should have requested relief pursuant to Rule 59(e), SCRCP, rather than through Rule 60(a), SCRCP, and accordingly, the court lacked jurisdiction to consider the merits of the motion. Alternatively, the court found the parties had agreed that one-half of Husband's military retirement benefits would be paid to Wife. Husband appealed to the court of appeals, which affirmed the family court's decision in an unpublished per curiam opinion pursuant to Rule 220(b), SCACR. The Supreme Court concluded the court of appeals erred in affirming the family court's denial of Husband's Rule 60(a) motion based on lack of jurisdiction. The matter was remanded for an evidentiary hearing to determine what the parties actually agreed to with respect to Husband's military retirement benefits and whether Husband was entitled to relief. View "Landry v. Landry" on Justia Law

Appellants Taylor and Cody Hudson (Hudson/parents) were arrested and charged with felony criminal child abuse in relation to the alleged abuse of one of Cody Hudson's sons. Subsequently, the State sought to terminate the Hudsons' parental rights to the four children they had together. At trial, the parents sought to preclude any evidence of the criminal charges from being presented to the jury. The trial court limited evidence of the criminal charges to only inform the jury that charges had been filed, and nothing else. The jury rendered a verdict terminating parental rights as to both parents. The Hudsons appealed. After its review, the Oklahoma Supreme Court held that the limited admission of evidence of the fact that parents have been charged with criminal felonies for child abuse (but not yet convicted) was made in error but did not warrant reversal; the jury's verdict was supported by the clear and convincing evidence that the abuse was heinous and shocking. View "In the Matter of K.H." on Justia Law