LOCAL CIVIL RULES
I.
Local
Civil Rules
II. District Court Model
Continuance Policy
CIVIL JURY, NON-JURY
AND
DOMESTIC RELATIONS
DISTRICT COURT CASE MANAGEMENT PLAN
(Updated
to include 3/07 amendment to Rule 11)
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LOCAL CIVIL RULES w/ TABLE OF CONTENTS
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of the forms mentioned in these local rules are available online. Click here
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retrieving these forms.
1. General Rules
2. Continuances
3. Judgments, Settlements & Delinquent
Judgments/Orders
4. Calendaring of Civil Actions
5. Scheduling Hearings on TRO's &
Domestic
Temporary Orders
6. Scheduling Hearings on DV
Protective Orders and Civil No Contact Orders
7. First Day of Scheduled Term, etc.
8. Mandatory
Discovery - Domestic Cases
9. Calendaring
& Monitoring Child Support Cases
10. IV-D,
U.I.F.S.A & Clerk's Show Cause Cases, etc.
11. Equitable Distribution
12. Attorney's Fees
13. Uncontested Divorces
14. Sanctions
15. Amendments & Modifications
Forms
(1). GENERAL RULES
1.1 The purpose of these rules is to
institute a case management plan for the Thirtieth Judicial District, which will
allow for the just, orderly and prompt disposition of civil jury, non-jury, and
domestic relations cases. They are
promulgated in compliance with Supreme Court's direction in Rule 2, General
Rules of Practice, requiring all Chief District Court Judges to adopt and
administer a case management plan for the calendaring of civil cases.
1.2 The Court calendars for the disposition
of civil cases in the 30th Judicial District shall be set by the Clerks of
Superior Court in Cherokee, Clay, Graham, Haywood,
1.3 Pursuant to l.2 above, the Chief
District Court Judge requests that one or more clerks in each county be
designated "Civil Clerks", to handle all civil calendaring matters
with the Chief District Court Judge and the presiding District Court Judge.
It is further requested that a clerk who monitors child support payments
be designated to monitor child support cases under Section 10 of these rules for
compliance with G.S. 50-32.
1.4 It is recognized that these rules
are not complete in every respect and will not cover all situations, which may
arise. In the event these rules fail
to address a specific matter, the Clerks of Superior Court or their designee are
authorized to act in their discretion, subject to consulting with the Chief
District Court Judge or the Judge Presiding at a particular term.
1.5 The Clerk of Superior Court shall print
and distribute a copy of these rules to each member of the Bar in their county.
The Clerks of Superior Court will monitor a supply of printed rules, as
well as associated forms, to be furnished to attorneys outside of the 30th
Judicial District, and unrepresented parties, upon request.
1.7
Priority of cases in Mixed Sessions of District Court shall be as
follows:
(1) Jury (2) Domestic
(3) Non-Jury
1.8 In all civil cases, including domestic,
the attorneys and/or unrepresented parties shall mark and exchange all exhibits
at least seven (7) days prior to the trial.
Sanctions for failure to comply may include, but are not limited to,
exclusion of exhibits from evidence. (Amended
10/31/95)
(2). CONTINUANCES
2.1 Except as set forth herein the District Court Continuance Policy
attached hereto as Attached A shall be followed and requests for continuances
may be filed as follows:
(A).
At any time prior to the 10th day before the term begins.
2.2 Any request, at any time prior to
the beginning of the calendared session, for a continuance of any matter on the
docket, shall be made to the Presiding Judge on Form 30A or by letter which
includes the same information. The
reason for request must be clearly stated. The
position of the case on the trial calendar alone will not necessarily be
considered a valid reason for granting the requested continuance.
Any engagement in another court as a reason for a continuance must state
the case number, the court in which the other case is pending, its position on
that calendar, and date of trial. The
counsel or unrepresented party making the request shall include, if they know,
the response of the opposing counsel or unrepresented parties making the request
for continuance.
2.3 Opposing counsel must be notified
in writing, with certification of service, of the request for continuance prior
to or at the same time of the delivery of this request to the Presiding Judge.
If a party objects to the request, they must immediately file a reply to
the request for continuance to the Presiding Judge.
2.4 A continuance will be granted
five (5) working days after the mailing date, if no objection is made or
received and the Presiding Judge finds good cause to continue the matter.
2.5 The attorney or unrepresented
party requesting a continuance prior to the ten (10) day cut off date will
enclose, with the motion for continuance, a stamped, self-addressed, envelope
for return of the order. The movant
shall be responsible for filing the original with the clerk and notifying the
opposing parties of the granting or denial of the motion.
2.6 Motions for continuances will be heard
at the calendar call at the beginning of that particular session unless a
continuance has been granted by the Presiding Judge.
If a party objects to a continuance request and it is important that the
motion for continuance be heard before the beginning of the session, the
Presiding Judge will try to hear the motion at any time before the court date if
it can be arranged at a time convenient to the Presiding Judge.
2.7 If good cause arises to request a
continuance after the ten (10) day cut off time passes, the party requesting a
continuance should notify the other parties in writing, with certification of
service, if enough time remains for delivery.
If not enough time, notice should be made by phone, even as late as the
day before the beginning of the term.
2.8 Motions for continuance may be heard by
telephone conference calls (all parties and judge on line).
The moving party must arrange and pay for these conference calls.
(Amended 10/31/95)
(3). JUDGMENTS -
SETTLEMENTS - DELINQUENT ORDER OR JUDGMENT
3.1 All judgments and orders in civil
cases are to be submitted to the Presiding Trial Judge for signature not more
than thirty (30) days after the entry of the judgment or order.
This includes Juvenile, IV-D, child support and Uniform Interstate Family
Support Act (UIFSA) cases. When a
case is taken under advisement by the Presiding Judge, the judgment must be
submitted for signature not more than thirty (30) days from the time the
attorney who is designated to prepare the judgment is notified.
3.2 If any case or motion on the
trial calendar is settled prior to the beginning of the scheduled term, the
plaintiff or plaintiff's attorney of record must notify the designated civil
clerk of the appropriate county within twenty-four (24) hours of the settlement
and advise who will prepare the judgment or order.
Said order or judgment must be presented to a District Court Judge within
thirty (30) days of the notice to the designated Clerk.
3.3 Extensions:
The attorney designated to prepare a judgment or order may file a motion
with any District Court Judge for an extension of time in which to prepare the
judgment or order prior to the expiration of the initial thirty (30) days.
Such motion shall be made in writing, without notice to opposing counsel
or party and may be allowed for good cause shown.
3.4 Simultaneous with the
presentation of the judgment or order to the Presiding Judge for signature, the
attorney preparing and submitting the same shall tender a copy thereof to the
opposing counsel (or in the absence of counsel, to the opposing party).
Any objection by opposing counsel or opposing party must be made within
five (5) working days of the receipt of the judgment or order or the Presiding
Judge will sign the same. This
tender of judgment or order is not necessary in IV-D or U.I.F.S.A. cases.
3.5 If any case or motion on the
trial calendar is settled prior to the beginning of a scheduled term, the court
requests the attorney in that matter, as a courtesy, to notify the counsel in
the next case to be heard of the settlement so that they can prepare their case
and witnesses.
3.6 If a case on a calendar for
scheduled civil session is settled in whole or in art on the day it is scheduled
to be heard or during that term, the attorneys or parties shall prepare a
memorandum of judgment on Form 30B. This
form may be handwritten and may be continued on additional sheets if sufficient
space is not provided on the first page. The
parties must, after the memorandum is prepared, appear before the Presiding
Judge so he can inquire of them in open court as to whether or not they agree
with the memorandum of settlement. No
attorney is authorized to release his or her client or witness until the above
procedure is followed. All remaining
issues in the case should be clearly defined.
In these cases the attorney preparing the judgment or order must also
comply with Rule 3.l.
3.7 In the event that the attorney
responsible for the preparation of the judgment or order fails to submit the
same within thirty (30) days as required or fails to request an extension or
otherwise comply, the designated civil clerk shall calendar the case at the next
appropriate calendar with the designation "Delinquent
Judgment."
3.8
When an attorney for a litigant fails to comply with Rule 3.1 as stated
above, he or she is subject to the contempt powers of the Court and/or any other
sanctions as provided by the Rules of Civil Procedure.
(4). CALENDARING OF
CIVIL ACTIONS
4.1
Ready Calendar:
(A). The designated civil clerk shall maintain a
Ready Calendar upon which cases shall be placed one hundred eighty (180) days
after the complaint or action is filed, unless time is extended by order of the
Chief District Court Judge upon request that states with particularity the
reasons for the need of extensions.
(B). All cases in which a certificate of readiness
by all parties or all counsel of record) has been filed with the civil clerk
will be placed on the Ready Calendar.
(C).
All cases appealed from
(D).
All cases remanded from the Court of Appeals will be placed on the Ready
Calendar.
(E).
Cases ordered to be calendared by the Court.
4.2 Cases appealed from
All
cases on the Ready Calendar will be subject to be placed on a Trial Calendar.
4.3 Peremptory Settings: A peremptory setting shall be granted only for good cause and compelling reason. Requests for a peremptory setting for cases involving persons who must travel long distances, have numerous expert witnesses, or for other extraordinary reasons, must be made to the presiding District Court Judge for that session.
CALENDAR COMPOSITION -
ORDER OF LISTING FOR TRIAL
4.4 The Trial Calendar shall be
composed of matters peremptorily set, cases continued from prior calendars,
cases that have certificate of readiness filed by all the parties or counsel,
cases requested to be calendared by counselor unrepresented parties, cases
appealed from Magistrates Court, cases remanded from the Court of Appeals, and
cases ordered calendared by the Court.
4.5 Peremptorily set cases shall be
calendared first on the Trial Calendar and marked accordingly.
Thereafter, cases shall be set by date of filing in chronological order,
unless otherwise ordered by Court.
4.6 All calendars prepared by the
clerk shall list the cases in groups as follows:
Jury, Domestic,
Non-Jury, and Motions.
The cases should be numbered within their groups in order as they appear
on the calendar from one (1) through whatever the last number may be.
4.7 Any cases that are scheduled on a
Trial Calendar for pre-trial conference should be designated as such on the
calendar. There will be no more
magistrate appeal cases set on the Pre-Trial Conference Calendar.
PUBLICATION
OF TRIAL CALENDAR
4.8
Not
less than four (4) weeks prior to the first day of each District Court Civil
Session, the designated civil clerk, under the supervision of the Chief District
Court Judge, will prepare, publish and distribute the calendar of cases for
motion and trial at that session. A
copy of that calendar shall be mailed by the clerk to each attorney who appears
as counsel of record in one or more cases, to the Presiding Judge, to the Chief
District Court Judge, to the Court Reporter and a notice to each unrepresented
party whose address appears in the record. Each
attorney and each unrepresented party shall be responsible for seeing that their
correct mailing address appears in the record.
WITHDRAWAL
OF APPEARANCE AND NOTICE OF APPEARANCE
4.9 Any attorney who withdraws from a case must file the appropriate motion and notice for hearing. If the motion to withdraw is allowed, the attorney whose motion is granted shall immediately submit an order to the presiding judge allowing the motion. Failure to submit such an order may result in the motion being denied.
4.10 Any attorney making an appearance in a case shall
file a notice of appearance with his or her correct address unless a previous
pleading has been filed noting the attorney’s appearance.
Failure to file a notice of appearance may result in a denial of a
continuance on the ground that the attorney did not receive a calendar or notice
of hearing.
REQUEST
FOR CALENDARING
4.12 No cases, other than Temporary Restraining Orders (TRO’s), returns of Ex Parte Emergency Custody Orders, returns on Ex Parte Domestic Violence Orders, and Ex Parte Civil No Contact Orders; or other emergency orders, may be added to the calendar once published. Other cases may be added by the presiding judge in his or her discretion and the civil clerks in the respective counties should be contacted by the attorney or party whose request is granted concerning these add-ons.
4.13
Anyone whose request for calendaring is allowed pursuant to Rule 4.9 or
4.10 shall be responsible for notifying opposing counsel or an unrepresented
party within 48 hours of such request being allowed.
4.14 In order to calendar a case outside the county of
origin, a written order granting the setting of a case must be obtained from the
presiding judge for that particular term of court and must also be in compliance
with all applicable rules of civil procedure.
4.15 Any notice required by the Rules of Civil Procedure
must also be complied with.
CARRY OVER CASES NOT HEARD DURING A SCHEDULED TERM
4.16 All cases or motions not reached during a term or in which a continuance was granted will be continued to a date certain and shall require no further notice except that the clerk will include them on the calendar and mail a copy of the same to all those parties as provided in the local calendaring rules. No case will be continued to the next term of court if that term is less than four (4) weeks from the date of continuance unless the Presiding Judge, in his or her discretion, deems it necessary.
JUVENILE
AND
4.17 The rules for calendaring civil cases do not apply
to the calendaring for Juvenile or Support Court Sessions; however, all
Department of Social Services Summaries, Guardian ad Litem summaries or other
reports to be offered at trial should be provided and exchanged to all parties
at least five (5) days prior to the session or day of hearing.
(5). SCHEDULING
HEARINGS ON TEMPORARY RESTRAINING ORDERS AND DOMESTIC TEMPORARY ORDERS
5.1
The priority of scheduling return hearings on Temporary Restraining
Orders or Temporary Orders in domestic matters shall be as follows:
(A).
Any civil term in the county of origin.
(B). Any civil term of court in the county
seat closest in miles to county seat of origin.
(C).
Any term in county seat closest in miles to county seat of origin
(D). Any term of court in county of origin with lowest priority to be given to:
1.
support sessions
2.
criminal
sessions
3.
juvenile
sessions
5.2 All return hearings on a Temporary
Restraining Order or a Domestic Temporary Order must be scheduled for 9:30 A. M.
on the day of court and the Presiding Judge will hear the matter at his
convenience that day based upon his obligations to the court he is holding.
If the term is a court term of more than one day duration, the hearing
must be set for the first day of the term at 9:30 A.M.
5.3
The
attorney granted a Restraining Order or Domestic Temporary Order as set forth in
Rule 5.1 shall be responsible for notifying the appropriate clerk of court of
the name of the case, type of hearing, date and time the hearing is scheduled,
and if known, the attorney who represents the opposing parties.
The clerk of court will place the above information on the Presiding
Judge's calendar. The attorney who
was granted the Restraining Order or Domestic Temporary Order shall notify the
presiding judge scheduled to hear the return on said order, within twenty-four
(24) hours of the signing of the same. In
the alternative, the attorney may notify the presiding judge through the
Judicial Legal Assistant within the same time restrictions.
(Amended 10/31/95)
5.4 An attorney who applies to the
Court for an Ex Parte Custody Order shall prepare both an order allowing and
denying such relief, one of which is to be signed by the presiding judge.
(6). SCHEDULING
HEARING ON DOMESTIC VIOLENCE PROTECTIVE ORDERS & CIVIL NO CONTACT
ORDERS
6.1
Returns on Ex Parte Domestic Violence Orders and Civil No Contact Orders
may be scheduled at any session of court; however, the priority shall be as
follows:
(A).
Any criminal, traffic or other session in the county of origin.
(B). Any civil term in the county of origin
provided the case be set the first day of the session.
(C ). Any criminal session in the county seat closest in miles to the county seat of origin.
(D). Any civil term of court in the county
seat closest in miles to the county seat of origin provided the case be set on
the first day of the session.
(E). Juvenile sessions, DSS sessions, JRSS
session, Support sessions and MTV sessions are to be avoided unless no other
court is available and the order will expire unless the hearing is scheduled for
one of these sessions.
6.2 The civil clerk is to make sure the file is presented to the presiding judge at the beginning of the session on all returns of Ex Parte Orders and should include in the file a blank Ex Parte Order, Permanent Order, and Order of Continuance for the presiding judge.
(7). FIRST DAY OF SCHEDULED TERM: ATTORNEYS DUTIES, CALENDAR CALL, ORGANIZATION OF TRIAL CALENDAR FOR TERM
7.1 All cases and motions must be
scheduled for the first day of the term. Only
hearings on temporary orders and cases set peremptorily may be scheduled by a
District Court Judge for other than the first day of the term.
7.2 ATTORNEY DUTIES-Consistent with
ethical requirements, when an attorney is notified to appear for setting of a
calendar, pre-trial conference, hearing of a motion, or for trial, he or she
must appear. Alternatively, such
attorney of record may have present, a particular associate or other attorney
fully familiar with the particular case involved.
You may be excused from calendar call ONLY with permission of the
presiding judge.
7.3 Attorneys may be required to have
a firm member or associate counsel appear and try a matter on the calendar, if
that counsel of record cannot be present and the case is an old case that has
been on the docket several times without being heard.
This is especially true in domestic matters and matters involving child
support.
7.4 UNREPRESENTED PARTIES
- Parties not represented by counsel, with cases on the Trial Calendar,
must be present for the calendar call on the first day of the term and remain
until their case is scheduled for hearing, continued, or otherwise instructed by
the Court. Unrepresented parties may
be excused from calendar call ONLY by the presiding judge.
7.5 Attorneys and unrepresented
parties who have the oldest cases on the calendar should have all their parties
or witnesses in court on the first day of the term.
This should include at least the first five (5) cases on the calendar.
If parties or witnesses are not actually present, they should be
available to the court on at least thirty (30) minute notice.
In jury sessions the first three (3) cases on the calendar will have all
parties and witnesses available to
the court at 9:30 A.M. on the first day that the jury reports.
7.6
CALENDAR CALL - At calendar
call the Presiding Judge will attempt to set the cases for trial on a certain
day and time during that term of court. The
court, in setting matters for hearing during the term, will try to accommodate
attorneys, parties, and witnesses, but if your case is on the calendar and has
not been continued, then all parties need to be available during the whole term
for the hearing of their case. Because
we are unable to tell how long the trial of a case may last or when a case will
settle, it is absolutely necessary that the attorneys, parties, and witnesses
provide the clerk with a telephone number where they can be reached during the
term.
7.7 On the first day of court after
the calendar call, the court will first hear any uncontested matters, short
motions, place on record any settlement of cases, confer with attorneys about
settling cases on the calendar, or hear any matter of short duration before the
court begins the trial of more lengthy matters.
7.8 When the jury comes in on the
second day of a jury term, the first day will be used for pre-trial conference
or hearing of motions or other matters on the calendar that can be completed
before the jury arrives on the second day.
(8). MANDATORY
DISCOVERY IN DOMESTIC CASES
8.1 In all child support, alimony,
post separation support, and in all cases involving an alleged change of
circumstances necessitating a change in support, the attorney for the party or
the party seeking support or a change of support shall attach to the initial
pleading at the time it is filed, an affidavit setting forth the financial
condition and financial needs of the person(s) for whom support is sought.
The affidavit shall be on Form 30C or 32C as appropriate and shall be
typewritten and copies shall be attached to and served with the pleading.
Counsel or party shall make at least two additional copies of the
affidavit for the hearing of the case to be furnished to the Presiding Judge and
opposing counsel when the case is tried.
In child support cases in which there is no request that the court
deviate from the child support guidelines, only short Form 32C shall be
required. In any case in which
deviation is sought long Form 30C in its entirety must be completed and filed.
8.2 Non-compliance with Rule 8.1 may
result in the imposition of sanctions as set forth in Rule 37 of the Rules of
Civil Procedure.
8.3
In
all child support, alimony, postseparation support, and in all cases involving
an alleged change of circumstances necessitating a change in support, the
attorney for the party or the party from whom support is sought shall file and
serve on opposing counsel; (1) no
later than five (5) days before the scheduled hearing or;
(2) with the responsive pleading, whichever is first, an affidavit
setting forth the financial condition and the needs of the party from whom
support is sought. The affidavit 30C
or 32C, depending upon whether or not deviation from the guidelines is
requested, shall be typewritten, and copies of it shall be attached to and
served with the responsive pleading or served on the opposing counsel five (5)
days before the scheduled hearing, if a responsive pleading will not be filed
five (5) days before the proposed hearing. Counsel
or party shall make at least two
In child support cases in which there is no request that the court
deviate from the child support guidelines, only short Form 32C shall be
required. In any case from which
deviation is sought long Form 30C in its entirety must be completed and filed.
8.4 Non-compliance with Rule 8.3 may result in the imposition of sanctions as set forth in Rule 37 of the Rules of Civil Procedure.
8.5 It is the intent of these Rules
that each party file an affidavit of financial condition and needs for
introduction into evidence to provide information for formal discussion of
settlement; to prepare for trial; and to reduce the time necessary for trial.
8.6 Financial affidavits executed pursuant
to this rule shall be admissible in evidence without further authentication, if
the party that executed the affidavit is present in court.
8.7 Domestic Violence Protective Cases and Emergency Temporary Custody Orders which also require child support shall be excluded from filing the financial affidavit under Rule 8.1 or 8.3. However, these financial affidavits are required to be filed and exchanged by both parties no later than thirty (30) days from the date of the filing of the complaint or service whichever comes first.
8.8 Financial affidavits shall not be
required in U.I.F.S.A. Recipient IV-D or cases.
8.9 Updated or supplemental affidavits may
be allowed at the time of the trial in the discretion of the presiding judge.
8.10 The work sheets, pursuant to General Statutes
50-13.4, must be prepared by counsel or parties prior to trial.
All consent judgments involving child support or voluntary support
agreements shall have the child support work sheet attached at the time the
order is presented for signature.
(9). CALENDARING
AND MONITORING OF CHILD SUPPORT CASES
The
General Assembly, effective October 1, 1986, passed the following statute:
G. S. 50-32 - Except where paternity is at issue, in all child support
cases the District Court Judge shall dispose of the case from date of filing
(defined as date of service) to disposition within sixty (60) days, except that
this period may be extended for a maximum of thirty (30) days by order of the
court if:
(2). The parties have
consented to an extension.
In
order to comply with G. S. 50-32, the Chief District Court Judge for each
Judicial District has been asked to set up calendaring and monitoring procedures
to insure compliance. Thus, the
following:
9.1 In addition to the filing and
service of affidavit under Rule 8.1, when any party files a Complaint, Petition,
Counterclaim, Motion or Answer seeking child support, the party shall complete a
cover sheet (Form 30D), which is to be attached to the pleadings at the time of
filing. (These cover sheets will be
used by the designated clerk in the respective counties for case tracking or
monitoring purposes.)
9.2 In addition to the filing and
service of an affidavit under Rule 8.1, when in any Complaint, Petition,
Counterclaim, Answer or Motion where the initiating party or counsel seeking
child support, the party or counsel shall, concurrently with the filing of the
pleading, obtain a hearing date from the designated clerk of court.
9.3 The designated clerk will
schedule all child support actions for hearing within sixty (60) days from the
date of filing (defined as date of service).
These cases should be designated on the court calendar as "Priority
Child Support Cases."
9.4 The clerk should schedule child
support hearings at any civil term, Jury, Non-Jury or Domestic, within the sixty
(60) day period (in
9.5 The initiating party is
responsible for giving of the hearing date and time to the opposing party in
accordance with the Rules of Civil Procedure.
The clerk should place the case on the calendar and mail a copy of the
same per the local calendaring rules.
9.6 For all actions involving child
support, (excluding paternity cases) where service has been obtained, a
continuance for a maximum of thirty (30) days may be allowed by the court if
either party cannot be present at the hearing for good cause;
or the parties have consented to a continuance.
9.7 The party moving for a
continuance is responsible for insuring that opposing party is notified of the
request for continuance prior to the session of court for which the hearing is
scheduled or as soon as a conflict becomes known, all per local Rules for
Continuances.
9.8 The designated clerk will be
responsible for manually tracking each child support case beginning with the
implementation of these rules.
9.9 The tracking of these cases by
the designated clerk will be conducted to insure that a disposition of child
support cases take place within the time limits of G. S. 50-32.
9.10 Compliance of G. S. 50-32 can most easily be met by
a temporary order for child support pending trial on the merits.
(10). IV-D
CASES, U.I.F.S. CASES, AND CLERK OF COURT SHOW CAUSE CASES
AND CHILD SUPPORT ENFORCEMENT CASES INVOLVING DSS
10.1 IV-D cases and U.I.F.S.A. cases (except cases where
paternity is contested) will be calendared in Support Court Sessions.
10.2 Show Cause Orders issued by the Clerk of Court in
child support cases will be calendared in Support Court Sessions.
10.3 When an action is filed in a IV-D case, U.I.F.S.A.
case, or a Show Cause matter by the Clerk of Court, the Clerk of Court is
responsible for monitoring child support cases and the respective clerk's office
will complete a cover sheet (Form 30D). This
rule shall not apply to those clerks offices whereby administrative order DSS
Child support Enforcement is monitoring and enforcing these cases.
10.4 These cover sheets will be used by the child
support clerks to monitor these cases for compliance with G. S. 50-32 in that
disposition should be made within sixty (60) days from time of service.
10.5 The designated child support clerk should monitor
the age of the cases in
10.6 Financial affidavits shall not be required in
Recipient IV-D cases or U.I.F.S.A. cases.
10.7
In all U.I.F.S.A. cases and IV-D cases, pursuant to General Statutes
50-32, the work sheets are prepared by the parties or counsel prior to entry of
judgment.
(11). EQUITABLE
DISTRIBUTION
EQUITABLE DISTRIBUTION
AFFIDAVITS and E. D. MEDIATION
11.1 Unless a consent judgment is otherwise filed, the
parties shall comply with the mandatory discovery provision of North Carolina
General Statutes 50-21. All such
affidavits shall be filed on Form 30E (copy of which is attached hereto).
11.2 Non-compliance with Rule 11.1 may result in the
imposition of sanctions as set forth in Rule 37 of the Rules of Civil Procedure,
North Carolina General Statutes 50-20 et seq. or as otherwise provided by law.
11.3 The parties in an equitable distribution case may
exchange affidavits and file a certificate of readiness showing that both sides
are ready for trial and showing what matters are left for the Courts'
consideration. The certificate of
readiness should be filed with the designated clerk and then calendared
according to regular calendaring rules.
11.4 In any equitable distribution claim, the court may,
in its' discretion, and pursuant to Rules 53 and 16(5) of the Rules of Civil
Procedure, order a reference before proceeding further, or before entering final
judgments. The court may provide for
an apportionment of the costs of said reference, a filing deadline, and its
scope as it deems to be in furtherance of the disposition of the claim.
11.5 Equitable Distribution affidavits executed pursuant
to this rule shall be admissible in evidence without further authentication, if
the party that executed the affidavit is present in court.
MEDIATED
SETTLEMENT PROCEDURES IN
EQUITABLE DISTRIBUTION AND
11.6 Except as modified herein the rules of the North Carolina Supreme Court Implementing Settlement Procedures in Equitable Distribution and Other Family Financial cases as set forth in the Annotated Rules of North Carolina in the General Statutes shall be followed including the Administrative Office of the Courts Forms AOC-CV-824, AOC-CV-825, AOC-CV-826, AOC-CV-827 and AOC-CV-828.
11.7 Judicial Settlement Conference as described in Rule 12 of the Supreme Court rules involving Settlement Procedures will not be utilized in the 30th Judicial District.
11.8 Cases involving alimony, post separation support and child support where no claim for equitable distribution has been filed may be sent to mediation pursuant to these rules by motion and order after notice and hearing to all parties, or by consent order signed by the parties, or in the discretion of the presiding District Court Judge at a regularly scheduled session of Domestic Relations Court.
11.9 After the initial orders are signed requiring a mediated settlement conference, all communications with the court concerning Mediated Settlement Procedures as set forth above in the 30th Judicial District should be addressed to:
Judicial
Assistant
Phone:
828.454.6511 FAX
828.452.2510
11.10 It shall be the duty of each civil clerk in the respective counties to forward to the above stated office copies of the Scheduling and Discovery Conference Order or any other order requiring medicated settlement within five (5) calendar days of entry. Likewise it shall be the duty of said civil clerk(s) to forward immediately upon receipt and filing, a copy of the Report of the Mediator to the Judicial Assistant.
11.11 All mediations are to be concluded within 90 days of the scheduling and discovery conference unless extended by order of the court.
11.12 When the parties do not timely select a mediator, the general procedure for judicial appointment shall be to appoint the next certified mediator on the appropriate list who currently resides or maintains an office in this judicial district or a contiguous judicial district or who certifies in writing annually to the (Chief District Court Judge) that he or she wishes to mediate in this judicial district, is familiar with these Local Mediation Rules, and will comply with them and the Supreme Court Rules. The Chief District Court Judge or Presiding District Court Judge shall retain discretion to depart from the general procedure in particular circumstances such as but not limited to the appointment of a newly certified mediator, or to withhold a mediator who has not followed Local or Supreme Court Rules from appointment.
SCHEDULING
AND PRE-TRIAL CONFERENCES
11.13
At the first civil court date after 120 days from the filing of the
initial pleading or motion in the cause for equitable distribution, the
designated civil clerk shall schedule a court date for the Equitable
Distribution Scheduling and Discovery Conference.
At this conference the court shall determine a schedule of discovery as
well as consider and rule upon any motions for appointing of a reference or
expert witness, or other applications, including applications to determine date
of separation, and shall set a date for disclosure of expert witnesses and a
date on or before which an Initial Pre-trial Conference shall be held.
At this conference the court may, for good cause shown, move the case to
the Final Pre-trial Conference and schedule a date for the same or may move the
case directly to a trial calendar. Unless
specifically ordered by the court, cases will not be calendared more than one
time for the Scheduling and Discovery Conference.
11.14
At the Initial Pre-trial Conference the court shall make inquiry as to
the status of the case and shall enter a date for the completion of discovery,
the completion of a mediated settlement conference, if applicable, and the
filing and service of motions and shall set a date on or after which a final
pre-trial conference shall be held and a date on or after which the case shall
proceed to trial. At this initial
pre-trial conference the court may, for good cause shown, move the case to a
date certain on the trial calendar. Unless
specifically ordered by the court, cases will not be calendared more than one
time for the Initial Pre-Trial Conference.
11.15 The Final Pre-trial Conference will be scheduled on the first
court date after one hundred and eighty (180) days from the filing of the last
required pleading in a case in which equitable distribution is requested.
11.16 At the Final Pre-Trial Conference counsel and their clients or
unrepresented parties shall be present. The court will review the affidavits,
attempt to settle the case, enter into any stipulations possible between the
parties, and set a trial date or take other appropriate action.
This Final Pre-Trial Conference will be conducted pursuant to the Rules
of Civil Procedure and the General Rules of Practice, adopted pursuant to
General Statute 7A-34. The court
will, at the conference, rule on any matters reasonably necessary to effect a
fair and prompt disposition of the case in the interest of justice.
11.17 After one calendaring for Final Pre-Trial Conference all equitable distribution cases shall be moved to the Trial Calendar regardless of whether or not the Final Pre-Trial Conference was held unless otherwise ordered by the court.
11.18
Upon the motion of either party or upon the courts own initiative, the
court shall impose an appropriate sanction as provided in General Statute
50-21(e) if any party willfully delays or obstructs discovery or attempts to
obstruct or unreasonably delay any pending equitable distribution proceeding.
(12). ATTORNEY FEES
12.1
In all cases in which an attorney seeks an award of fees, the attorney
should introduce an appropriate affidavit at the appropriate time.
No award of attorneys’ fees will be made unless the affidavit is
properly introduced.
(13). UNCONTESTED
DIVORCES
13.1 Uncontested divorces may be heard at any term of
court, with the permission of the presiding judge, at the opening of court or at
any other time convenient with the Presiding Judge.
The judgments for these cases must be ready for signature when the
judgment is entered. Corroborative
witnesses will not be necessary.
(14). SANCTIONS
14.1 Failure to comply with any of these rules shall be
sufficient grounds to deny any request made by said party and furthermore shall
subject an action to dismissal or other sanctions allowed by law and deemed
appropriate at the discretion of the Presiding Judge.
(15). AMENDMENTS
AND MODIFICATIONS
15.1 These rules
are subject to amendment and modification as experience indicates and requires.
FORMS
All of the forms listed below are available online.
These forms can be obtained through Judge Bryant’s Website: www.judgebryant.com
Click here to go to the “Forms”
page of this web site. There are instructions on that page to assist you in
retrieving these forms.
30A
MOTION AND ORDER FOR CONTINUANCE (4/88)
30B
MEMORANDUM OF JUDGMENT/ORDER (4/88)
30C-1-5
CHILD SUPPORT/ALIMONY/POSTSEPARATION AFFIDAVIT
30C-1
CHILD SUPPORT/ALIMONY/POSTSEPARATION AFFIDAVIT
30D
COVER SHEET FOR CHILD SUPPORT CASES
30E-A,B
EQUITABLE DISTRIBUTION PREPARATION INSTRUCTIONS
30E-1-6
EQUITABLE DISTRIBUTION AFFIDAVITS
30E-1
EQUITABLE DISTRIBUTION/PART I, MARITAL AFFIDAVIT
(Amended 10/31/95)
30E-5
EQUITABLE DISTRIBUTION/PART V, MARITAL DEBTS (Amended 10/31/95)
30E-6
EQUITABLE DISTRIBUTION/PART VI, INCOME AND EXPENSES AFFIDAVIT
(Amended 10/31/95)
CHEROKEE l CLAY l GRAHAM l HAYWOOD l JACKSON l MACON l SWAIN I TRIBAL COURT
STATE
OF NORTH CAROLINA
DISTRICT
COURT MODEL CONTINUANCE POLICY
Rule
1:
Motions for Continuance - Criminal Cases
Criminal cases should be disposed at the earliest opportunity, including the first trial setting. However, when compelling reasons for continuance are presented which would affect the fundamental fairness of the trial process, a continuance may be granted for good cause. Requests for continuances that are made after 90 days from the first calendaring before a judge shall only be granted for extraordinary cause.
1.1
Appropriate Court Official
Rulings on any request for continuance made on the day of court for the session in which the case is calendared shall be the responsibility of the presiding trial judge of that court. The Chief District Court Judge shall establish a written policy identifying the appropriate court official to address the motions for continuance made prior to the session of court during which the case is calendared.
POLICY
FOR MOTIONS TO CONTINUE IN CRIMINAL CASES MADE PRIOR TO SESSION OF COURT FOR
WHICH A CASE IS CALENDARED
Motions
for continuance prior to the session may be made to a District Attorney in all
cases not calendared more than twice before a District Court Judge, except the
following:
1. Felonies
2. Class A1 Misdemeanors
3. DWI Cases
4. Death by Vehicle Cases
5. Cases that are more than 90 days old from the first calendaring before a District Court Judge.
All motions for cases prior to the session will be made to the District Attorney’s Offices as follows:
1. Haywood County - Waynesville Office
256 N. Main Street
Waynesville, N. C. 28786
Phone: 828/456-3067 FAX: 828/456-4846
2. Jackson County - Sylva Office
Jackson County Justice Center
401 Grindstaff Cove Road
Sylva, N. C. 28779
Phone: 828/586-7586
3. Macon County - Franklin Office
Macon County Courthouse
Franklin, N. C. 28734
Phone: 828/349-2032
4. Swain County - Bryson City Office
Swain County Courthouse
Bryson City, N. C. 28713
Phone: 828/488-8723
4. Cherokee, Clay & Graham County
Murphy Office
Cherokee County Courthouse
Murphy, N. C. 28906
Phone: 828/837-7818 FAX: 828/837-8512
The District Attorney will consider the factors as set out in Section 1.6 Evaluation of Motions for Continuance in deciding whether or not to agree to any motions for continuance.
If the District Attorney agrees with the continuance, the District Attorney, at the session for which the case in question was scheduled, will provide for documentation on form (AOC-CR-203), information showing the reason(s) for the continuance, who the case was continued for, or if continued by consent. The District Attorney is responsible for informing the victim(s), all states witnesses, and/or law enforcement officer(s) of the continuance.
If the District Attorney does not agree to the continuance, the moving party must reduce to writing the grounds for the motion to continue on the Continuance Form (AOC-CR-203), and the moving party will then turn this form over to the District Attorney who should note any objections and refer the motion to any available District Court Judge for a ruling. Upon ruling by a District Court Judge, the District Attorney will then turn the Continuance Form (AOC-CR-203) over to the Clerk for filing in the appropriate file.
If,
prior to the session, a continuance is sought in the above excepted cases,
motion for continuance should be made in writing to the presiding trial judge of
that court with proper notice to the District Attorney.
[Commentary: This section recognizes the authority and responsibility of the trial judge to address all matters which are set before him or her, and also recognized the demands and realities of North Carolina’s 39 district court judicial districts: urban or rural, multi-county or single-county, daily sessions of court or non-daily sessions of court. The policy should clearly state to whom applications should be made prior to the court session and the parameters under which continuances should and should not be granted.]
1.2 Court Conflicts
The various levels of court should work together to try to move cases as expeditiously as possible. Age of case, subject matter, and priority of setting should be given as much primacy as the level of court when resolving conflicts.
Attorneys shall notify the court and opposing counsel of any other court conflict(s) as they become known and shall keep the court advised of the resolution of that conflict. All judges shall communicate with other judges to resolve such conflicts. In resolving court conflicts juvenile cases shall take precedence over all other matters.
1.3
Documentation of Continuance
1.4 Notification
of Opposing Counsel/Unrepresented Parties/Witnesses
1.5
Objections to Motion for Continuance
1.6 Evaluation of Motions for
Continuance
Factors
to be considered by the appropriate court official when deciding whether to
grant or deny a motion for continuance should include:
the opportunity to exercise the right to effective assistance of
counsel;
·
the age of the case
and seriousness of the charge;
·
the incarceration
status of the defendant;
·
the effect on
children and spouses if the issue is continued and not resolved;
·
the impact of a
continuance on the safety of the parties or any other persons;
·
the status of the
trail calendar for the session;
·
the number, moving
party, and grounds for previous continuances;
·
the due diligence of
counsel in promptly making a motion for continuance as soon as practicable
and notifying opposing counsel and witnesses;
·
the period of delay
caused by the continuance requested;
·
the presence of
witnesses for the present session, or for a future session’
·
whether the basis of
the motion is the existence of a legitimate conflict with another court
setting;
·
the availability of
counsel;
·
consideration of the
financial consequences to the public, the parties, the attorneys, or
witnesses if the case is continued; and
·
any other factor
that promotes the fair administration of justice.
1.7
Case Rescheduling
Upon granting a motion for continuance, the judge should reschedule the case, taking into consideration the availability of counsel, defendant, and witnesses.
1.8
Time Standards
All
Criminal and motor vehicle cases should be disposed within 120 days from the
first appearance in District Court.
[Commentary: Meeting this deadline may not be possible in instances in which a defendant fails to appear and is “called and failed.” In these matters, it is the responsibility of the district attorney to determine when it is appropriate to dismiss these matters.]
Rule
2:
Motions for Continuance - General Civil and Magistrate Appeal Cases
Civil cases should be disposed at the earliest opportunity, including the first trial setting. However, when compelling reasons for continuance are presented which would affect the fundamental fairness of the trail process, a continuance may be granted for good cause. Request for continuances that will delay the resolution of the case beyond the established time standards shall only be granted for extraordinary cause.
2.1
Appropriate Court Official
All applications for continuance shall be made to the District Court Judge presiding over the session of court for which the case is calendared, or his or her designee. if the trial judge is not known at the time the request is made, the application should be addressed to the Chief District Court Judge, or his or her designee.
2.2
Court Conflicts
The
various levels of court should work together to try to move cases as
expeditiously as possible. Age of
case, subject matter, and priority of setting should be given as much primacy as
the level of court when resolving conflicts.
Attorneys
shall notify the court and opposing counsel of any other court conflict(s) as
they become known and shall keep the court advised of the resolution of that
conflict. All judges shall
communicate with other judges to resolve such conflicts.
in resolving court conflicts juvenile cases will take precedence over all
matters.
[Commentary:
All attorneys are reminded of the requirements of Rule 2(e) of the
General Rules of Practice regarding their appearance, or the appearance of a
partner, associate, or another attorney familiar with the case, if there is
another court that requires his or her presence in court simultaneously.]
2.3
Documentation of Continuance
All requests for continuance shall be by written motion, in the form of a letter, or on Form 30A of the Local Civil Rules. However, oral motions may be allowed when the reason for the continuance did not become known until immediately preceding the start of court.
[Commentary: This proviso for an oral motion is only for emergency situations, such as severe family illness or death of a party, one of the attorneys, or critical witnesses; and the absence of that person will make it impossible for the trial or hearing to proceed.
2.4
Notification of Opposing Counsel/Unrepresented Parties/Witnesses
All
parties must be notified of a motion to continue.
A copy of the motion to continue must be distributed to all counsel of
record and/or unrepresented parties prior to ruling on the motion.
In addition to the service requirements set out in the statute,
distribution of the motion must be made by the quickest means feasible,
including facsimile transmission, electronic mail, or hand delivery.
[Commentary: The burden is on the moving party to advise the court and opposing counsel of any motion for continuance. The goal of this provision is to avoid any continuance surprises and to provide notice as expeditiously as possible to the court and to the opposing party and/or their counsel.]
2.5
Objections to Motion for Continuance
All
parties should have an opportunity to be heard on a motion to continue.
When
a motion to continue is made more than seven (7) working days prior to trial,
opposing counsel and/or unrepresented par ties shall have a period of four (4)
working days, following completion of distribution, to communicate objections to
the motion for continuance to the moving party and the presiding District Court
Judge or his/her designee. Objections
not raised in writing within this time period are deemed waived.
When
a motion to continue is made within seven (7) working days of the trial term
(other than an oral motion as provided in Rule 2.3, above), the moving party
shall include in the written motion a statement that the opposing counsel or
party has been contacted and a short statement on opposing party’s position on
the motion (including whether the opposing party or counsel consents or objects,
and whether or not he or she desires to be heard on the motion). If the moving
party is unable to contact the opposing counsel or unrepresented parties, the
motion shall state what efforts were made and why contact
was not possible.
2.6
Evaluation of Motions for Continuance
Factors
to be considered by the appropriate court official when deciding whether to
grant or deny a motion for continuance should include:
the effect on children and spouses if the issue is continued and not
resolved;
·
the impact of a
continuance on the safety of the parties or any other persons;
·
the age of the case;
·
the status of the
trial calendar for the session;
·
the order in which
the case appears on the trial calendar, including whether
the case is peremptorily scheduled;
·
the number of
previous continuances;
·
the extent to which
counsel had input into the scheduling of the trial date;
·
the due diligence of
counsel in promptly filing a motion for continuance as
soon as practicable;
·
whether the reason
for continuance is a short-lived event which would resolve
prior to the scheduled trial date;
·
whether the basis of
the motion is the existence of a legitimate conflict with
another court setting;
·
the period of delay
caused by the continuance requested;
·
the position of
opposing counsel of unrepresented parties;
for a future
session;
·
whether the parties
themselves consent to the continuance;
·
present or future
inconvenience or unavailability of witnesses/parties;
·
consideration of the
financial consequences to the public, the parties, the
attorneys, or witnesses if the case is continued;
·
compliance with any
law relating to the scheduling and trial of civil cases (such
as, summary ejectment appeals);
and
·
any other factor
that promotes the fair administration of justice.
2.7
Case Rescheduling
Upon
granting a motion for continuance, the judge should reschedule the case to a
specific trial date after receiving input from all parties.
2.8
Time Standards
All
general civil and magistrate appeal cases should be disposed within 24 months of
filing, with 90% of all cases disposed within 12 months of filing.
[Commentary:
These are the standards adopted by the Supreme Court of North Carolina in
the caseflow management plan provided 1 may 1996 to the General Assembly,
pursuant to Chapter 333 of the 1995 Session laws.
Rule
3:
Motions for Continuance
-
Domestic Cases
Domestic
cases should be disposed at the
earliest opportunity, including the first trial setting. However, when compelling reasons for continuance are
presented which would affect the fundamental fairness of the trial process, a
continuance may be granted for good cause.
Requests for continuances that will delay the resolution of the contested
issues beyond the established time standards shall only be granted for
extraordinary cause.
[Commentary: Domestic cases can involve disputes that directly impact children (especially their living arrangements and support) and that prevent the parties and their family members from moving on with their lives. Therefore, they should be resolved expeditiously.]
3.1
Appropriate Court Official
All applications for continuance shall be made to the District Court Judge presiding over the session of court for which the case is calendared, or his/her designee. If the trial judge is not known at the time the request is made, the application should be addressed to the Chief District Court Judge, or his or her designee.
3.2
Court Conflicts
The
various levels of court should work together to try to move cases as
expeditiously as possible. Age of
case, subject matter, and priority of setting should be given as much primacy as
the level o f court when resolving conflicts.
Attorneys
shall notify the court and opposing counsel of any other court conflict(s) as
they become known and shall keep the court advised of the resolution of that
conflict. All judges shall
communicate with other judges to resolve such conflicts.
In resolving court conflicts juvenile cases shall take precedence over
all other matters.
[Commentary: All attorneys are reminded of the requirements of Rule 2(e) of the General Rules of Practice regarding their appearance, or the appearance of a partner, associate, or another attorney familiar with the case, if there is another court that requires his or her presence in court simultaneously.]
3.3
Documentation of Continuance
All
requests for continuance shall be by written motion, in the form of a letter, or
on Form 30A of the Local Civil Rules. However,
oral motions may be allowed when the reason for the continuance did not become
known until immediately preceding the start of court
[Commentary
: This proviso for an oral
motion is only for emergency situations, such as severe family illness or death
of a party, one of the attorneys, or critical witnesses, and the absence of that
person will make it impossible for a trial or hearing to proceed.]
3.4
Notification of Opposing Counsel/Unrepresented Parties/Witnesses
All parties must be notified of a motion to continue. A copy of the motion to continue must be distributed to all counsel of record and/or unrepresented parties prior to ruling on the motion. In addition to the service requirements set out in the statute, distribution of the motion must be made by the quickest means feasible, including facsimile transmission, electronic mail, or hand delivery.
[Commentary:
The burden is on the moving party to advise the court and opposing
counsel of any motion for a continuance. The
goal of this provision is to avoid any continuance surprises and to provide
notice as expeditiously as possible to the court and to the opposing party
and/or their counsel.]
3.5
Objections to Motion for Continuance
All
parties should have an opportunity to be heard on a motion to continue.
When
a motion to continue is made more than seven (7) working days prior to trial,
opposing counsel and/or unrepresented parties shall have a period of four (4)
working days, following completion of distribution, to communicate objections to
the motion for continuance to the moving party and the presiding District Court
Judge or his/her designee. Objections
not raised in writing within this time period are deemed waived.
When
a motion to continue is made within seven (7) working days of the trial term
(other than an oral motion as provided in Rule 3.3, above), the moving party
shall include in the written motion a statement that the opposing counsel or
party has been contacted and a short statement on opposing party’s position on
the motion (including whether the opposing party or counsel consents or objects,
and whether or not he or she desires to be heard on the motion).
If the moving party is unable to contact the opposing counsel or
unrepresented parties, the motion shall state what efforts were made and why
contract was not possible.
3.6
Evaluation of Motions for Continuance
Factors
to be considered by the appropriate court official when deciding whether to
grant or deny a motion for continuance should include:
the effect on children and spouses if the issue is continued and not resolved;
whether there is in effect a temporary order dealing with the issue that is the subject of the continuance request;
the impact of a continuance on the safety of the parties or any other persons;
whether the issue has been identified statutorily as an issue which should be addressed expeditiously, i.e., child support, post-separation support;
· the age of the case or motion;
· the status of the trial calendar for the session;
the number of previous continuances OR the number, moving party, and grounds for previous continuances;
the extent to which counsel had input into the scheduling of the trial date;
the due diligence of counsel in promptly making a motion for continuance as soon as practicable;
whether the reason for continuance is a short-lived event which would resolve prior to the scheduled trial date;
whether the basis of the motion is the existence of a legitimate conflict with another court setting;
the period of delay caused by the continuance requested;
the position of opposing counsel or unrepresented parties;
whether the parties themselves consent to the continuance;
present or future inconvenience or unavailability of witnesses/parties;
consideration of the financial consequences to the public, the parties, the attorneys, or witnesses if the case is continued; and
any other factor that promotes the fair administration of justice.
3.7
Case Rescheduling
Prior to granting a motion for continuance, the appropriate judicial should reschedule the trial or pre-trial of the contested issues to a specific date after receiving scheduling input from all parties.
3.8
Time Standards
All
domestic cases should be disposed of within 18 months of filing, with 90%
disposed within six months. Issues
of child support should be resolved and a temporary or permanent order entered
within 60 days of service. Post-Disposition
issues, such as contempt and motions to modify existing orders, should be
resolved within 60 days of the filing of such actions.
[Commentary:
These are the standards adopted by the Supreme Court of North Carolina in
the caseflow management plan provide 1 May 1996 to the General Assembly,
pursuant to Chapter 333 of the 1995 Session Laws.]
Rule
4:
Motions for Continuance
-
Juvenile Cases
For abused or neglected child, the courts are his or her source of protection and the source of services. For a delinquent child or youth, the courts provide the opportunity for rehabilitation. The goal of a case management plan for juvenile court is to put the courts in the best position to ensure the safety of children, and to give them the best possible chance of living in stable, permanent families. Therefore, continuances should be allowed only when it serves the child’s best interest. participants must come to court prepared to meet each statutory obligation that is required for resolution of these matters.
Accordingly,
juvenile cases, including motions for review in neglect and abuse matters,
should be disposed at the earliest opportunity, including the first setting for
hearing. Requests for continuances
that are made after the first setting for hearing on the merits of the case
shall only be granted for extraordinary cause.
4.1
Appropriate Court Official
All applications for continuance shall be made to the District Court Judge presiding over the session of court for which the case is calendared. If the trial judge is not known at the time the request is made or is unavailable, the application should be addressed to the Chief District Court judge, or his or her designee.
4.2
Court Conflicts
The
various levels of court should work together to try to move cases as
expeditiously as possible. Age of
case, subject matter, and priority of setting should be given as much primacy as
the level of court when resolving conflicts.
Attorneys
shall notify the court and opposing counsel of any other court conflict(s) as
they become known and shall keep the court advised of the resolution of that
conflict. All judges shall
communicate with other judges to resolve such conflicts.
In
resolving court conflicts juvenile cases shall take precedence over all other
matters.
4.3
Documentation of Continuance
All orders for continuance shall be documented in writing, and shall include the name of the moving party, any objections to the continuance, and the basis for the continuance.
[Commentary:
It may be appropriate for judicial districts to include in local rules
conditions in which written motions are required.]
4.4
Notification of Opposing Counsel/Unrepresented Parties/Witnesses
All applications for continuance shall be made as soon as a conflict is identified, and all impacted -- opposing counsel, unrepresented parties, subpoenaed witnesses, or court staff charged with subpoenaing witnesses -- shall be notified as soon as possible by the moving party.
4.5
Objections to Motion for Continuance
All parties should have an opportunity to be heard on a motion to continue.
4.6
Evaluation of Motions for Continuance
Factors to be considered by the appropriate court official when deciding whether to grant or deny a motion for continuance should include:
the best interest of the child;
the opportunity to
exercise the right to effective assistance of counsel;
the age of the case
and seriousness of the charge;
the incarceration
status of the juvenile;
the effect on
children and spouses if the issue is continued and not resolved;
the impact of a
continuance on the safety of the parties or any other persons;
the status of the
trial calendar for the session;
the number, moving party, and grounds for previous continuances;
the due diligence of
counsel in promptly making a motion for continuance as
soon as practicable and notifying opposing counsel and witnesses;
the period of delay
caused by the continuance requested;
the presence of
witnesses, including the juvenile;
the availability of
witnesses for the present session, or for a future session;
whether the basis of
the motion is the existence of a legitimate conflict with another court
setting;
the availability of
counsel
consideration of the
financial consequences to the public, the parties, the attorneys, or
witnesses if the case is continued; and
any other factor
that promotes the fair administration of justice.
4.7
Case Rescheduling
Upon granting a motion for continuance, the judge shall reschedule the case for a specified date, taking into consideration the availability of counsel, parties, and witnesses.
4.8
Time Standards
All
undisciplined cases should be disposed within 30 days of service of the
petition. All delinquency cases involving misdemeanor offenses should
be disposed within 90 days of service of the petition and those involving felony
offenses within 120 days of service of the petition.
All
adjudication of neglect and abuse cases should be within 60 days of service of
the petition. All terminations of
parental rights (TPRs) should be disposed within 120 days after service of the
petition.
[Commentary:
These are the standards recommended by juvenile experts who served on
Juvenile Task Force on Case Flow management,
part of the Court Improvement Project.]
CHEROKEE l CLAY l GRAHAM l HAYWOOD l JACKSON l MACON l SWAIN I TRIBAL COURT
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