Volume 189 — North Carolina Court of Appeals Reports

<bold>1. Embezzlement — fiduciary relationship — criminal intent — evidence</bold> <bold>sufficient</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss charges of embezzlement where defendant contended that the State failed to introduce substantial evidence that he was in an agency or fiduciary relationship with the victims, and that defendant acted with criminal intent.</block_quote> <bold>2. Embezzlement — peremptory instruction — commingling funds — erroneous</bold> <block_quote> The trial court erred in an embezzlement prosecution arising from leasing retail space to small vendors and serving as their sales agent where it essentially instructed the jury as a matter of law that defendant had acted with criminal intent if the vendors' receipts had been commingled with other corporate funds. The State was relieved of its obligation to prove criminal intent and the error was reversible as it was a close case, with a reasonable possibility that the jury would have found defendant not guilty without the instruction.</block_quote>

<bold>1. Guardian and Ward — adjudication of incompetency — standing to appeal</bold> <block_quote> Appellant Mr. Winstead had standing to appeal to superior court an adjudication finding his wife of sixty years incompetent. The matter is controlled by N.C.G.S. § <cross_reference>35A-1115</cross_reference>, and Mr. Winstead was an interested party as next of kin, was entitled to notice of the proceeding, and was authorized to appeal.</block_quote> <bold>2. Guardian and Ward — appointment of guardian — standing to appeal</bold> <block_quote> Appellant Mr. Winstead had standing to appeal an order appointing another person to be the guardian of his wife of sixty years. The matter is controlled by N.C.G.S. § <cross_reference>1-301.3</cross_reference>(c); Mr. Winstead had filed an application for letters of guardianship, he was a party to the proceedings, and he was aggrieved by the appointment of another.</block_quote>

<bold>1. Administrative Law — certificates of need — ex parte communications —</bold> <bold>new hearing</bold> <block_quote> The director of the Department of Health and Human Services, Division of Facility Services violated the provision of N.C.G.S. § <cross_reference>150B-35</cross_reference> prohibiting ex parte communications in contested cases between the agency decision maker and any party in connection with any issue of fact or question of law when, on two occasions prior to reversing the recommended decision of an ALJ that an oncology treatment center was not required to obtain certificates of need (CONs) in order to relocate its offices and acquire radiation therapy equipment, the director requested cost information from counsel of a hospital opposing the oncology treatment center without notice to other parties or affording an opportunity for the other parties to participate; the information provided by the hospital in response to those requests pertained to the pivitol issue as to whether the treatment center's costs were above or below the statutory threshold for CONSs; and the ex parte communications thus involved both issues of fact and questions of law. Therefore, the agency decision is reversed and remanded for a new hearing to be held by a person other than the director who engaged in the improper ex parte communications.</block_quote><page_number>Page 264</page_number> <bold>2. Administrative Law — certificates of need — rejection of ALJ's</bold> <bold>recommended decision — reasons for not adopting ALJ's findings</bold> <block_quote> The Department of Health and Human Services, Division of Facility Services violated N.C.G.S. § <cross_reference>150B-34</cross_reference>(c) and prejudiced an oncology treatment center's right to appellate review by failing to set forth specific reasons for not adopting certain findings of fact by an ALJ when it rejected the ALJ's recommended decision that the treatment center was not required to obtain certificates of need in order to relocate its offices and to acquire radiation therapy equipment. On remand, all findings in the ALJ's recommended decision should be addressed in any final agency decision that declines to adopt the ALJ's recommendation.</block_quote>

<bold>Appeal and Error — preservation of issues — appellate rules violations —</bold> <bold>notice of appeal — failure to include certificate of service — appeal</bold> <bold>dismissed</bold> <block_quote> Plaintiff's appeal from an order denying her motion in aid of enforcement of execution to recover against an annuity defendant had purchased from Jefferson-Pilot Insurance Company (JP) while a resident of Florida is dismissed because: (1) plaintiff's notice of appeal did not comport with the requirements of N.C. R. App. P. 3 when plaintiff's notice of appeal purported to be brought under Rule 4 which governs a criminal case, plaintiff failed to indicate to which court the appeal was taken, and there was no certificate of service of the notice of appeal in the record on appeal as required by N.C. R. App. P. 26; (2) JP did not waive the issue and the court is without jurisdiction to hear the appeal since JP filed a motion to dismiss the appeal based on a defective notice of appeal including a lack of certificate of service in the record; and (3) plaintiff failed to comply with N.C. R. App. P. 28(b)(6) when there was no statement of the applicable standard of review either at the beginning of each question presented or at the beginning of the discussion of all questions presented.</block_quote>

<bold>1. Divorce — alimony — reduction — findings</bold> <block_quote> The trial court erred by reducing a husband's alimony obligation to zero without making findings regarding the wife's reasonable needs or the husband's ability to pay. A finding that the wife's income increased is not alone sufficient to warrant modification of an alimony order, and the court may not use the husband's capacity to earn as the basis of its alimony award unless it finds that he deliberately depressed his income or indulged in excessive spending.</block_quote> <bold>2. Child Support, Custody, and Visitation — child support — reduction —</bold> <bold>findings</bold> <block_quote> The trial court's findings were not sufficient to reduce a husband's child support obligation where the husband had remarried and had another child (that alone is not sufficient) and findings about the husband's decreased income were not sufficient to determine whether the modification of support was<page_number>Page 623</page_number> based on a substantial change in circumstances supported by competent evidence.</block_quote> <bold>3. Child Support, Custody, and visitation — moving out of state —</bold> <bold>findings conclusive on appeal</bold> <block_quote> The trial court did not abuse its discretion by denying a wife's request to modify the parenting agreement to allow her to relocate with the children to the State of Washington. The court's findings are conclusive on appeal if there is evidence to support them, even if the evidence might sustain findings to the contrary.</block_quote> <bold>4. Child Support, Custody, and Visitation — visitation increased —</bold> <bold>findings</bold> <block_quote> The trial court erred by increasing a husband's visitation with the minor children without sufficient findings to support its conclusion. The conclusion about the husband's custodial time was not supported by findings of fact indicating that those changes affected the welfare of the parties' minor children.</block_quote>

<bold>Sentencing — below minimum term — concurrent rather than consecutive —</bold> <bold>right of State to appeal</bold> <block_quote> The trial court erred by sentencing defendant below the statutory minimum term for financial card theft and by sentencing him to a concurrent rather than consecutive term for being an habitual offender. The State has a right of appeal from a defendant receiving a sentence below the statutory minimum term, but no right to appeal from a concurrent rather than consecutive term. However, the Court of Appeals elected to treat this case as a petition for mandamus in the interest of the administration of justice.</block_quote>