Can My DVPO Be Re-Argued in Child Custody Court?
Doyle v. Doyle, 176 N.C. App. 547 (2006)
Sometimes, what kicks off a divorce is not a slow descent into a frustrating marriage, but instead a jarring and violent incident that cannot be reconciled. Domestic Violence Protective Orders (DVPO) can be granted to spouses that fear for their or their minor children’s safety. A DVPO plays a major role in a divorce case that includes claims for child custody. In North Carolina, our laws require that judges in child custody proceedings consider acts of domestic violence and safety of the child when making determinations. Is it fair for a judge in custody to allow new arguments for a settled case? Below, we discuss the implications of such a DVPO on child support through the lens of a legal doctrine called collateral estoppel.
(a) Facts: Plaintiff husband and Defendant wife married in 2001 and had one child together. They separated in 2003 and a complaint for child custody and support was filed in 2004. During this period, the parties alternated custody of the minor child on their own accord. On one such exchange, Plaintiff was at Defendant’s home to pick up the child when Defendant tried to prevent them leaving by trying to remove the child from Plaintiff’s arms. Defendant struck Plaintiff’s groin, and Plaintiff responded with his own use of force. Police were called and Defendant filed for a DVPO. Plaintiff filed a counterclaim for the same. Temporary custody was awarded to Defendant. In the DVPO hearing, the trial court Judge Mull found that Defendant had initiated the altercation, thus dismissing Defendant’s complaint and granting Plaintiff’s. In 2004, a hearing was conducted for the issues of child custody and support. At that hearing, trial court Judge Sigmon disagreed with Judge Mull, and ordered Defendant have primary physical custody. Plaintiff appealed.
(b) Issue: Did the trial court err by relitigating the issue of domestic violence?
(c) Holding: Yes.
(d) Rationale: The doctrine of collateral estoppel can be summed up by asking whether a previous court has heard and decided an issue before this court. There are requirements for when the doctrine can be applied: 1) same issues in both cases, 2) issues must have been raised and actually litigated, 3) issues must have been both material and relevant regarding the disposition of the prior action, and 4) the prior issues must have been both necessary and essential to the resulting judgment. For this child custody action, the issue of domestic violence was identical to the previous DVPO action. The issue of who was perpetrator/victim of domestic violence was heard before Judge Mull, material to the DVPO action, necessary and essential to the judgment. At the appeal, Defendant argued that the DVPO order was not a final judgment, but was unsuccessful because the return hearing for a DVPO is a final judgment and parties to the order are bound, unless appealed.
(e) Lessons and Observations:
a. If you have a child custody action, then your prior DVPO plays a role. The outcome of that action is a factor in determining custody of the minor children. Be aware that this ruling means that you cannot reargue the facts and events from that prior DVPO hearing. This makes that prior hearing all the more important to your child custody case.
b. Note, this does not mean that a prior emergency ex parte relief applies at the child custody hearing. The ex parte portion of a 50B action is not a final judgment. It may not apply to dismissed 50B actions either, seeing as how a dismissed action may not be issues actually litigated.