Domestic Violence Protective Orders and Voluntary Dismissals

Suppose you have filed a complaint requesting a domestic violence protective order against your partner, and before the return hearing required by law you decide that you want to dismiss the complaint. Victims of domestic violence sometimes dismiss claims out of fear of further harm or retaliation. Or they dismiss for other reasons: they decide to reconcile; they find themselves in an adverse financial position; they reconcile for the children; or they lack sufficient evidence to prosecute the claim. What type of dismissal should you enter if you are the victim and find you need to file the dismissal before the hearing?

A voluntary dismissal under N.C. Rule of Civil Procedure 41(a)(1), must be filed before the plaintiff rests their case or by stipulation of both parties, and unless otherwise stated in the notice, is without prejudice and a new action based on the same claim may be brought again within one year after such dismissal unless there is a stipulation specifying a shorter time.

A voluntary dismissal without prejudice is considered a temporary dismissal. As stated in N.C.R.C.P. Rule 41 above, a voluntary dismissal is deemed to be without prejudice unless otherwise specified. This portion of the rule allows the claimant to bring their case again in the same or another court within one year of the filing of the voluntary dismissal.

A voluntary dismissal with prejudice prevents the claiming party from ever bringing the same matters in any subsequent hearings. Our Court of Appeals held in Barners v. McGee, 204 S.E.2d 203 (N.C. App. 1974), that a voluntary dismissal with prejudice is an adjudication on the merits for the purposes of res judicata. Under the doctrine of res judicata, the claimant’s original claim cannot be reopened, and in any subsequent hearings and any issues that could have been raised are barred. The North Carolina Supreme Court in King v. Grindstaff, 200 S.E.2d 799 (N.C. 1973), held that there must be a prior adjudication on the merits of an action by the same parties and on the same issues for res judicata to apply.

The complexities of how a voluntary dismissal works can result in potentially being barred from bringing up issues from a previous claim in future litigation if you choose the wrong type of voluntary dismissal. Before filing any voluntary dismissals, seek the advice of a qualified family law attorney regarding your domestic violence or other family law issues.