North Carolina Divorce Lawyers Blog
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DVPOs and Claimant Credibility

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In Reece v. Holt, the North Carolina Court of Appeals, in an unpublished opinion, reviewed N.C.G.S. Chapter 50 for child custody and subject matter jurisdiction. Plaintiff Father claimed that an ex parte order established a “presumption” supporting a claim for domestic violence under N.C.G.S. § 50B. This article will focus on the domestic violence action only.

Reece v. Holt,  COA19-986 (N.C. Ct. App. 2020)

  • Facts: Plaintiff Father appealed trial court decisions regarding the dismissal of his child custody action for lack of subject matter jurisdiction and dismissal of Plaintiff Father’s Chapter 50B domestic violence protective order.

The trial court granted Plaintiff Father an ex parte domestic violence order of protection on May 22, 2019. The protective order required the Defendant Mother to return the minor child to the father’s care immediately, not to remove the minor child from the father’s care, and stay away from the minor child. The ex parte contained Plaintiff Father’s allegations that the Defendant Mother had threatened to cut or get his throat cut if Plaintiff Father filed for custody on December 11, 2018. Plaintiff Father alleged that the Defendant Mother attacked him by grabbing his neck and leaving a severe cut on his neck and cuts to his nose and face on April 3, 2019, and using a cell phone to hit him in the head in the presence of the child on May 8, 2019.

On the morning of the return hearing for the 50B and child custody action, Plaintiff Father filed a pro se motion for a protective order motion for temporary custody, claiming Child Protective Services was investigating Defendant Mother based on Plaintiff Father’s report that the Mother had issues with drugs and alcohol, driving under the influence, repeated threats against the Plaintiff Father, and suicidal ideations.

The trial court dismissed Plaintiff Father’s claim for a domestic violence protective order for failure to prove grounds to issue a domestic violence protective order.

Plaintiff Father argued that the trial court erred in dismissing the order of protection claiming the ex parte order established a “presumption” supporting his claim.

 

  • Issue: Whether an ex parte domestic violence protective order establishes a presumption of the credibility of the evidence in favor of the claiming party in an action for a protective order under N.C.G.S. 50B.

 

  • Holding: The Court of Appeals ruling was that the trial court did not err in dismissing the Plaintiff Father’s claim for a Chapter 50B domestic violence protective order. A further finding of the Court of Appeals was that the trial court considered the evidence presented by the parties correctly and properly determined the weight and credibility of the evidence in dismissing the claim.

 

  • Rationale: The N.C. Court of Appeals, quoting Rudder v. Rudder, 759 S.E.2d 321, 328 (N.C. App. 2014), held that an ex parte order does not create a presumption. Still, the order intends to address a situation where immediate action is needed to avert the threat of imminent harm. Plaintiff Father argued that he was entitled to a protective order based on his presentation of evidence of Defendant Mother’s actions. The Court of Appeals held that, if the trial court determined the evidence was credible and of sufficient weight, Plaintiff Father would be entitled to a protective order. However, the Court of Appeals could not substitute its own determination of the credibility of the evidence for that of the trial court. Referencing Stancill v. Stancill, 773 S.E.2d 890, 892 (N.C. App. 2015), the Court of Appeals said that it can only read the record which must stand as written. “But the trial judge is present for the full sensual effect of the spoken word, with nuances of meaning revealed in pitch, mimicry and gestures, appearances and postures, shrillness and stridency, calmness and composure, all of which add to or detract from the force of spoken words.” As such, the Court of Appeals must give the trial court’s findings great deference as to the credibility of the witnesses.

 

The trial court found neither the Plaintiff Father nor the Defendant Mother was credible in claims for actual abuse or that evidence existed to show either party fearful of any future abuse or specific criminal behavior that would qualify as domestic violence under N.C.G.S. § 50B-1(a). The trial court further opined that the Plaintiff Father and Defendant Mother appeared to be using Chapter 50B domestic violence actions in support of their child custody claims. The Court of Appeals held that, since the trial court properly considered the evidence presented by both parties and determined the weight and credibility of the evidence, the trial court did not err in dismissing Plaintiff Father’s claim for the domestic violence protective order.

Lesson:  If you have had an ex parte domestic violence protective order filed against you, you should engage the help of an experienced family law attorney to assist in your defense. As seen above, just because an accusation was made, there is no guarantee that the accuser will receive a domestic violence protective order. The accuser must still meet the requirements of showing: a) that there was an attempt to cause bodily injury or there was an intentional injury caused; b) that you or a member of your family is in fear of serious bodily injury; c) that there is continual harassment rising to the level of substantial emotional distress; or d) that the offending party has committed rape or another sexual offense under N.C.G.S. §14-27.21 through 14-27.33.