Russell v. Wofford , 260 N.C. App. 88 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1191
Filed: 19 June 2018
New Hanover County, No. 17-CVD-2018
VERONICA RUSSELL, Plaintiff,
v.
DONALD WOFFORD, Defendant.
Appeal by defendant from order entered 2 June 2017 by Judge Jeffrey E.
Noecker in District Court, New Hanover County. Heard in the Court of Appeals 7
March 2018.
No brief filed on behalf of plaintiff.
Sherman Law, P.C., by Scott G. Sherman, for defendant-appellant.
STROUD, Judge
Defendant appeals no-contact order under North Carolina General Statute
Chapter 50C which ordered him to surrender his firearms. Because the trial court
had no authority under North Carolina General Statute Chapter 50C to order
defendant not to possess or purchase any firearms, to surrender his firearms, or to
revoke his concealed carry permit, we reverse and remand the portion of the order
with these provisions. We affirm the remaining portions of the order.
I. Background
RUSSELL V. WOFFORD
Opinion of the Court
On or about 23 May 2017, plaintiff filed COMPLAINT FOR NO-CONTACT
ORDER FOR STALKING OR NONCONSENSUAL SEXUAL CONDUCT on form
AOC-CV-520, Rev. 8/14 against defendant under North Carolina General Statute §
50C-2. Plaintiff alleged defendant grabbed her breasts without her consent, came to
her house “making false accusations” and refused to leave, and had his erectile
dysfunction medication delivered to her home. Plaintiff marked boxes on the form
requesting an ex parte temporary order and a permanent no-contact order.1 Plaintiff
also marked all of the boxes 4 through 9 on the form which request that defendant be
ordered not to visit her or interfere with her in various ways and to stay away from
her children’s schools. Plaintiff made no request in the blank areas under box 10
entitled “Other: (specify)[.]” Plaintiff also made no allegations regarding firearms or
any threat of physical violence.
The trial court entered an ex parte TEMPORARY NO-CONTACT ORDER FOR
STALKING OR NONCONSENSUAL SEXUAL CONDUCT, form AOC-CV-523, rev.
10/15, granting the relief as plaintiff requested and setting a hearing on the
permanent no-contact order on 2 June 2017. On 2 June 2017, the trial court held the
hearing on the permanent no-contact order; plaintiff and defendant were both present
and defendant was represented by counsel. Plaintiff did not mention guns or make
1 Under North Carolina General Statute § 50C-8(b), “[a] permanent civil no-contact order shall
be effective for a fixed period of time not to exceed one year[,]” but it can be extended under § 50C-8(c).
N.C. Gen. Stat. § 50C-8 (2017).
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Opinion of the Court
any request related to guns during her testimony. Defendant mentioned during his
testimony he was a former FBI agent, retired police officer, and a veteran; he owned
a firearm, and was “authorized to be armed in fifty states twenty-four seven.” The
trial court entered a NO-CONTACT ORDER FOR STALKING OR
NONCONSENSUAL SEXUAL CONDUCT on form AOC-CV-524, Rev. 4/17 under
North Carolina General Statute § 50C-7. The order included findings of fact
regarding nonconsensual sexual conduct by defendant and concluded that defendant
had “committed acts of unlawful conduct against the plaintiff.”
In the decree portion of the order, the trial court checked boxes 1 through 6,
ordering defendant not to commit various acts such as visiting or stalking the
plaintiff. The trial court also checked box 7, entitled “Other: (specify)” and made a
handwritten notation ordering:
Defendant shall surrender to the NH Sheriff’s office any
and all firearms that he owns, to be held by NH Sheriff for
the duration of this order. Defendant’s concealed carry
permit is revoked for the period of this order. Defendant is
prevented from purchasing possessing any firearm for the
term of this order.
Defendant filed a timely notice of appeal from the order.
II. Surrender of Firearms
Defendant first contends that the trial court exceeded its authority as granted
in North Carolina General Statute § 50C-7 by ordering him to surrender his firearms,
not to purchase or possess any firearms, and revoking his concealed carry permit.
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Opinion of the Court
The order was entered under North Carolina General Statute, Chapter 50C, and
presents a question of statutory interpretation. “Questions of statutory
interpretation are questions of law, which are reviewed de novo by an appellate
court.” State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517 (2009) (citations
and quotation marks omitted).
North Carolina General Statute § 50C-7 (2017) provides,
Upon a finding that the victim has suffered an act of
unlawful conduct committed by the respondent, a
permanent civil no-contact order may issue if the court
additionally finds that process was properly served on the
respondent, the respondent has answered the complaint
and notice of hearing was given, or the respondent is in
default. No permanent civil no-contact order shall be
issued without notice to the respondent. Hearings held to
consider permanent relief pursuant to this section shall not
be held via video conference.
Nothing in North Carolina General Statute Chapter 50C addresses surrender of
firearms. North Carolina General Statute § 50C-5 sets forth a list of remedies for a
civil no-contact order:
(b) The court may grant one or more of the following
forms of relief in its orders under this Chapter:
(1) Order the respondent not to visit, assault,
molest, or otherwise interfere with the victim.
(2) Order the respondent to cease stalking the
victim, including at the victim’s workplace.
(3) Order the respondent to cease harassment of
the victim.
(4) Order the respondent not to abuse or injure
the victim.
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Opinion of the Court
(5) Order the respondent not to contact the victim
by telephone, written communication, or electronic means.
(6) Order the respondent to refrain from entering
or remaining present at the victim’s residence, school, place
of employment, or other specified places at times when the
victim is present.
(7) Order other relief deemed necessary and
appropriate by the court, including assessing attorneys’
fees to either party.
N.C. Gen. Stat. § 50C-5 (2017). North Carolina General Statute § 50C-11 further
provides that “[t]he remedies provided by this Chapter are not exclusive but are
additional to other remedies provided under law.” N.C. Gen. Stat. § 50C-11 (2017).
This case presents the question of what “other relief” or “additional” remedies
the trial court has statutory authority to order, and in particular, whether the court
may order surrender of firearms. N.C. Gen. Stat. §§ 50C-5; -11. Because Chapter
50B is a similar statutory scheme which addresses orders issued to protect against
acts of domestic violence (“DVPO”) arising in a “personal relationship” it is useful to
compare the language of the two Chapters and consider the types of relief allowed
under Chapter 50B to determine whether surrender of firearms is also a proper
remedy under Chapter 50C.2 Compare generally N.C. Gen. Stat. Chap. 50B, 50C
2 Chapter 50B addresses parties in a “personal relationship” which is defined as “(1) [a]re current or
former spouses; (2) Are persons of opposite sex who live together or have lived together; (3) Are related
as parents and children, including others acting in loco parentis to a minor child, or as grandparents
and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of
protection against a child or grandchild under the age of 16; (4) Have a child in common; (5) Are current
or former household members; (6) Are persons of the opposite sex who are in a dating relationship or
have been in a dating relationship. For purposes of this subdivision, a dating relationship is one
wherein the parties are romantically involved over time and on a continuous basis during the course
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Opinion of the Court
(2017). Chapter 50C addresses those situations not covered by Chapter 50B, where
the parties are not in a “personal relationship.” See Tyll v. Willets, 229 N.C. App.
155, 159, 748 S.E.2d 329, 331 (2013) (“North Carolina General Statute § 50C–1
incorporates the definitions of ‘personal relationship’ from North Carolina General
Statute Chapter 50B and excludes them from the category of relationships upon
which a Chapter 50C no-contact order can be premised. See N.C. Gen. Stat. § 50C–
1(8). In doing so, Chapter 50C provides a method of obtaining a no-contact order
against another person when the relationship is not romantic, sexual, or familial. See
N.C. Gen. Stat. §§ 50B–1(b), 50C–1(8).”).
North Carolina General Statute § 50B-3(a) sets forth similar types of relief as
§ 50C-5. Compare N.C. Gen. Stat. §§ 50B-3; 50C-5 (2017). North Carolina General
Statutes 50B-3 and 50C-5 are not identical, since Chapter 50B includes provisions
needed to address possession of a residence, child custody and support, and property
issues common between those in a “personal relationship[.]” Compare N.C. Gen. Stat.
§§ 50B-3; 50C-5; see generally N.C. Gen. Stat. 50B-1. North Carolina § 50B-3(a)(13)
is a “catch-all” provision which allows the trial court to “[i]nclude any additional
prohibitions or requirements the court deems necessary to protect any party or any
minor child.” N.C. Gen. Stat. § 50B-3(a)(13) (emphasis added). Our Supreme Court
has interpreted the “catch-all” provision of § 50B-3(a)(13) and held that the word
of the relationship. A casual acquaintance or ordinary fraternization between persons in a business
or social context is not a dating relationship.” N.C. Gen. Stat. 50B-1(b) (2017).
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Opinion of the Court
“any” does not give the trial court unlimited power to order additional relief. See
State v. Elder, 368 N.C. 70, 773 S.E.2d 51 (2015).
Notably, in comparing Chapters 50B and 50C, Chapter 50C does not mention
firearms, while North Carolina General Statute § 50B-3.1, entitled, “Surrender and
disposal of firearms; violations; exemptions[,]” sets forth detailed requirements for
any DVPO which orders surrender of firearms. See N.C. Gen. Stat. § 50B-3.1 (2017).
The trial court must make specific findings of fact in the DVPO to justify ordering the
surrender of firearms. See id. The statute also sets forth the procedure for returning
weapons to their owner and disposal of firearms not returned. See id. Here, neither
the complaint nor the ex parte no-contact order mentioned firearms – nor does
Chapter 50C -- so defendant had no notice of the possibility of an order requiring
surrender. Since the trial court imposed this provision after the hearing, sua sponte,
neither party had an opportunity to address it at the hearing or to object.
In State v. Elder, the trial court granted a DVPO which, in addition to the relief
enumerated by § 50B-3 provided
that any Law Enforcement officer serving this Order shall
search the Defendant’s person, vehicle and residence and
seize any and all weapons found. Notably, the court made
no findings or conclusions that probable cause existed to
search defendant’s property or that defendant even owned
or possessed a weapon.
Id. at 71, 773 S.E.2d at 52 (quotation marks and brackets omitted). Upon conducting
the search directed by the DVPO, law enforcement officers discovered a marijuana
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Opinion of the Court
growing operation in the defendant’s home, leading to criminal charges. See id. In
his criminal case, our Supreme Court held that the trial court should have allowed
the defendant’s motion to suppress the evidence obtained from their search of his
home under the DVPO because the district court did not have authority to order a
search of a home without probable cause or a search warrant:
Our General Assembly enacted the Domestic
Violence Act, N.C.G.S. Chapter 50B, to respond to the
serious and invisible problem of domestic violence.
Subsection 50B–3(a) states that if a court finds a defendant
committed an act of domestic violence, the court must
grant a DVPO restraining the defendant from further acts
of domestic violence. The statute then lists thirteen types
of relief that the court may order in a DVPO. The first
twelve are specific prohibitions or requirements imposed
on a party to the DVPO. The last type of relief is a catch-
all provision that authorizes the court to order any
additional prohibitions or requirements the court deems
necessary to protect any party or any minor child.
We disagree with the State’s contention that the
General Assembly intended a broad interpretation of the
word “any.” The plain language of section 50B–3 does not
authorize courts to order law enforcement to search a
defendant’s person, vehicle, or residence under a DVPO.
The word “any” in the catch-all provision modifies
“additional prohibitions or requirements,” N.C.G.S. § 50B–
3(a)(13), and this provision follows a list of twelve other
prohibitions or requirements that the judge may impose on
a party to a DVPO. For example, the court may prohibit a
party from harassing the other party or from purchasing a
firearm, and it may require a party to provide housing for
his or her spouse and children, to pay spousal and child
support, or to complete an abuser treatment program. It
follows, then, that the catch-all provision limits the court
to ordering a party to act or refrain from acting; the
provision does not authorize the court to order law
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Opinion of the Court
enforcement, which is not a party to the civil DVPO, to
proactively search defendant’s person, vehicle, or
residence.
Not only is this interpretation demanded by the
plain language of the statute, but it is consistent with the
protections provided by the Federal and State
Constitutions. The Federal and State Constitutions
protect fundamental rights by limiting the power of the
government. Yet under the State’s broad interpretation
here, district courts would have seemingly unfettered
discretion to order a broad range of remedies in a DVPO so
long as the judge believes they are necessary for the
protection of any party or child. This interpretation
contravenes the Fourth Amendment to the United States
Constitution and Article I, Section 20 of the North Carolina
Constitution.
Id. at 72–73, 773 S.E.2d at 53 (citations and quotation marks omitted).
Although the particular issue in Elder is different, the same sort of analysis
applies here. See generally Elder, 368 N.C. 70, 773 S.E.2d 51. Furthermore, the list
of relief in North Carolina General Statute Chapter 50C is even more limited than
the list of remedies in Chapter 50B; compare N.C. Gen. Stat. Chap. 50B; 50C, all of
the remedies in § 50C-5 are “ordering a party to act or refrain from acting” in
relationship to, in this case, plaintiff. Elder, 368 N.C. at 72–73, 773 S.E.2d at 53; see
N.C. Gen. Stat. § 50C-5. If we were to interpret Chapter 50C to allow the district
court to order, sua sponte, surrender of firearms, revocation of a concealed carry
permit, and forbidding the purchase or possession of firearms, even with no evidence
of threatened use of a firearm or any threat of physical harm, this interpretation
would allow far broader relief than North Carolina General Statute Chapter 50B
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Opinion of the Court
does, with no notice to a defendant that he may be required to surrender or not
possess firearms. See generally Elder, 368 N.C. at 72–73, 773 S.E.2d at 53; N.C. Gen.
Stat. Chap. 50B. Even if this order had been entered under Chapter 50B, the order
requiring surrender of firearms would have been in error because there was no
evidence to support the required findings of fact under North Carolina General
Statute § 50B-3.1. See N.C. Gen. Stat. § 50B-3.1. District Courts do not have
“unfettered discretion to order a broad range of remedies” in a Chapter 50B protective
order “so long as the judge believes they are necessary for the protection of any party
or child” nor do they have “unfettered discretion” under Chapter 50C to order any
relief the judge believes necessary to protect a victim. Elder, 368 N.C. at 73, 773
S.E.2d at 52. We understand that the motivation of the trial court was simply to
protect plaintiff, but the district court does not have authority under Chapter 50C
sua sponte to order defendant to surrender his firearms, revoke his concealed carry
permit, or to order him not to purchase or possess any firearms during the period of
the no-contact order. We reverse these provisions of the no-contact order.
III. No-Contact Order
Defendant also argues that the trial court should not have entered a no-contact
order because he did not commit the acts plaintiff alleged and testified about at the
hearing. But defendant’s brief acknowledges there was sufficient evidence to support
the trial court’s findings of fact: “Although the Defendant disagrees with the Court’s
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Opinion of the Court
actual finding, the Defendant concedes that the Court had the right and opportunity
to view the evidence in the way the Court did and that the evidence, so construed,
may uphold an Order for Non-Consensual Sexual Conduct.” Defendant does not
actually challenge either the findings of fact or the conclusions of law in the no-
contact order, so we affirm the order except as to the provisions regarding firearms
discussed above.
IV. Conclusion
The district court exceeded its authority under North Carolina General Statute
Chapter 50C by ordering defendant to surrender his firearms, revoking his concealed
carry permit, and ordering him not to purchase or possess firearms during the period
of the no-contact order. We reverse the provisions of the order addressing firearms.
We remand to the trial court to determine if any additional order is needed to direct
the New Hanover Sheriff’s Office to return defendant’s firearms, and if so, to enter
such an order. We affirm the remainder of the order.
AFFIRMED in part; REVERSED and REMANDED in part.
Judges DAVIS and ARROWOOD concur.
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