Bryant v. Williams

CALABRIA, Judge.

Dale O. Williams (“Ms. Williams”) appeals the trial court’s order approving a consent agreement, entered pursuant to N.C. Gen. Stat. § 50B-3, and denying her Rule 60(b) motion to set aside the orders.¹ We find because the order approving the consent agreement dismissed the domestic violence claims, the trial court could not enter this order under Chapter 50B, and therefore it must be vacated.

In early April 2002, the parties filed complaints against each other seeking domestic violence protective orders. Ms. Williams’ ex parte order was granted; Mr. Bryant’s was denied. On 22 April 2002, a hearing on Ms. Williams’ order was held, and a consent order was entered and filed. Thereafter, on 8 May 2002, Ms. Williams filed a Rule 60(b) motion seeking relief from the 22 April order. On 21 June 2002, the trial court entered an order that was a typewritten recapitulation of the earlier order, but was not, as is common practice, entered nunc pro tunc to 22 April. Although the trial court had not ruled on the Rule 60(b) motion, Ms. Williams filed notice of appeal from the June order. On 26 July 2002, the trial court denied the Rule 60(b) motion; Ms. Williams appealed.

First, we note the concurring opinion asserts this Court does not have jurisdiction to consider Ms. Williams’ appeal of the April order because no appeal from the order was timely made. Ms. Williams appealed both the June typewritten order and the denial of her Rule 60(b) motion to set aside the April order. Under the concurring opinion’s analysis that the April order was valid because “it was ‘reduced to writing, signed by the judge, and filed with the clerk of court,’ ” the June order is also a valid order. The parties stipulated that Ms. Williams gave timely notice of appeal from the June order as well as the order denying her Rule 60(b) motion to set aside the April order.

We now address the merits of the appeal. Ms. Williams asserts the trial court lacked subject matter jurisdiction to enter the consent order because the order purported to transfer real property, an action outside the scope of Chapter 50B. We do not reach this argument because the complaints were dismissed and therefore the trial court could not enter an order under Chapter 50B.

The consent orders provide, in part, that both parties’ claims for domestic violence orders “shall be dismissed.” Where the complaint is voluntarily dismissed, plaintiff is returned “to the legal position enjoyed prior to filing of the complaint.” Augur v. Augur, 356 N.C. 582, 590, 573 S.E.2d 125, 131 (2002) (citing Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 593, 528 S.E.2d 568, 570 (2000)). Accordingly, no allegation of domestic violence remained. Although our District Courts are empowered to enter protective orders or approve consent agreements under Chapter 50B, these orders are authorized only “to bring about a cessation of acts of domestic violence.” N.C. Gen. Stat. § 50B-3(a) (2001). The court’s authority to enter a protective order or approve a consent agreement is dependent upon finding that an act of domestic violence occurred and that the order furthers the purpose of ceasing acts of domestic violence. See Brandon v. Brandon, 132 N.C. App. 646, 654, 513 S.E.2d 589, 595 (1999) (where a protective order does not contain a conclusion of law supported by adequate findings of fact that domestic violence occurred, the “conclusion [of law] cannot provide grounds for issuance of the DVPO [Domestic Violence Protective Order]”); Augur, 356 N.C. at 590, 573 S.E.2d at 131 (where the court concludes there was no act of domestic violence, the court may not enter a protective order and the court’s decision “ha[s] the effect of leaving defendant exactly where he was prior to the filing of plaintiff’s complaint”); Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982) (Chapter 50B authorizes the trial court to enter protective orders only where there is an act of domestic violence occurring on or after the effective date of the statute). Although the concurring opinion states these cases do not arise from mutual domestic violence protective orders, we find this distinction between cases arising from mutual claims for domestic violence and claims by only one party is immaterial because the statute generally does not distinguish between mutual claims and claims by only one party requesting a domestic violence protective order.²

Further, the concurring opinion’s quote from In Re Estate of Peebles, 118 N.C. App. 296, 300, 454 S.E.2d 854, 857 (1995) which was reiterated in Buckingham v. Buckingham, 134 N.C. App. 82, 89, 516 S.E.2d 869, 875 (1999) is not applicable here because those cases merely explain that a consent order need not contain findings of fact and conclusions of law as required by N.C. Gen. Stat. § 1A-1, Rule 52 (2001). Here, there is no assertion that this order is invalid for failing to have Rule 52 findings of fact and conclusions of law. Rather, the issue is whether by dismissing the domestic violence complaints the court loses its authority to enter any domestic violence protective order. We hold it does. Therefore, since the order in the case at bar dismissed the complaints for a domestic violence order, and the court could not enter an order approving a consent agreement for the purpose of ceasing domestic violence pursuant to Chapter 50B, the consent order must be reversed.

The concurring opinion considers that the April 2002 order “may still be enforceable under contract law.” Whether the order constitutes a valid contract has not been raised by the parties or litigated at the trial level; accordingly it is not properly before our appellate court.

The order of the trial court is

Vacated.

Judge HUDSON concurs. Judge WYNN concurs in the result in a separate opinion.

1 . In this opinion we consolidate and address both Ms. Williams’ appeals: COA02-1431, from the 21 June order, and COA02-1586, from the 26 July order.

2 . We recognize that mutual claims require an additional complaint and detailed findings by the court. See N.C. Gen. Stat. § 50B-3(b) (2001).