Subjective Fear in the 50B Protection Order Context
A recent unpublished opinion by the NC Court of Appeals reminds family law attorneys and criminal defense lawyers alike that “fear of imminent bodily injury” is a subjective standard and need not be objectively reasonable.
That may come as a surprise to some, given the Court also recently pointed out some of the dire consequences of even being accused of Acts of Domestic Violence.
In the Alleghany County case of Anderson v. Tredwell, (No. COA19-31) family court and domestic violence judges are reminded to:
[E]xercise caution in completing the standard Domestic Violence Protective Order – AOC-CV-306
N.C.G.S. 50B-2(c)(5) requires DV hearings commence on the later between 7 days upon Service of Process and 10 days from the Temporary Restraining Order issued ex parte on what is sometimes an emergency basis.
Continuances of DV proceedings are limited by statute.
There may be one extension not to exceed 10 days. The moving party must provide Good Cause to the Court for a continuance. The parties may also consent to continue the matter.
A Domestic Violence Protection Order does not require and therefore is not dependent on a valid ex parte DVPO. During the formal hearing, the Court determines whether the extension of the DVPO is necessary and appropriate, reviewing the evidence anew.
It may take into consideration the issuance of prior DV Orders, as well as evidence presented by the aggrieved party.
It does not necessarily take into consideration the initial filing. The information contained within the Complaint and Motion for DVPO may be impeached by inconsistent testimony, dispositive documents, and other evidence calling into question the credibility of the moving party, the Plaintiff.
Standard of Review
The NC COA review primarily answers two questions:
- Was there competent evidence to support the District Court Judge’s Findings; and,
- Were the Conclusions of Law proper, considering such facts?
Trial Courts for family law matters are heard in District Court, often by a Family Court Judge. There is no jury or a right to trial by jury of peers in such legal matters.
The Court of Appeals will not consider the facts and render a different judgment on a de novo basis, even if it disagrees with the final ruling of the trial court.
When may a 50B Restraining Order be issued?
People living within North Carolina may seek a form of administrative relief, in the form of a “restraining order” or “protective order” under Chapter 50B of the North Carolina General Statutes.
Such matters are civil filings and therefore heard pursuant to the NC Rules of Civil Procedure.
The Plaintiff may allege, “Act of Domestic Violence” against either a minor who resides with the Plaintiff or the Plaintiff him or herself. N.C.G.S. 50B-2(a).
Any aggrieved party entitled to relief under this Chapter may file a civil action – Bill Powers
Domestic Violence and “Acts of Domestic Violence” may include:
- Attempts to Cause Bodily Injury
- Intentionally causing injury to the body of the Plaintiff (or a member of the Plaintiff’s household or family)
- Placing the Plaintiff in fear of imminent serious bodily injury
- Continued harassment of the Plaintiff
- Placing a member of the Plaintiff’s household or family in fear of imminent serious bodily injury
- Continued harassment of the aggrieved party’s (Plaintiff) family or household
Causing fear of imminent serious bodily injury must rise to the level of inflicting substantial emotional distress.
Criminal charges and violations of N.C.G.S. 14-27.21 through an including N.C.G.S. 14-27.33, as defined in Article 7B of Chapter 14, are as a matter of law deemed Acts Domestic Violence in North Carolina.
Rape and other Sex Offenses include:
- § 14-27.22 Second-degree forcible rape
- § 14-27.22 Second-degree forcible rape
- § 14-27.23 Statutory rape of a child by an adult
- § 14-27.24. First-degree statutory rape
- § 14-27.25. Statutory rape of person who is 15 years of age or younger
- § 14-27.26. First-degree forcible sexual offense
- § 14-27.27. Second-degree forcible sexual offense
- § 14-27.28. Statutory sexual offense with a child by an adult
- § 14-27.29. First-degree statutory sexual offense
- § 14-27.30. Statutory sexual offense with a person who is 15 years of age or younger
- § 14-27.31. Sexual activity by a substitute parent or custodian
- § 14-27.32. Sexual activity with a student
- § 14-27.33. Sexual battery
All but misdemeanor sexual battery are felony criminal charges in North Carolina.
If the family court judge or other sitting District Court Judge finds acts of domestic violence have occurred, as set forth in Plaintiff’s Complaint and Motion for Domestic Violence Protective Order, the law requires, using the word of mandamus “shall,” such judge grant a protection order restraining the defendant from further acts of DV.
Fear of imminent serious bodily injury is a Conclusion of Law that DV occurred. Determinations that an aggrieved party was subject to continued harassment is also “a finding of ultimate fact.” (Stancill v. Stancill, 241 N.C. App. 529 (2015).
Causing the Plaintiff to feel uncomfortable is not enough.
The Plaintiff bears the Burden of Proof, by a Propenderence of Evidence, that the Defendant placed him or her “in fear of serious imminent bodily injury.”
Subjective Standard of Fear
The trial court, in rendering its ruling, must find the Defendant caused fear of imminent serious bodily injury. The Court must find the Plaintiff “actually feared” the Defendant committing an imminent act which would cause bodily injury and that such injury would be serious.
It is a subjective determination and does not require objective reasonableness on the part of the Plaintiff.
That may come as a surprise to some.
Our appellate courts have ruled that the “plain language” of N.C.G.S. 50B-1(a)(2) sets forth the legal standard, imposing “only a subjective test.”
Objective reasonableness on the part of the Plaintiff is not required, at least as to the determination of whether an Act of Domestic Violence may have been committed by the Defendant/Respondent to the cause of action.
Where the trial court finds that a plaintiff is actually subjectively in fear of imminent serious bodily injury, an act of domestic violence has occurred pursuant to Section 50B-1(a)(2) – Brandon v. Brandon, 132 N.C. App. 646 (1999)
Related Statutes and Other Legal Issues involving Domestic Violence
- Domestic Violence Protective Orders in North Carolina
- Restraining Order
- Complaint for Domestic Violence Protective Orders – Filing and Pleadings
- DVPO Violation
If you Googled, “Domestic Violence Lawyers Near Me,” we may be able to help. We regularly help people in the Charlotte metro region with both civil matters and related criminal charges.
Our law firm also provides legal guidance in family law cases, including providing legal representation for 50B matters in Charlotte-Mecklenburg County.
Call NOW to schedule a consultation: 704-342-4357