Martin v. Martin

822 S.E.2d 756

Erin Lynn MARTIN, Plaintiff,

v.Shawn Michael MARTIN, Defendant.

No. COA18-465

Court of Appeals of North Carolina.

Filed: December 18, 2018

Gailor Hunt Jenkins Davis Taylor & Gibbs, PLLC, Raleigh, by Jonathan S. Melton and Stephanie J. Gibbs, for plaintiff-appellee.

Smith Debnam Narron Drake Saintsing & Myers, L.L.P., Raleigh, by Alicia J. Jurney and Kristin H. Ruth, for defendant-appellant.

ZACHARY, Judge.

Shawn Michael Martin ("Defendant-Husband") appeals from the entry of a Domestic Violence Order of Protection and an Amended Domestic Violence Order of Protection. The trial court violated the due process rights of Defendant-Husband by allowing Plaintiff-Wife to present evidence of alleged acts of domestic violence not specifically pleaded in her Complaint. Further, because the domestic violence custody order in this case is more than one year old, it has expired and is moot. Accordingly, the orders entered against Defendant-Husband are reversed in part and remanded, and dismissed in part.

Factual and Procedural Background

Erin Lynn Martin ("Plaintiff-Wife") and Defendant-Husband were married on 21 June 2014, and are the parents of two minor children: Andrew and Elizabeth.¹ The couple and their children moved to North Carolina from Washington on 29 May 2017. About a month later, on 3 July 2017, Plaintiff-Wife filed a Complaint and Motion for Domestic Violence Protective Order, and the trial court entered an Ex Parte Domestic Violence Order.

On 12 July 2017, the Wake County Sheriff’s Office unsuccessfully attempted to serve Defendant-Husband with the Summons, Complaint, and Ex Parte Order. Defendant-Husband filed an "Answer to Complaint and Motion for Domestic Violence Protective Order Counterclaim for Attorney Fees" denying all allegations of domestic violence on 23 August 2017. Both parties consented to a 12 September 2017 hearing on Plaintiff-Wife’s Motion for a Domestic Violence Protective Order, at which time Defendant-Husband was officially served with the Summons, Complaint, and Ex Parte Order.

This matter came on for hearing on 12 September 2017 before the Honorable Margaret P. Eagles in Wake County District Court. Following the hearing, the trial court filed its Domestic Violence Order of Protection against Defendant-Husband. Shortly thereafter, the parties came to an agreement concerning custody of the minor children, and the trial court entered its Amended Domestic Violence Order of Protection, granting temporary legal and physical custody of the minor children to Plaintiff-Wife and visitation privileges with the minor children to Defendant-Husband. Defendant-Husband timely appealed two days later on 14 September 2017.

At the time the Domestic Violence Order of Protection was filed, dual custody proceedings were pending in Washington and in North Carolina. The Washington custody proceeding was scheduled to occur on 21 September 2017, nine days after the Order of Protection was filed. The trial court settled the record on appeal on 17 April 2018, but no information concerning subsequent custody proceedings in either state was included in the record.

Discussion

Defendant-Husband argues that the trial court erred by: (1) allowing Plaintiff-Wife to present evidence of alleged incidents of domestic violence not specifically pleaded in her Complaint and Motion for Domestic Violence Protective Order; (2) entering a Domestic Violence Protective Order against Defendant-Husband without concluding as a matter of law that an act of domestic violence had occurred; and (3) entering a child custody order when the trial court lacked subject matter jurisdiction over the minor children.

I. Due Process

Defendant-Husband argues that his due process rights were violated when the trial court allowed Plaintiff-Wife to present evidence of alleged incidents of domestic violence that were not specifically pleaded in her Complaint and Motion for Domestic Violence Protective Order. We agree.

We review alleged violations of constitutional rights de novo . Young v. Young , 224 N.C. App. 388, 393, 736 S.E.2d 538, 543 (2012). Both the United States and North Carolina Constitutions provide that no person can be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV ; N.C. Const. art. I, § 19 ("No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land."). "The expression ‘the law of the land’ ... is synonymous with the expression ‘due process of law.’ " In re W.B.M. , 202 N.C. App. 606, 615, 690 S.E.2d 41, 48 (2010) (citing State v. Ballance , 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949) ). "An important check on the power of the government, the principle of procedural due process requires that the states afford the individual a certain level of procedural protection before a governmental decision may be validly enforced against the individual." DeBruhl v. Mecklenburg Cty. Sheriff’s Office , ––– N.C. App. ––––, ––––, 815 S.E.2d 1, 5 (2018). "Procedural due process protection ensures that government action depriving a person of life, liberty, or property is implemented in a fair manner." W.B.M. , 202 N.C. App. at 615, 690 S.E.2d at 48. "The fundamental premise of procedural due process protection is notice and the opportunity to be heard." Peace v. Emp’t Sec. Comm’n , 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) (citing Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494, 503 (1985) ). "Moreover, the opportunity to be heard must be ‘at a meaningful time and in a meaningful manner.’ " Id. (quoting Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62, 66 (1965) ). "[T]he opportunity to be heard and to challenge the truth of the adversary’s assertions is part and parcel of due process." State v. Byrd , 363 N.C. 214, 223, 675 S.E.2d 323, 328 (2009) (citing Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865, 873 (1950) ).

A domestic violence protective order may be sought by any individual residing in this State by filing a civil action or motion "alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person." N.C. Gen. Stat. § 50B-2(a) (2017). While our Supreme Court has stated that "a defendant [must] be given notice and the opportunity to be heard before entry of a protective order[,]" Byrd , 363 N.C. at 223, 675 S.E.2d at 328, our courts have not yet addressed the question of whether a complainant may present evidence at trial of claimed acts of domestic violence not alleged in the complaint.

This Court has previously recognized that the entry of a domestic violence protective order "involves both legal and non-legal collateral consequences." Mannisev. Harrell , ––– N.C. App. ––––, ––––, 791 S.E.2d 653, 660 (2016). "A domestic violence protective order may ... place restrictions on where a defendant may or may not be located, or what personal property a defendant may possess or use." Id. at ––––, 791 S.E.2d at 660. Additionally, a prior domestic violence order may be "consider[ed] ... by the trial court in any custody action involving [a] [d]efendant." Smith v. Smith , 145 N.C. App. 434, 436, 549 S.E.2d 912, 914 (2001). "[N]on-legal collateral consequences" may also include "the stigma that is likely to attach to a person judicially determined to have committed domestic abuse." Id. at 437, 549 S.E.2d at 914 (brackets omitted).

For example, this Court has recognized that "a person applying for a job, a professional license, a government position, admission to an academic institution, or the like, may be asked about whether he or she has been the subject of a domestic violence protective order." Id. (brackets omitted). Because of the potential significant and lasting adverse collateral consequences faced by those against whom a domestic violence protective order is entered, it is imperative that "[t]he entry of a domestic violence protective order ... comport with constitutional due process." Mannise , ––– N.C. App. at ––––, 791 S.E.2d at 660.

Other jurisdictions have addressed the issue of notice, and we find their analyses persuasive. In De Leon v. Collazo , 178 So.3d 906 (Fla. Dist. Ct. App. 2015), Ms. Collazo filed a "sworn petition for injunction for protection against domestic violence ... [which] included several pages of specific allegations detailing abusive conduct by Mr. De Leon over the course of their relationship." Id. at 907. However, at the hearing, "Ms. Collazo testified to a number of acts and events that were not included in her sworn petition." Id. Although Mr. De Leon objected to the testimony, the trial court entered the permanent injunction. Id. at 908. The appellate court held that the admission into evidence of the unpleaded allegations violated Mr. De Leon’s due process rights "because he was given neither notice of the allegations ... nor a full and fair opportunity to prepare to meet those allegations." Id. at 908-09.

Further, in H.E.S. v. J.C.S. , 175 N.J. 309, 815 A.2d 405 (2003), the plaintiff filed a domestic violence complaint against the defendant detailing specific allegations of abuse. Id. at 408-09. At the hearing, the plaintiff testified during direct examination about an incident alleged in her complaint, and was then asked by counsel "whether [the] defendant had ever acted that way before." Id. at 409. Defense counsel objected on the grounds that the complaint failed to give notice of past acts of domestic violence. Id. Over the defendant’s objection, the trial court allowed the plaintiff to testify to the unpleaded prior acts of domestic violence committed by the defendant. Id. On appeal, the New Jersey Supreme Court held that allowing testimony of allegations not pleaded in the complaint "constitute[d] a fundamental violation of due process ... convert[i...