in the Court of Appeals 31 October 2018.
by defendant from orders entered 12 September 2017 by Judge
Margaret P. Eagles in Wake County No. 17 CVD 600980 District
Court. Petition for Rehearing allowed 8 February 2019. The
following opinion supersedes and replaces the prior opinion
filed 18 December 2018.
Hunt Jenkins Davis Taylor & Gibbs, PLLC, by Jonathan S.
Melton and Stephanie J. Gibbs, for plaintiff-appellee.
Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia
J. Jurney and Kristin H. Ruth, for defendant-appellant.
Michael Martin ("Defendant-Husband") appeals from a
Domestic Violence Order of Protection and an Amended Domestic
Violence Order of Protection. For the reasons stated herein,
we reverse the orders entered against Defendant-Husband.
Lynn Martin ("Plaintiff-Wife") and
Defendant-Husband are the parents of two minor children. The
family moved to North Carolina from the State of Washington
on 29 May 2017.
month later, on 3 July 2017, Plaintiff-Wife filed a Complaint
and Motion for Domestic Violence Protective Order alleging
that Defendant-Husband committed acts of domestic violence
against Plaintiff-Wife and their children. That same day, the
trial court entered an Ex Parte Domestic Violence Order of
Protection. Defendant-Husband filed an answer on 23 August
2017 denying all allegations of domestic violence.
motion was heard on 12 September 2017 before the Honorable
Margaret P. Eagles in Wake County District Court. Following
the hearing, the trial court entered a Domestic Violence
Order of Protection against Defendant-Husband. Shortly
thereafter, the parties came to an agreement concerning
custody of the children, and the trial court entered an
Amended Domestic Violence Order of Protection. The trial
court granted temporary legal and physical custody of the
children to Plaintiff-Wife and visitation privileges to
Defendant-Husband. Defendant-Husband timely appealed two days
later, on 14 September 2017.
time of the hearing, dual custody proceedings were pending in
Washington and in North Carolina. The Washington custody
proceeding was scheduled for 21 September 2017, nine days
after the domestic violence protective orders were filed. On
17 April 2018, the trial court entered a consent order
settling the record on appeal, but no information concerning
subsequent custody proceedings in either state was included
in the record.
brief to this Court, Defendant-Husband asserted that we have
"never addressed whether a plaintiff seeking a
protective order may present evidence of specific acts not
raised in any court filing prior to trial," allegations
of which the defendant received no notice. Plaintiff-Wife did
not dispute Defendant-Husband's assertion that this case
presented an issue of first impression, but argued that
Defendant-Husband's due process rights were not violated
by any alleged lack of notice.
Court issued its opinion in this case on 18 December 2018,
concluding that the trial court violated
Defendant-Husband's due process rights "by allowing
Plaintiff-Wife to present evidence of alleged acts of
domestic violence not specifically pleaded in her
Complaint." Martin v. Martin, __ N.C.App. __,
__, 822 S.E.2d 756, 758 (2018) ("Martin
I"). Accordingly, we reversed the domestic violence
protective orders entered against Defendant-Husband and
remanded this matter to the trial court for further
proceedings. Id. at__, 822 S.E.2d at 762. After the
mandate issued, but within the time allowed by N.C. R. App.
P. 31, Plaintiff-Wife filed a petition for rehearing,
requesting that the Court reconsider its ruling in light of
Jarrett v. Jarrett, 249 N.C.App. 269, 790 S.E.2d
883, disc. review denied, 369 N.C. 194, 793 S.E.2d
259 (2016), in which this Court addressed the sufficiency of
notice of domestic violence allegations. We allowed
Plaintiff-Wife's petition for rehearing on 8 February
2019. This opinion replaces and supersedes Martin I;
therefore, we will reconsider the issues raised in the
argues that the trial court erred by: (1) allowing
Plaintiff-Wife to present evidence of alleged incidents of
domestic violence of which Defendant-Husband did not receive
notice before trial, in violation of his due process rights;
(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 to do so.
Unpleaded Allegations of Domestic Violence
first argues on appeal that the trial court erred by
admitting testimony supporting allegations of domestic
violence not pleaded in Plaintiff-Wife's complaint, and
that the admission of that testimony violated his due process
courts must avoid constitutional questions, even if properly
presented, where a case may be resolved on other
grounds." James v. Bartlett, 359 N.C. 260, 266,
607 S.E.2d 638, 642 (quotation marks omitted),
reconsideration denied, 359 N.C. 633, 613 S.E.2d 691
(2005). The question of whether a trial court can properly
admit evidence in support of unpleaded allegations of
domestic violence may be answered by reference to our Rules
of Civil Procedure.
Carolina remains a notice-pleading state, which means that a
pleading filed in this state must contain "[a] short and
plain statement of the claim sufficiently particular to give
the court and the parties notice of the transactions,
occurrences, or series of transactions or occurrences,
intended to be proved showing that the pleader is entitled to
relief." N.C. Gen. Stat. § 1A-1, Rule 8(a)(1)
(2017). "A complaint is adequate, under notice pleading,
if it gives a defendant sufficient notice of the nature and
basis of the plaintiff's claim and allows the defendant
to answer and prepare for trial." Burgess v.
Busby, 142 N.C.App. 393, 399, 544 S.E.2d 4, 7, disc.
review improvidently allowed, 354 N.C. 351, 553 S.E.2d
679 (2001). While Rule 8 "does not require detailed fact
pleading, . . . it does require a certain degree of
specificity . . . [, and] sufficient detail must be given so
that the defendant and the Court can obtain a fair idea of
what the plaintiff is complaining, and can see that there is
some basis for [relief]." Manning v. Manning,
20 N.C.App. 149, 154, 201 S.E.2d 46, 50 (1973).
Court has previously recognized that the entry of a domestic
violence protective order "involves both legal and
non-legal collateral consequences." Mannise v.
Harrell, 249 N.C.App. 322, 332, 791 S.E.2d 653, 660
(2016). For instance, "[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. Additionally, the
existence of a prior domestic violence protective order may
be "consider[ed] . . . by the trial court in any custody
action involving [the] [d]efendant." Smith v.
Smith, 145 N.C.App. 434, 436, 549 S.E.2d 912, 914
defendant may also suffer "non-legal collateral
consequences" as a result of "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 and quotation marks 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 a defendant receive adequate notice of
the allegations in the complaint.
court does not err by admitting evidence in support of
unpleaded domestic violence allegations, so long as the
allegations in the complaint provide sufficient notice of the
nature and basis of any unpleaded allegations. See
Jarrett, 249 N.C.App. at 276-77, 790 S.E.2d at 888. For
instance, in Jarrett, the plaintiff filed a
complaint on 20 July 2015 alleging domestic violence and
claiming that in May 2015, the defendant "followed [the
plaintiff] on the highway, cut her off, and slammed on his
brakes." Id. at 276, 790 S.E.2d at 888. The
defendant had also committed similar incidents of aggressive
driving in March and June of 2015; however, the
plaintiff's complaint only alleged the May 2015 incident.
Id. The plaintiff did file an amended complaint on
24 July 2015 alleging the March and June incidents, but did
not serve the defendant with the amended complaint until the
day of the hearing. Id. at 277, 790 S.E.2d at 888.
At the hearing, the plaintiff testified about all three
incidents of aggressive driving. Id. at 276, 790
S.E.2d at 888. The defendant argued to this Court that the
trial court should not have permitted the plaintiff to
testify about alleged incidents of domestic violence not
pleaded in her original complaint. Id. However,
applying Rule 8, this Court concluded that the
"plaintiff's 20 July 2015 complaint gave [the]
defendant sufficient notice of the nature and basis of her
claim." Id. at 277, 790 S.E.2d at 888. Indeed,
the defendant did "not argue that he was unable to
prepare a responsive pleading or that he was unable to
prepare for the hearing." Id. Thus, the
plaintiff's allegation of one incident of aggressive
driving in July 2015 provided the defendant with sufficient
notice of the plaintiff's unpleaded allegations arising
from similar incidents in March and June 2015, as his
aggressive driving was the nature and basis of the
case, the trial court found, in both of its domestic violence
protective orders, that Defendant-Husband placed
Plaintiff-Wife in fear of imminent bodily injury and
continued harassment that rose to such a level as to inflict
substantial emotional distress. Specifically, the trial court
defendant was listening to plaintiff outside her bedroom
door, then after plaintiff locked the door, defendant
repeatedly pounded on the door and broke into plaintiff's
bedroom, causing her fear of physical assault; on 6/30/2017,
defendant threw keys at plaintiff and yelled profanity at
her; defendant has a "flashpoint" temper (per
testimony) and engages in excessively aggressive driving
while plaintiff and children are in the car, causing
plaintiff fear; plaintiff was afraid of defendant and what he
might do; since the filing of DVPO, defendant has hacked into
plaintiff's email account, which has caused her emotional
on our review of the record, the trial court heard testimony
of a significant number of unpleaded allegations of domestic
violence; however, the trial court only made findings about
three of those unpleaded allegations in concluding that
Defendant-Husband committed domestic violence. Those
unpleaded allegations include: (1) "defendant . . .
engages in excessively aggressive driving while plaintiff and
children are in the car, causing plaintiff fear"; (2)
"defendant was listening to plaintiff outside her
bedroom door, then after plaintiff locked the door, defendant
repeatedly pounded on the door and broke into plaintiff's
bedroom, causing her fear of physical assault"; and (3)
"defendant has hacked into plaintiff's email
account, which has caused her emotional distress."
well established that "[i]n order to preserve an issue
for appellate review, a party must have presented to the
trial court a timely request, objection, or motion, stating
the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from
the context." N.C. R. App. P. 10(a)(1). Of the unpleaded
allegations of domestic violence, Defendant-Husband only
objected to the testimony concerning aggressive driving:
[Plaintiff's Counsel:] Now, [Defense Counsel] asked you
about whether [Defendant-Husband] had physically harmed you.
Did he ever put you and the children in harm's way?
A. [Defendant-Husband] had a lot of road rage, a lot of road
rage, and we basically couldn't drive to the store
without him racing ...