1. Appeal and Error_notice of appeal_timeliness
An appeal was heard in the Court of Appeals, even though the notice of appeal was not
timely given from an April order, where there was a subsequent June order which was a
recapitulation of the first, and from which notice of appeal was timely given.
2. Domestic Violence_ consent judgment--complaints dismissed_no finding of violence
The trial court could not enter an order approving a consent judgment intended to stop
domestic violence after dismissing the parties' domestic violence complaints. The court's
authority to enter a protective order or to approve a consent agreement depends upon a finding
that an act of domestic violence occurred.
Judge WYNN concurring in the result.
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.
(See footnote 1)
We find because the order approving the consent agreement
dismissed the domestic violence claims, the trial court could notenter 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.
[1] 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. [2] 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 at131 (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.
(See footnote 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.
WYNN, Judge concurring in the result.
I disagree with the majority's holding that because the trial
court's order approving the consent agreement dismissed the
domestic violence claims, the trial court could not enter its order
under Chapter 50B. Under N.C. Gen. Stat. § 50B-3(a), “the court,
..., may grant any protective order or approve any consent
agreement to bring about the cessation of acts of domestic
violence.” As I believe the consent agreement was entered into by
the parties in order to bring about a cessation of acts of domestic
violence, I would conclude the trial court had authority to enter
the consent order. However, because the trial court failed to
comply with N.C. Gen. Stat. § 50B-3(b), I concur in the result. In this case, the parties entered into a consent agreement on
22 April 2002, which provided:
1. Files 02 CVD 1071 and 02 CVD 1038 shall
be consolidated into 02 CVD 1071;
2. Both parties claims for domestic violence
orders shall be dismissed;
3. Both parties, however, agree that the
Court shall have jurisdiction over them
personally so as to enforce the consent
agreement of the parties herein as a
consent judgment;
4. Plaintiff (Steven O. Bryant) shall have
the immediate possession and use of a
rental house owned by Defendant (Dale O.
Williams) at 1125 Loblolly Lane, Newton;
5. Defendant shall continue to have the use
and possession of the residence jointly
owned by Plaintiff and Defendant on the
condition that not later than 5 p.m.
April 24, 2002 the Defendant shall
deliver to the Plaintiff in the presence
of the Catawba County Sheriff without
damage air compressor, tool box and
tools, space heater and tank, metal desk,
air rifle and scope, entertainment
center, computer desk, 35" Sony T.V.,
odds and ends, nuts and bolts;
6. Not later than June 1, 2002 Defendant
shall deliver to Plaintiff [the] deed to
the rental [home] without any liens or
encumbrances;
7. Plaintiff shall deliver to Defendant [a]
deed conveying all his interest in the
jointly owned house with the Defendant
having refinanced or otherwise removed
Plaintiff's name from all debts secured
by the residence;
8. Simultaneously with the exchange of
deeds, the Plaintiff shall pay to
Defendant $5,000;
9. A restraining order shall be entered
providing that the Plaintiff and
Defendant shall not contact each other orotherwise assault, harass, go about, or
otherwise interfere with each other;
10. Neither party shall go to the residence
of the other without the presence of a
law enforcement officer pursuant to the
terms of this Order. This shall also
apply to both the place of work and
public areas where one or the other may
be present;
11. Plaintiff shall pay the April 2002
$441.00 home equity payment on the home
owned jointly by the parties.
Pursuant to the terms of this agreement, the parties will live in
separate homes, have restraining orders against one another for
their protection, and have terminated joint debts. Such an
agreement is permissible under Chapter 50B because it was a consent
agreement entered into by the parties “to bring about a cessation
of acts of domestic violence.” See N.C. Gen. Stat. § 50B-3(a).
Therefore, the provision in the consent order dismissing the
parties respective claims for domestic violence protective orders
did not divest the trial court of jurisdiction to approve the
consent agreement.
Furthermore, I disagree with the majority's conclusion that
“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...” None of the cases cited by the majority in
support of this statement address consent agreements resolving
mutual claims for domestic violence protective orders. See Brandon
v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999); Augur v.
Augur, 356 N.C. 582, 573 S.E.2d 125 (2002); Story v. Story, 57 N.C.
App. 509, 291 S.E.2d 923 (1982). As stated in Buckingham v.
Buckingham, 134 N.C. App. 82, 89, 516 S.E.2d 869, 875 (1999), “aconsent judgment is merely a recital of the parties agreement and
not an adjudication of rights. This type of judgment does not
contain findings of fact and conclusions of law because the judge
merely sanctions the agreement of the parties.” Accordingly, the
validity of a consent agreement resolving mutual claims for a
domestic violence protective order under Chapter 50B is not
dependent upon the trial court finding an act of domestic violence
occurred.
Moreover, it should be pointed out that while the majority
consolidates the two appeals made by Ms. Williams, only her appeal
from the trial court's denial of her Rule 60(b) motion (COA02-1586)
is properly before us. As to the other appeal (02-1431), Ms.
Williams attempts to appeal from the trial court's order approving
the consent agreement without having filed a notice of appeal
during the appropriate time period.
The procedural history of this case shows the following
chronology:
4 April 2002: Ms. Williams files Complaint
and Motion for an Ex Parte Domestic Violence
Protective Order; Order entered.
9 April 2002: Mr. Bryant files Complaint and
Motion for an Ex Parte Domestic Violence
Protective Order; Order denied.
22 April 2002: Both parties inform the trial
court that all issues in controversy have been
resolved by the parties pursuant to the terms
of the Memorandum of Judgment/Order. Ms.
Williams, her attorney, and the Court sign the
Memorandum of Judgment. The Memorandum of
Judgment is filed with the clerk of court.
29 April 2002: Mr. Bryant and his attorney
sign the Memorandum of Judgment.
8 May 2002: Ms. Willams files a Rule 60B
motion.
21 June 2002: Trial court enters an order
incorporating the terms of the Memorandum of
Judgment, stating the agreement is enforceable
by the trial court's contempt powers and
indicating that this Order constitutes a
formal judgment.
21 July 2002: Ms. Williams files Notice of
Appeal from the 21 June 2002 Order.
26 July 2002: Trial court enters order
denying Rule 60B motion.
19 August 2002: Ms. Williams files Notice of
Appeal from the 26 July 2002 order.
While the record shows that the parties stipulated and agreed that
Ms. Williams gave timely Notice of Appeal from the Order filed 21
June 2002, the facts show that the trial court entered the order on
22 April 2002. Indeed, that order was a valid order because it was
“reduced to writing, signed by the judge, and filed with the clerk
of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2001); See In re
Estate of Trull, 86 N.C. App. 361, 357 S.E. 2d 437 (1987).
Typically, a Chapter 50B consent order is entered and filed in
handwritten form, as with the 22 April 2002 order here, and then is
typed and entered nunc pro tunc to the date of the original order
and filed. However, in this case, the 21 June 2002 order was not
entered nunc pro tunc; instead, it recapitulated the April order.
Thus, the record shows that the trial judge entered the order
regarding the distribution of the parties property on 22 April
2002. Since Ms. Williams did not appeal from the 22 April order,
this Court did not acquire jurisdiction to consider the issue
decided by the majority. See N.C.R. App. P. 3 (2001); see also
Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424(1990)(stating “proper notice of appeal requires that a party shall
designate the judgment or order from which appeal is taken.
Without proper notice of appeal, this Court acquires no
jurisdiction. A court may not waive the jurisdictional
requirements of ... Rules 3 and 4, even for good cause shown under
Rule 2, if it finds that they have not been met”). Accordingly, I
would dismiss Ms. Williams appeal from the 21 June 2002 order.
However, Ms. Williams' appeal from Order denying her Rule 60B
motion is properly before this Court.
Regarding Ms. Williams' appeal in COA02-1586, the sole issue
presented by Ms. Williams in her brief is whether the trial court's
order is void for want of subject matter jurisdiction. Ms.
Williams contends the district court partitioned the jointly-owned
property without subject-matter jurisdiction because Chapter 46 of
our statutes vests the superior court with exclusive jurisdiction
over the partitioning of property. However, Chapter 46 applies to
compulsory or judicial partition, not partition by agreement such
as the one in this case. See Keener v. Den, 73 N.C. 132 (1875).
Moreover, Chapter 46 does not vest the superior court with
jurisdiction over the partition of real property unless "one or
more persons claiming real estate as joint tenants or tenants in
common . . . [seek] partition by petition to the superior court."
N.C. Gen. Stat. § 46-3 (2001). Indeed, N.C. Gen. Stat. § 46-1
states that "partition under this Chapter shall be by special
proceeding," and according to N.C. Gen. Stat. § 1-393 et seq., the
Clerk of Court has jurisdiction over special proceedings. See
Baggett v. Jackson, 160 N.C. 26, 76 S.E.86 (1912)(explaining thesuperior court acquires jurisdiction over proceedings to partition
lands upon their being transferred by the clerk thereto, in terms,
and may proceed therewith and fully determine all matters in
controversy). Thus, the trial court had subject-matter
jurisdiction.
However, the consent order must be deemed void as it failed to
comply with the requirements of N.C. Gen. Stat. § 50B-3(b). Under
this provision, “Protective orders entered or consent orders
approved pursuant to [Chapter 50B] shall be for a fixed period of
time not to exceed one year.” In this case, the consent order did
not provide for the one-year limitation.
Nevertheless, the record shows the parties in this case
reached an agreement to divide their properties and then sought to
have the trial court approve that agreement as a consent order
under Chapter 50B. As indicated in the record, the trial court
entered a memorandum of judgment on 22 April 2002, which indicated
the parties had reached an agreement and agreed to be legally and
mutually bound by the terms and conditions. In that light, as
stated by the majority, the subject agreement while not enforceable
as a consent judgment under N.C. Gen. Stat. § 50B-3, may still be
enforceable under contract law. See Harborgate Property Owners
Ass'n v. Mountain Lake Shores Development Corp., 145 N.C. App. 290,
297, 551 S.E.2d 207, 212 (2001)(stating “ordinarily, a consent
judgment is the contract between the parties entered upon the
records with the approval and sanction of the court and it is
construed as any other contract”).
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