Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
Collateral Estoppel and Res Judicata_domestic violence protective order_subsequent child custody proceeding
Collateral estoppel binds the parties and precluded a judge making a custody
determination from making findings contrary to those made by a prior judge who ruled on cross-
petitions for domestic violence protective orders.
David Shawn Clark, P.A., by D. Shawn Clark, for plaintiff-
Sherwood Carter, for defendant-appellee.
Shannon Daniel Doyle (plaintiff) appeals from the trial court's order granting primary physical custody of his minor child, S.D.D. (minor child) to Laura Patricia Doyle (defendant). We reverse and remand.
44. That the Plaintiff has taken no
responsibility for the altercation . . . .
. . . .
46. That subsequent to this incident,
the Defendant filed criminal charges against
the Plaintiff and obtained an Emergency
Domestic Violence Protective Order against the
Plaintiff. The Emergency Order was issued by
the Honorable Judge C. Thomas Edwards. The
Defendant's complaint for the domestic
violence protective order was set for hearingand the criminal charges were set for district
47. That the Plaintiff filed an answer
and counterclaim to the Defendant's complaint
for a domestic violence protective order in
which he alleged that the Defendant had
committed acts of domestic violence against
him and he requested that he be granted a
domestic violence protective order against the
Defendant. The Court takes judicial notice of
the pleadings and court orders in this file
04-CVD-1168 and the file is herein
incorporated by reference.
. . . .
53. That the parties' requests for
domestic violence protective orders against
one another were heard on May 17, 2004 in
front of the Honorable Judge John Mull during
a scheduled session of domestic violence
protective order hearings.
54. That at the hearing Judge Mull
dismissed the Defendant's complaint for a
domestic violence protective order and granted
the Plaintiff's complaint for a domestic
violence protective order against the
55. That Judge Mull made findings that
the Defendant and or the Defendant's minor
children were the aggressors in the
altercation and that the Defendant had
committed acts of domestic violence against
56. That this Court, after hearing the
case on its merits, respectfully disagrees
with the findings of the Honorable Judge John
Mull with regards to the nature and
circumstances surrounding the altercation that
occurred on April 18, 2004.
. . . .
78. That the Defendant does not suffer
from any anger management or control issues.
The Defendant has been identified as a victim
of domestic violence and is in need of further
counseling and therapy to address this issue.
Both Judge Mull's prior order and Judge Sigmon's order addressed the acts of domestic violence on 18 April 2004. The issue is whether collateral estoppel precluded Judge Sigmon from revisiting Judge Mull's factual determinations.
Each of the requirements set out in King for identity of issues is met. 284 N.C. at 358, 200 S.E.2d at 806. The issues relating to the events of 18 April 2004 addressed by Judge Mull were identical to those considered by Judge Sigmon, as Judge Sigmon's custody order indicates on its face. Judge Sigmon simply disagreed with Judge Mull's prior resolution of the issues.
Further, the question of who was the perpetrator and who was the victim of the domestic violence on 18 April 2004 was: (1) actually litigated before Judge Mull; (2) material and relevant to the disposition of that action; (3) necessary and essential to the resulting judgment; and (4) the sole reason for the Chapter 50B proceeding. Since Judge Mull's order involved the same parties litigating the same specific issues, collateral estoppel bars defendant from relitigating the factual issues relating to the 18 April 2004 events in the subsequent custody proceeding. Defendant, however, argues that Judge Mull's order was not a final judgment and that collateral estoppel does not, therefore, apply. We disagree. Judge Mull's order was a final determination from which defendant could have appealed. Chapter 50B proceedings normally involve two stages: an order granting emergency ex parte relief, followed by a later full evidentiary hearing and entry ofa final order resolving the Chapter 50B action. An appeal from the initial ex parte order generally is interlocutory. See Smart v. Smart, 59 N.C. App. 533, 536, 297 S.E.2d 135, 137-38 (1982) (holding that a party could not appeal from an order under Chapter 50B granting temporary emergency relief because he would be protected by a timely appeal from the trial court's final decree following an evidentiary hearing on the domestic violence complaint). Once the final decree is entered after the evidentiary hearing, a party must appeal or is bound by the factual determinations made by the trial judge.
In Smith v. Smith, 145 N.C. App. 434, 436, 549 S.E.2d 912, 914 (2001), this Court specifically held that a party against whom a domestic violence protective order had been entered under N.C. Gen. Stat. § 50B-1(a)(2) could appeal even though the order was effective for only six months. The collateral legal consequences of the order became final, precluding reconsideration of the order in any subsequent custody action under N.C. Gen. Stat. § 50-13.2. Id.; Thomas M. McInnis & Assocs., Inc., 318 N.C. at 434, 349 S.E.2d at 560 (Plaintiff did not appeal the adverse determination and the judgment became final for purposes of collateral estoppel.). Since defendant could have appealed from Judge Mull's 19 May 2004 order, the issues resolved in that order were finally determined and binding on Judge Sigmon. Id.
Defendant argues nonetheless that a temporary order entered under the act 'shall be without prejudice,' and nothing precludes a de novo hearing under Chapter 50, citing G.S. § 50B-(4). Itappears that defendant is actually referring to N.C. Gen. Stat. § 50B-3(a1)(4), which provides:
(a1) Upon the request of either party at a hearing after notice or service of process, the court shall consider and may award temporary custody of minor children and establish temporary visitation rights as follows:
. . . .
(4) A temporary custody order entered pursuant
to this Chapter shall be without prejudice and
shall be for a fixed period of time not to
exceed one year. Nothing in this section
shall be construed to affect the right of the
parties to a de novo hearing under Chapter 50
of the General Statutes. Any subsequent
custody order entered under Chapter 50 of the
General Statutes supercedes a temporary order
issued pursuant to this Chapter.
Judge Mull's order was not a temporary custody order and did not
include findings, conclusions, or decrees relating to custody.
The plain language of this provision indicates that when the trial court makes a temporary custody determination under Chapter 50B, the issue of custody may be heard de novo under Chapter 50. Nothing in the statute suggests any legislative intent to allow a de novo hearing on the central factual question regarding whether a party committed domestic violence. Such a result would undermine the statute's mandate that [i]f the court . . . finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence. N.C. Gen. Stat. § 50B-3(a). A defendant could negate the effect of the Chapter 50B order by relitigating theissues in Chapter 50 proceedings. This relitigation would cause judicial inefficiency.
As N.C. Gen. Stat. § 50B-3(a1)(4) indicates, Judge Mull's order did not preclude Judge Sigmon from awarding primary physical custody to defendant if the custody decision was supported by proper findings of fact. Judge Sigmon's order included 19 separate findings of fact relating to issues previously resolved by Judge Mull. The order appealed from is reversed and remanded for further proceedings in which the custody determination respects Judge Mull's final determination that defendant was the perpetrator of the domestic violence on 18 April 2004 and plaintiff was the victim. Although N.C. Gen. Stat. § 50-13.2 specifically required Judge Sigmon to consider the events of 18 April 2004, collateral estoppel renders Judge Mull's findings of fact binding on the subsequent child custody proceeding regarding those events.
*** Converted from WordPerfect ***