               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-250

                                 Filed: 5 January 2016

Polk County, No. 14 CVD 211

CHRISTINE HOLDER, Plaintiff.

              v.

CALEB KUNATH, Defendant.


        Appeal by plaintiff from order entered 8 September 2014 by Judge Mack

Brittain in Polk County District Court. Heard in the Court of Appeals 25 August

2015.


        Pisgah Legal Services, by Faith Foote, Olivia A. Williams, Thomas K.
        Gallagher, Erin B. Wilson, and Robin L. Merrell; and Roberts & Stevens, P.A.,
        by Ann-Patton Hornthal, for plaintiff-appellant.

        No brief filed on behalf of defendant-appellee.


        GEER, Judge.


        Plaintiff Christine Holder appeals from the district court’s order dismissing

her complaint and motion for a domestic violence protective order (“DVPO”) against

defendant Caleb Kunath on the grounds that the motion was a “Dueling 50B” to

defendant’s motion for a DVPO against plaintiff. Our review of the record reveals

that the district court conducted a hearing only on defendant’s motion. No hearing

was held on plaintiff’s motion, which was ultimately dismissed without a hearing on

the grounds that plaintiff’s motion was a “Dueling 50B.” Because plaintiff was

entitled to a hearing and the fact that plaintiff and defendant had both filed motions
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                                   Opinion of the Court



for DVPOs was not an adequate basis for dismissing plaintiff’s motion without a

hearing, we reverse the trial court’s order of dismissal and remand for a hearing.

                                          Facts

      Plaintiff and defendant were in a dating relationship for approximately 18

months. Eventually, plaintiff and defendant ended their relationship, and on 25

August 2014, a conflict occurred between plaintiff and defendant that resulted in

defendant being arrested for injury to personal property, interference with emergency

communication, breaking and entering, and assault on a female.                Defendant

ultimately pled guilty to the charges of assault and breaking and entering.

      Subsequently, defendant filed a complaint and motion for a DVPO against

plaintiff that was given the case number 14 CVD 209. In his complaint, defendant

alleged that plaintiff intentionally forced him out of his father’s vehicle while driving,

with the intention to inflict bodily harm. The district court granted an ex parte DVPO

in defendant’s case against plaintiff on 2 September 2014 and sent plaintiff a notice

that a hearing on defendant’s DVPO would take place on 8 September 2014.

      Plaintiff subsequently filed her own complaint and motion for a DVPO against

defendant on 3 September 2014. In her complaint, plaintiff alleged that on 25 August

2014, defendant broke into her residence, assaulted her, caused her bodily injury,

terrorized her six-year-old son, and damaged the premises. Plaintiff also alleged that

defendant threatened her with a knife.        Plaintiff’s complaint was given the file



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number 14 CVD 211. The district court entered an ex parte DVPO against defendant

on 3 September 2014. Plaintiff’s complaint and motion were also calendared for a

hearing on 8 September 2014.

       Although both plaintiff’s and defendant’s motions were set for hearing on 8

September 2014, the record indicates that only defendant’s motion, in 14 CVD 209,

was heard. The transcript caption refers only to 14 CVD 209, with no reference to

plaintiff’s case against defendant, 14 CVD 211.         At the hearing, the trial judge

referred to defendant as the plaintiff, and plaintiff as the defendant. No reference

was made at the hearing to plaintiff’s motion for a DVPO against defendant.

       During the hearing on 8 September 2014, both parties appeared pro se.

Defendant testified first and claimed that on 25 August 2014, he went to plaintiff’s

home to retrieve his belongings, but that plaintiff prevented him from doing so.

Defendant also testified that plaintiff took his father’s vehicle and drove it with

defendant in the back of the hatch, causing damage to the vehicle and bruising

defendant’s ribs.   On cross-examination, defendant admitted to breaking into

plaintiff’s residence on 25 August 2014 and to taking plaintiff’s phone and throwing

it.   However, he denied threatening or assaulting plaintiff.          Defendant also

acknowledged that on or about 3 September 2014, he pled guilty to the assault and

breaking and entering charges arising out of the 25 August 2014 events.




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                                   Opinion of the Court



      Plaintiff then testified that on 25 August 2014, defendant broke into and

entered her home, assaulted her, and tried to throw her through a glass coffee table.

Plaintiff testified further that defendant fractured her collarbone and that these

events took place in front of her six-year-old autistic son. Plaintiff also testified that

the reason she took defendant’s vehicle was to flee defendant. On cross-examination,

plaintiff admitted to threatening defendant.

      At the conclusion of the hearing, the trial judge stated that since defendant

was the plaintiff, he had the burden “to prove the facts to [the trial judge] by the

greater weight of the evidence.” Further, the trial judge indicated that he had “heard

two different stories from two different people, neither of whom have -- would know

of any reason why either of you would not be truthful and honest about what

happened.” The trial judge concluded that since he could not determine who was

telling him the correct version of what took place on 25 August 2014, defendant (“the

plaintiff” in that proceeding) had not met his burden. Therefore, the trial judge

dismissed the ex parte DVPO that was previously entered against plaintiff (“the

defendant” in that 8 September 2014 proceeding).

      The trial judge then asked defendant whether he had pled guilty the week

before the hearing to criminal charges of assault on a female and breaking and

entering, and defendant stated that he had and that he had attended an anger

management class. The trial judge also stated, “I assume there was restriction put



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                                    Opinion of the Court



on you in criminal court that you should not have contact with [plaintiff]; is that

correct?,” to which defendant responded, “That is correct.”

         The transcript for the 8 September 2014 hearing indicates that the proceedings

concluded at 9:43 a.m. At 10:13 a.m., the trial judge filed an order in 14 CVD 209

concluding that defendant (referred to as “the plaintiff” at the hearing) had failed to

prove grounds for issuance of a DVPO and stating: “Court not able to determine

whether plaintiff’s or defendant’s version of story is correct version.”

         Nothing in the transcript or record indicates plaintiff’s motion for a DVPO

against defendant was ever heard or even referenced by the lower court. However,

the trial judge also entered an order dismissing plaintiff’s proceeding against

defendant in 14 CVD 211 at the same time, 10:13 a.m., that he filed the order

dismissing defendant’s motion. The trial judge wrote on a generic form dismissal

order not specifically intended for use in DVPO proceedings that the reason for the

dismissal of plaintiff’s proceeding was simply: “Dueling 50B to 14 CVD 209.” The

trial judge did not indicate whether the dismissal of plaintiff’s motion against

defendant was with or without prejudice. Plaintiff timely appealed the order to this

Court.

                                       Discussion




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                                   Opinion of the Court



       On appeal, plaintiff argues that the trial court erred by dismissing her

complaint and motion for a DVPO on the basis that it was a “Dueling 50B to 14 CVD

209” without first holding an actual hearing on her motion. We agree.

       In Hensey v. Hennessy, 201 N.C. App. 56, 67, 685 S.E.2d 541, 549 (2009), this

Court held that “neither the Rules of Civil Procedure nor Chapter 50B exempts

hearings pursuant to N.C. Gen. Stat. § 50B-3 from the requirement that the trial

court hear testimony from witnesses.” This Court ruled in Hensey that the “most

troubling aspect” of that case was that the hearing transcript indicated the trial judge

granted a DVPO “without hearing any evidence because he ‘heard it on the criminal

end.’ ” Id.

       Nothing in the record indicates that the trial judge in this case held a hearing

on plaintiff’s motion for a DVPO against defendant. Nowhere in the transcript is it

apparent that the trial judge was even aware during the hearing of plaintiff’s motion

or that he had two cases pending, until he entered orders dismissing both cases.

Further, the hearing transcript caption identifies the file number as 14 CVD 209,

with no reference to plaintiff’s case, file number 14 CVD 211. In addition, during the

hearing, the only case referenced was defendant’s, 14 CVD 209. The trial judge never

indicated that he was conducting a hearing on or receiving evidence in plaintiff’s case,

and he never notified plaintiff that he was dismissing her case prior to filing the order.




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                                  Opinion of the Court



The trial judge was, however, required under Hensey to actually conduct a hearing

on plaintiff’s motion before entering an order in that case.

      In addition, N.C. Gen. Stat. § 50B-2(c)(5) (2013) (emphasis added) provides

that “[u]pon the issuance of an ex parte order . . . a hearing shall be held within 10

days from the date of issuance of the order or within seven days from the date of

service of process on the other party, whichever occurs later.” Similarly, N.C. Gen.

Stat. § 50B-3(b) (2013), which governs the granting of mutual DVPOs when, as here,

both parties have filed motions, states that the court must ensure that “the right of

each party to due process is preserved” before entering mutual orders. Under both

the federal and state constitutions, “[t]he fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”

Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32, 96 S. Ct. 893, 902 (1976)

(quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66, 85 S. Ct. 1187,

1191 (1965)). Because the record is devoid of any indication that the trial judge was

aware of plaintiff’s motion at the time of the hearing or that any hearing was held on

plaintiff’s motion, plaintiff’s statutory and due process rights to a hearing were

violated.

      Additionally, the order ultimately entered by the trial judge does not provide

a sufficient basis for the dismissal. The trial judge, without specifying that the

dismissal was with or without prejudice, gave as the reason for the dismissal simply:



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“Dueling 50B to 14 CVD 209.” It is not clear what specifically the trial judge was

concluding. To the extent that the order can be read as concluding that simply

because both parties had filed motions for a DVPO, plaintiff was not entitled to

proceed, we know of no authority that would support such a conclusion.

       Indeed, N.C. Gen. Stat. § 50B-3(b) specifically allows a trial court to enter

mutual orders to be issued if the following conditions are met:

              Protective orders entered, including consent orders, shall
              not be mutual in nature except where both parties file a
              claim and the court makes detailed findings of fact
              indicating that both parties acted as aggressors, that
              neither party acted primarily in self-defense, and that the
              right of each party to due process is preserved.

Here, the trial judge indicated at the hearing on defendant’s motion that he found

both plaintiff’s and defendant’s testimony regarding the incident on 25 August 2014

to be credible, announcing that he “heard two different stories from two different

people, neither of whom have -- would know of any reason why either of you would

not be truthful and honest about what happened.”           The trial judge then denied

defendant a DVPO on the grounds that the “Court [is] not able to determine whether

plaintiff’s or defendant’s version of story is [the] correct version.”

       The trial judge, however, never referenced plaintiff’s motion at the 8

September 2014 hearing. If he had been aware of plaintiff’s motion, he could have

entered mutual orders with respect to both plaintiff and defendant under N.C. Gen.




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Stat. § 50B-3(b) based on his belief that the parties were each credible. Having two

dueling DVPO motions did not require denial of both of the motions.

      We cannot conclude that the trial judge would still have denied plaintiff’s

motion if he had understood that the dueling nature of the parties’ motions did not

require denial. Specifically, we note that, at the hearing on defendant’s motion, the

trial judge, in his questioning, made sure that an order had been entered in

defendant’s criminal case, barring defendant from having any contact with plaintiff.

This concern that an order be in place for plaintiff’s protection suggests that the trial

court was likely to grant plaintiff’s motion if he had applied the law as set forth in

N.C. Gen. Stat. § 50B-3(b). Consequently, the trial court erred in denying plaintiff’s

motion based on it being a “Dueling 50B.”

                                        Conclusion

      Accordingly, we reverse the district court’s order dismissing plaintiff’s motion

for a DVPO. We remand to the district court for a hearing on plaintiff’s motion and

the entry of an appropriate order.

      REVERSED AND REMANDED.

      Judges BRYANT and TYSON concur.




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