               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-1191

                                  Filed: 19 June 2018

New Hanover County, No. 17-CVD-2018

VERONICA RUSSELL, Plaintiff,

              v.

DONALD WOFFORD, Defendant.



      Appeal by defendant from order entered 2 June 2017 by Judge Jeffrey E.

Noecker in District Court, New Hanover County. Heard in the Court of Appeals 7

March 2018.


      No brief filed on behalf of plaintiff.

      Sherman Law, P.C., by Scott G. Sherman, for defendant-appellant.


      STROUD, Judge



      Defendant appeals no-contact order under North Carolina General Statute

Chapter 50C which ordered him to surrender his firearms. Because the trial court

had no authority under North Carolina General Statute Chapter 50C to order

defendant not to possess or purchase any firearms, to surrender his firearms, or to

revoke his concealed carry permit, we reverse and remand the portion of the order

with these provisions. We affirm the remaining portions of the order.

                                      I.       Background
                                        RUSSELL V. WOFFORD

                                          Opinion of the Court



        On or about 23 May 2017, plaintiff filed COMPLAINT FOR NO-CONTACT

ORDER FOR STALKING OR NONCONSENSUAL SEXUAL CONDUCT on form

AOC-CV-520, Rev. 8/14 against defendant under North Carolina General Statute §

50C-2. Plaintiff alleged defendant grabbed her breasts without her consent, came to

her house “making false accusations” and refused to leave, and had his erectile

dysfunction medication delivered to her home. Plaintiff marked boxes on the form

requesting an ex parte temporary order and a permanent no-contact order.1 Plaintiff

also marked all of the boxes 4 through 9 on the form which request that defendant be

ordered not to visit her or interfere with her in various ways and to stay away from

her children’s schools. Plaintiff made no request in the blank areas under box 10

entitled “Other: (specify)[.]” Plaintiff also made no allegations regarding firearms or

any threat of physical violence.

        The trial court entered an ex parte TEMPORARY NO-CONTACT ORDER FOR

STALKING OR NONCONSENSUAL SEXUAL CONDUCT, form AOC-CV-523, rev.

10/15, granting the relief as plaintiff requested and setting a hearing on the

permanent no-contact order on 2 June 2017. On 2 June 2017, the trial court held the

hearing on the permanent no-contact order; plaintiff and defendant were both present

and defendant was represented by counsel. Plaintiff did not mention guns or make


        1 Under North Carolina General Statute § 50C-8(b), “[a] permanent civil no-contact order shall
be effective for a fixed period of time not to exceed one year[,]” but it can be extended under § 50C-8(c).
N.C. Gen. Stat. § 50C-8 (2017).


                                                   -2-
                                   RUSSELL V. WOFFORD

                                        Opinion of the Court



any request related to guns during her testimony. Defendant mentioned during his

testimony he was a former FBI agent, retired police officer, and a veteran; he owned

a firearm, and was “authorized to be armed in fifty states twenty-four seven.” The

trial   court     entered    a   NO-CONTACT             ORDER     FOR    STALKING      OR

NONCONSENSUAL SEXUAL CONDUCT on form AOC-CV-524, Rev. 4/17 under

North Carolina General Statute § 50C-7.                 The order included findings of fact

regarding nonconsensual sexual conduct by defendant and concluded that defendant

had “committed acts of unlawful conduct against the plaintiff.”

        In the decree portion of the order, the trial court checked boxes 1 through 6,

ordering defendant not to commit various acts such as visiting or stalking the

plaintiff. The trial court also checked box 7, entitled “Other: (specify)” and made a

handwritten notation ordering:

                Defendant shall surrender to the NH Sheriff’s office any
                and all firearms that he owns, to be held by NH Sheriff for
                the duration of this order. Defendant’s concealed carry
                permit is revoked for the period of this order. Defendant is
                prevented from purchasing possessing any firearm for the
                term of this order.

        Defendant filed a timely notice of appeal from the order.

                                  II.       Surrender of Firearms

        Defendant first contends that the trial court exceeded its authority as granted

in North Carolina General Statute § 50C-7 by ordering him to surrender his firearms,

not to purchase or possess any firearms, and revoking his concealed carry permit.


                                               -3-
                                RUSSELL V. WOFFORD

                                  Opinion of the Court



The order was entered under North Carolina General Statute, Chapter 50C, and

presents a question of statutory interpretation.            “Questions of statutory

interpretation are questions of law, which are reviewed de novo by an appellate

court.” State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517 (2009) (citations

and quotation marks omitted).

      North Carolina General Statute § 50C-7 (2017) provides,

                    Upon a finding that the victim has suffered an act of
             unlawful conduct committed by the respondent, a
             permanent civil no-contact order may issue if the court
             additionally finds that process was properly served on the
             respondent, the respondent has answered the complaint
             and notice of hearing was given, or the respondent is in
             default. No permanent civil no-contact order shall be
             issued without notice to the respondent. Hearings held to
             consider permanent relief pursuant to this section shall not
             be held via video conference.

Nothing in North Carolina General Statute Chapter 50C addresses surrender of

firearms. North Carolina General Statute § 50C-5 sets forth a list of remedies for a

civil no-contact order:

             (b)    The court may grant one or more of the following
             forms of relief in its orders under this Chapter:

                    (1)     Order the respondent not to visit, assault,
             molest, or otherwise interfere with the victim.
                    (2)     Order the respondent to cease stalking the
             victim, including at the victim’s workplace.
                    (3)    Order the respondent to cease harassment of
             the victim.
                    (4)    Order the respondent not to abuse or injure
             the victim.


                                         -4-
                                       RUSSELL V. WOFFORD

                                         Opinion of the Court



                       (5)    Order the respondent not to contact the victim
                by telephone, written communication, or electronic means.
                       (6)    Order the respondent to refrain from entering
                or remaining present at the victim’s residence, school, place
                of employment, or other specified places at times when the
                victim is present.
                       (7)   Order other relief deemed necessary and
                appropriate by the court, including assessing attorneys’
                fees to either party.

N.C. Gen. Stat. § 50C-5 (2017). North Carolina General Statute § 50C-11 further

provides that “[t]he remedies provided by this Chapter are not exclusive but are

additional to other remedies provided under law.” N.C. Gen. Stat. § 50C-11 (2017).

        This case presents the question of what “other relief” or “additional” remedies

the trial court has statutory authority to order, and in particular, whether the court

may order surrender of firearms. N.C. Gen. Stat. §§ 50C-5; -11.                    Because Chapter

50B is a similar statutory scheme which addresses orders issued to protect against

acts of domestic violence (“DVPO”) arising in a “personal relationship” it is useful to

compare the language of the two Chapters and consider the types of relief allowed

under Chapter 50B to determine whether surrender of firearms is also a proper

remedy under Chapter 50C.2 Compare generally N.C. Gen. Stat. Chap. 50B, 50C


2 Chapter 50B addresses parties in a “personal relationship” which is defined as “(1) [a]re current or
former spouses; (2) Are persons of opposite sex who live together or have lived together; (3) Are related
as parents and children, including others acting in loco parentis to a minor child, or as grandparents
and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of
protection against a child or grandchild under the age of 16; (4) Have a child in common; (5) Are current
or former household members; (6) Are persons of the opposite sex who are in a dating relationship or
have been in a dating relationship. For purposes of this subdivision, a dating relationship is one
wherein the parties are romantically involved over time and on a continuous basis during the course



                                                  -5-
                                     RUSSELL V. WOFFORD

                                       Opinion of the Court



(2017). Chapter 50C addresses those situations not covered by Chapter 50B, where

the parties are not in a “personal relationship.” See Tyll v. Willets, 229 N.C. App.

155, 159, 748 S.E.2d 329, 331 (2013) (“North Carolina General Statute § 50C–1

incorporates the definitions of ‘personal relationship’ from North Carolina General

Statute Chapter 50B and excludes them from the category of relationships upon

which a Chapter 50C no-contact order can be premised. See N.C. Gen. Stat. § 50C–

1(8). In doing so, Chapter 50C provides a method of obtaining a no-contact order

against another person when the relationship is not romantic, sexual, or familial. See

N.C. Gen. Stat. §§ 50B–1(b), 50C–1(8).”).

       North Carolina General Statute § 50B-3(a) sets forth similar types of relief as

§ 50C-5. Compare N.C. Gen. Stat. §§ 50B-3; 50C-5 (2017). North Carolina General

Statutes 50B-3 and 50C-5 are not identical, since Chapter 50B includes provisions

needed to address possession of a residence, child custody and support, and property

issues common between those in a “personal relationship[.]” Compare N.C. Gen. Stat.

§§ 50B-3; 50C-5; see generally N.C. Gen. Stat. 50B-1. North Carolina § 50B-3(a)(13)

is a “catch-all” provision which allows the trial court to “[i]nclude any additional

prohibitions or requirements the court deems necessary to protect any party or any

minor child.” N.C. Gen. Stat. § 50B-3(a)(13) (emphasis added). Our Supreme Court

has interpreted the “catch-all” provision of § 50B-3(a)(13) and held that the word


of the relationship. A casual acquaintance or ordinary fraternization between persons in a business
or social context is not a dating relationship.” N.C. Gen. Stat. 50B-1(b) (2017).

                                               -6-
                                RUSSELL V. WOFFORD

                                  Opinion of the Court



“any” does not give the trial court unlimited power to order additional relief. See

State v. Elder, 368 N.C. 70, 773 S.E.2d 51 (2015).

      Notably, in comparing Chapters 50B and 50C, Chapter 50C does not mention

firearms, while North Carolina General Statute § 50B-3.1, entitled, “Surrender and

disposal of firearms; violations; exemptions[,]” sets forth detailed requirements for

any DVPO which orders surrender of firearms. See N.C. Gen. Stat. § 50B-3.1 (2017).

The trial court must make specific findings of fact in the DVPO to justify ordering the

surrender of firearms. See id. The statute also sets forth the procedure for returning

weapons to their owner and disposal of firearms not returned. See id. Here, neither

the complaint nor the ex parte no-contact order mentioned firearms – nor does

Chapter 50C -- so defendant had no notice of the possibility of an order requiring

surrender. Since the trial court imposed this provision after the hearing, sua sponte,

neither party had an opportunity to address it at the hearing or to object.

      In State v. Elder, the trial court granted a DVPO which, in addition to the relief

enumerated by § 50B-3 provided

             that any Law Enforcement officer serving this Order shall
             search the Defendant’s person, vehicle and residence and
             seize any and all weapons found. Notably, the court made
             no findings or conclusions that probable cause existed to
             search defendant’s property or that defendant even owned
             or possessed a weapon.

Id. at 71, 773 S.E.2d at 52 (quotation marks and brackets omitted). Upon conducting

the search directed by the DVPO, law enforcement officers discovered a marijuana


                                         -7-
                               RUSSELL V. WOFFORD

                                 Opinion of the Court



growing operation in the defendant’s home, leading to criminal charges. See id. In

his criminal case, our Supreme Court held that the trial court should have allowed

the defendant’s motion to suppress the evidence obtained from their search of his

home under the DVPO because the district court did not have authority to order a

search of a home without probable cause or a search warrant:

                   Our General Assembly enacted the Domestic
            Violence Act, N.C.G.S. Chapter 50B, to respond to the
            serious and invisible problem of domestic violence.
            Subsection 50B–3(a) states that if a court finds a defendant
            committed an act of domestic violence, the court must
            grant a DVPO restraining the defendant from further acts
            of domestic violence. The statute then lists thirteen types
            of relief that the court may order in a DVPO. The first
            twelve are specific prohibitions or requirements imposed
            on a party to the DVPO. The last type of relief is a catch-
            all provision that authorizes the court to order any
            additional prohibitions or requirements the court deems
            necessary to protect any party or any minor child.
                   We disagree with the State’s contention that the
            General Assembly intended a broad interpretation of the
            word “any.” The plain language of section 50B–3 does not
            authorize courts to order law enforcement to search a
            defendant’s person, vehicle, or residence under a DVPO.
            The word “any” in the catch-all provision modifies
            “additional prohibitions or requirements,” N.C.G.S. § 50B–
            3(a)(13), and this provision follows a list of twelve other
            prohibitions or requirements that the judge may impose on
            a party to a DVPO. For example, the court may prohibit a
            party from harassing the other party or from purchasing a
            firearm, and it may require a party to provide housing for
            his or her spouse and children, to pay spousal and child
            support, or to complete an abuser treatment program. It
            follows, then, that the catch-all provision limits the court
            to ordering a party to act or refrain from acting; the
            provision does not authorize the court to order law


                                        -8-
                                 RUSSELL V. WOFFORD

                                   Opinion of the Court



             enforcement, which is not a party to the civil DVPO, to
             proactively search defendant’s person, vehicle, or
             residence.
                    Not only is this interpretation demanded by the
             plain language of the statute, but it is consistent with the
             protections provided by the Federal and State
             Constitutions.    The Federal and State Constitutions
             protect fundamental rights by limiting the power of the
             government. Yet under the State’s broad interpretation
             here, district courts would have seemingly unfettered
             discretion to order a broad range of remedies in a DVPO so
             long as the judge believes they are necessary for the
             protection of any party or child. This interpretation
             contravenes the Fourth Amendment to the United States
             Constitution and Article I, Section 20 of the North Carolina
             Constitution.

Id. at 72–73, 773 S.E.2d at 53 (citations and quotation marks omitted).

      Although the particular issue in Elder is different, the same sort of analysis

applies here. See generally Elder, 368 N.C. 70, 773 S.E.2d 51. Furthermore, the list

of relief in North Carolina General Statute Chapter 50C is even more limited than

the list of remedies in Chapter 50B; compare N.C. Gen. Stat. Chap. 50B; 50C, all of

the remedies in § 50C-5 are “ordering a party to act or refrain from acting” in

relationship to, in this case, plaintiff. Elder, 368 N.C. at 72–73, 773 S.E.2d at 53; see

N.C. Gen. Stat. § 50C-5. If we were to interpret Chapter 50C to allow the district

court to order, sua sponte, surrender of firearms, revocation of a concealed carry

permit, and forbidding the purchase or possession of firearms, even with no evidence

of threatened use of a firearm or any threat of physical harm, this interpretation

would allow far broader relief than North Carolina General Statute Chapter 50B


                                          -9-
                                RUSSELL V. WOFFORD

                                  Opinion of the Court



does, with no notice to a defendant that he may be required to surrender or not

possess firearms. See generally Elder, 368 N.C. at 72–73, 773 S.E.2d at 53; N.C. Gen.

Stat. Chap. 50B. Even if this order had been entered under Chapter 50B, the order

requiring surrender of firearms would have been in error because there was no

evidence to support the required findings of fact under North Carolina General

Statute § 50B-3.1. See N.C. Gen. Stat. § 50B-3.1.        District Courts do not have

“unfettered discretion to order a broad range of remedies” in a Chapter 50B protective

order “so long as the judge believes they are necessary for the protection of any party

or child” nor do they have “unfettered discretion” under Chapter 50C to order any

relief the judge believes necessary to protect a victim. Elder, 368 N.C. at 73, 773

S.E.2d at 52. We understand that the motivation of the trial court was simply to

protect plaintiff, but the district court does not have authority under Chapter 50C

sua sponte to order defendant to surrender his firearms, revoke his concealed carry

permit, or to order him not to purchase or possess any firearms during the period of

the no-contact order. We reverse these provisions of the no-contact order.

                                  III.   No-Contact Order

      Defendant also argues that the trial court should not have entered a no-contact

order because he did not commit the acts plaintiff alleged and testified about at the

hearing. But defendant’s brief acknowledges there was sufficient evidence to support

the trial court’s findings of fact: “Although the Defendant disagrees with the Court’s



                                         - 10 -
                               RUSSELL V. WOFFORD

                                 Opinion of the Court



actual finding, the Defendant concedes that the Court had the right and opportunity

to view the evidence in the way the Court did and that the evidence, so construed,

may uphold an Order for Non-Consensual Sexual Conduct.” Defendant does not

actually challenge either the findings of fact or the conclusions of law in the no-

contact order, so we affirm the order except as to the provisions regarding firearms

discussed above.

                                 IV.    Conclusion

      The district court exceeded its authority under North Carolina General Statute

Chapter 50C by ordering defendant to surrender his firearms, revoking his concealed

carry permit, and ordering him not to purchase or possess firearms during the period

of the no-contact order. We reverse the provisions of the order addressing firearms.

We remand to the trial court to determine if any additional order is needed to direct

the New Hanover Sheriff’s Office to return defendant’s firearms, and if so, to enter

such an order. We affirm the remainder of the order.

      AFFIRMED in part; REVERSED and REMANDED in part.

      Judges DAVIS and ARROWOOD concur.




                                        - 11 -
