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Domestic Relations – DVPO – Motion to Dismiss – Delay & Fear

Where plaintiff alleged that she was a North Carolina resident, that the parties had a personal relationship, and that defendant choked her, the trial court should not have granted defendant’s motion to dismiss under N.C. R. Civ. P. 12(b)(6). The complaint did not need to allege fear, why plaintiff “delayed” filing her complaint for five days (which included a weekend), or the facts explaining why she believed it was defendant who had keyed her car.

We reverse the trial court’s dismissal of plaintiff’s complaint. Remanded.

Accepting the complaint’s allegations as true, the 8 October incident where defendant “choked” plaintiff “after an argument” aligns with the plain language of G.S. § 50B-1(a)(1) because it involved either “attempting to cause bodily injury, or intentionally causing bodily injury.”

Plaintiff’s complaint included other allegations such as defendant threatening plaintiff with a gun in the past and carving an insulting epithet on her car causing plaintiff to fear for her life. Those allegations do tend to support plaintiff’s request for a protective order and may be relevant to a trial court’s ultimate determination as to the terms of the DVPO, but plaintiff only needed to allege one act of domestic violence, and the choking incident alone meets the pleading requirement.

Instead of taking the allegations of the complaint as true, as required for purposes of a motion to dismiss, the trial court made comments indicating that it both imposed a legal requirement not found in Chapter 50—a specific timing requirement for plaintiff’s fear—and made a credibility assessment of the allegations without hearing any testimony from plaintiff.

The trial court erred in its reasoning about the delay in filing in several ways. First, fear is not an element plaintiff was required to plead. While fear is part of the definition of some of the possible acts of domestic violence, it is not part of the definition in § 50B-1(a)(1). The alleged choking incident falls under § 50B-1(a)(1).

Second, even if an allegation of fear were required, plaintiff wrote she was “afraid for [her] life” and was “starting to get scared of what he might do to” her. Plaintiff also checked the box on the form indicating she “believe[d] there [was] danger of serious and immediate injury to me or my child(ren).”

Further, the trial court’s focus on the timing of her fear was misguided because it is undisputed that plaintiff pled she was afraid at the time of her complaint, which is the document reviewed by a Rule 12(b)(6) motion.

Finally, as to any delay, we note 8 October 2021 was a Friday, and plaintiff filed her complaint the following Wednesday morning, 13 October 2021. The weekend in between the choking incident and filing of the complaint might explain part of the delay.

It is possible an extended unexplained delay—which would still not include the five-day delay here—between an alleged act and filing of a complaint may present an issue if the only allegation of domestic violence is under § 50B-1(a)(2), “Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment.” But here, the complaint falls under § 50B-1(1)(1); in any event, five days, including a weekend, can barely be characterized as a delay.

Finally, Chapter 50B does not require a plaintiff to report incidents to police prior to filing a complaint, nor does it require plaintiff to state in the complaint all the facts and circumstances which led her to believe that defendant was the person who keyed her car.

Reversed and remanded.

Rollings v. Shelton (Lawyers Weekly No. 011-213-22, 13 pp.) (Donna Stroud, C.J.) Carteret County District Court (Andrew Kent Wigmore, J.) Cynthia Sanders, Sandy Lee, TeAndra Miller, James Battle Morgan and Celia Pistolis for plaintiff; no brief filed for defendant. 2022-NCCOA-791

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