NC appeals court vacates $96K DVPO attorneys’ fee award

SUMMARY

• NC Court of Appeals vacated $96,000 attorneys’ fee award in domestic violence protective order case.
• Trial court failed to find the claim lacked a justiciable issue.
• Fee award cited stayed Chapter 50/50A proceedings and misapplied statutes.
• Case remanded for reconsideration of fees and post-judgment motions.

The North Carolina Court of Appeals vacated a trial court’s $96,000 attorneys’ fee award after finding the court failed to make the required findings regarding the absence of a justiciable issue. The plaintiff originally filed a complaint under Chapter 50B seeking a domestic violence protective order (DVPO), which resulted in an ex parte order. Over a year later, the plaintiff moved to amend the complaint, prompting the defendant to seek attorneys’ fees and sanctions. The trial court initially denied that request but later dismissed the DVPO and awarded the defendant $21,105 in expenses and $75,258 in attorneys’ fees.

The appellate court concluded that the trial court erred in awarding attorneys’ fees for claims under Chapters 50 and 50A, as those proceedings were stayed by order of the Watauga County Department of Social Services. Although the trial court cited Chapter 50B and other provisions as grounds for the fee award, it failed to include findings addressing whether the underlying claim lacked a justiciable issue, as required under N.C. Gen. Stat. § 6-21.5. The record also did not clarify whether the trial court considered that statute at all.

The court acknowledged that the trial court retained jurisdiction to consider a fee award even after the expiration of the DVPO, but reiterated that a proper award under section 6-21.5 requires explicit findings that the losing party’s claims were wholly lacking in merit. The court also vacated the denial of the plaintiff’s Rule 59 and 60 motions and remanded the case for further proceedings consistent with its opinion.

The 13-page opinion is Cauley v. Cauley.

Dismissal reversed after trial court applies wrong standard in custody case

The North Carolina Court of Appeals reversed the dismissal of a custody complaint filed by the plaintiffs, grandparents seeking custody of their grandson, after finding that the trial court applied the incorrect standard in granting the defendant’s motion to dismiss. The defendant, the child’s father, filed a motion under Rule 12 without specifying a subsection. The plaintiffs argued on appeal that the trial court erred by treating the motion as a Rule 12(b)(6) motion without properly analyzing the sufficiency of the complaint.

At the hearing, the trial court allowed the defendant to testify, which the appellate court held was improper under Rule 12(b)(6), as that rule requires courts to assess only the allegations in the complaint, assuming them to be true. The plaintiffs’ complaint alleged that the father acted inconsistently with his constitutionally protected parental rights, failed to provide for the child, and lacked an adequate relationship and home for the child. Taking those allegations as true, the court held they were sufficient to establish standing under N.C. Gen. Stat. § 50-13.1 and to survive a motion to dismiss.

The appellate court emphasized that factual disputes should not be resolved at the dismissal stage and noted that the trial court made no findings of fact or conclusions of law justifying its dismissal beyond a brief acknowledgment of the father’s presence at the hearing. While such findings are not typically required for a Rule 12(b)(6) dismissal, the court reiterated that no evidentiary hearing should have occurred in this context. The matter was remanded for further proceedings at which the trial court may consider evidence and rule on the custody claim with proper findings. The 10 page opinion is White v. Boatwright, Lawyers Weekly No. 011-161-25.

Probation revocation vacated after trial court misapplied discretion standard

The North Carolina Court of Appeals vacated an order revoking the plaintiff’s probation and activating his sentence, finding the trial court misapprehended its discretionary authority when deciding the matter. The plaintiff appealed after the trial court revoked his probation for allegedly absconding supervision, arguing that the evidence was insufficient and that the court failed to properly exercise discretion in its decision.

The violation report alleged that beginning October 27, 2023, the plaintiff moved from West Virginia to Virginia without notifying North Carolina authorities or seeking a transfer of supervision. The plaintiff failed to report back to North Carolina as directed on December 18, 2023. The court held that, under controlling precedent, the relevant period for assessing absconding extended from October 27, 2023 to January 3, 2024—the date the violation report was filed. During that period, the plaintiff remained in Virginia under local supervision without informing North Carolina probation officers and failed to return as instructed.

The appellate court agreed there was competent evidence supporting the trial court’s finding that the plaintiff had absconded. However, it found error in the trial court’s legal conclusion that revocation was the only option. The record showed the court believed it had no discretion once it found the plaintiff had absconded, stating “it looks like the only alternative that I have… is to revoke his probation.” Because North Carolina law requires a discretionary decision, the appellate court vacated the revocation and remanded for the trial court to properly consider whether to revoke probation.

The 12-page opinion is State of North Carolina v. Luther Melvin Johnson II.

EXTERNAL LINKS

• N.C. General Statute § 6-21.5
• North Carolina Court of Appeals Opinions
• Domestic Violence Protective Orders in NC