M.E. v. T.J.

• Decision Date: 31 December 2020
• Docket Number: No. COA18-1045,COA18-1045
• Citation: 854 S.E.2d 74
• Parties: M.E., Plaintiff-Appellant, v. T.J., Defendant-Appellee.
• Court: North Carolina Court of Appeals

854 S.E.2d 74

M.E., Plaintiff-Appellant,

v.T.J., Defendant-Appellee.

No. COA18-1045

Court of Appeals of North Carolina.

Filed: December 31, 2020

I. Factual and Procedural Background

A. Introduction

M.E. ("Plaintiff") and T.J. ("Defendant") were in a dating relationship that did not last. Plaintiff decided the relationship had reached its end and, on 29 May 2018, Plaintiff undertook the difficult task of informing Defendant that their relationship was over. According to Plaintiff, Defendant did not accept Plaintiff's decision, and responded in a manner that ultimately led Plaintiff to visit the Wake County Clerk of Court's office on the morning of 31 May 2018, seeking the protections of a Domestic Violence Protective Order ("DVPO"), as well as an ex parte temporary "Domestic Violence Order of Protection" ("ex parte DVPO"), pursuant to Chapter 50B of the North Carolina General Statutes: "An Act to Provide Remedies for Domestic Violence" (the "Act" or "Chapter 50B"). 1979 North Carolina Laws Ch. 561, §§ 1–8. At the time of the enactment of Chapter 50B, same-sex marriage was not legal, and the General Assembly specifically limited the protections of Chapter 50B to unmarried couples comprising "persons of the opposite sex." Id.

Although the trial court determined Plaintiff's "allegations [we]re significant," and "[P]laintiff ha[d] suffered unlawful conduct by [D]efendant," the trial court denied Plaintiff's request for an ex parte DVPO. The order denying Plaintiff's request for an ex parte DVPO states that the "only reason [P]laintiff [is] not receiving [an ex parte ] 50B DVPO today" is because Plaintiff and Defendant had been in a "same sex relationship and [had] not live[d] together[.]" Plaintiff received the same result at a 7 June 2018 hearing on her request for a permanent DVPO. The trial court denied Plaintiff the protections of a Chapter 50B DVPO in a 7 June 2018 order that stated: "A civil no-contact (50C) order was granted contemporaneously on the same allegations and had the parties been of opposite genders, those facts would have supported the entry of a [DVPO] (50B)." As the trial court note, it contemporaneously entered a "No-Contact Order for Stalking" granting Plaintiff the lesser protections afforded by Chapter 50C.

On appeal, Plaintiff argues that the denial of her requests for ex parte and permanent DVPOs under Chapter 50B violated her Fourteenth Amendment and state constitutional rights to due process and equal protection of the laws. We set forth additional relevant facts and address Plaintiff's arguments below.

B. Additional Facts

Plaintiff went to the Clerk's office on 31 May 2018 and explained her situation to the staff members, who gave Plaintiff the appropriate forms to file a Chapter 50B "Complaint and Motion for Domestic Violence Protective Order" ("AOC-CV-303"), which also includes a section to request a temporary "Ex Parte Domestic Violence Order of Protection." See N.C.G.S. § 50B-2(d) (2017) ("The clerk of superior court of each county shall provide to pro se complainants all forms that are necessary or appropriate to enable them to proceed pro se pursuant to this section. The clerk shall, whenever feasible, provide a private area for complainants to fill out forms and make inquiries.").

Plaintiff filled out AOC-CV-303 and additional forms she had been given, alleging Defendant had committed physical and otherwise threatening actions against her, and stating her concern that Defendant had "access to [Defendant's] father's gun collection." Plaintiff requested "emergency relief" by way of "an Ex Parte Order," based upon her belief that "there [wa]s a danger of [further] acts of domestic violence against [her]" before a formal DVPO hearing could be set. Plaintiff stated: "I want [ ] [D]efendant ordered not to assault, threaten, abuse, follow, harass or interfere with me[;]" "I want [ ] [D]efendant to be ordered to have no contact with me." Plaintiff also asked the trial court to order Defendant "not to come on or about" Plaintiff's residence or her place of work; to take anger management classes; and "to prohibit [ ] [D]efendant from possessing or purchasing a firearm."

Form AOC-CV-303 is based on the requirements for a DVPO as set forth in Chapter 50B, including the definition of "domestic violence" found in N.C.G.S. § 50B-1. The definition of "domestic violence" in N.C.G.S. § 50B-1 includes acts by a defendant "[a]ttempting to cause bodily injury, [ ] intentionally causing bodily injury[, or] [p]lacing the aggrieved party ... in fear of imminent serious bodily injury or continued harassment ... that rises to such a level as to inflict substantial emotional distress" when the defendant's acts were against a "person," the plaintiff, with whom the defendant was in a "personal relationship." N.C.G.S. §§ 50B-1(a)(1)-(2). Relevant to Plaintiff's appeal, the definition of "personal relationship" required that Plaintiff and Defendant were either "in a dating relationship or had been in a dating relationship." N.C.G.S. §§ 50B-1 (b)(6). Therefore, pursuant to the definitions in N.C.G.S. § 50B-1, violence against a person with whom the perpetrator either is, or has been, in a "dating relationship" is not "domestic violence," no matter how severe the abuse, unless the perpetrator of the violence and the victim of the violence "[a]re persons of the opposite sex[.]" N.C.G.S. § 50B-1(b)(6). The only box on AOC-CV-303 relevant to the "dating" nature of Plaintiff's relationship with Defendant was the one that stated: "The defendant and I ... are persons of the opposite sex who are in or have been in a dating relationship." Having no other option, Plaintiff checked that box and filed her complaint.

Plaintiff first spoke with the trial judge concerning her "request for Ex Parte Order" during the morning family court session on 31 May 2018, but was informed that because both she and Defendant were women, and only in a "dating" type relationship, N.C.G.S. § 50B-1(b)(6) did not allow the trial court to grant her an ex parte DVPO or any other protections afforded by Chapter 50B. Plaintiff was informed that she could seek a civil ex parte temporary no-contact order and a permanent civil no-contact order, pursuant to Chapter 50C. See N.C.G.S. § 50C-2 (2017). Chapter 50C expressly states that its protections are for "person[s] against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b). " N.C.G.S. § 50C-1(8) (2017) (emphasis added).

Plaintiff returned to the Clerk's office, obtained the forms for Chapter 50C protections, including Form AOC-CV-520, "Complaint for No-Contact Order for Stalking," filled them out, and filed them. Plaintiff's motions for both civil ex parte and permanent no-contact orders were filed under a new case file number. Plaintiff decided to argue for both an ex parte DVPO and a permanent DVPO under Chapter 50B and, should these Chapter 50B requests be denied, for Chapter 50C ex parte and permanent civil "Temporary No-Contact Order[s] for Stalking."

Plaintiff's actions were heard at the afternoon session that same day, 31 May 2018, and the trial court entered its " ‘Amended’ Ex Parte Domestic Violence Order of Protection," which denied Plaintiff's request for an ex parte DVPO, but set a hearing date of 7 June 2018 for a hearing on Plaintiff's request for a permanent DVPO.¹ In the "Relationship to Petitioner" section of this order, the box checked by the trial court to define Plaintiff's relationship to Defendant was "of opposite sex, currently or formerly in dating relationship[.]" The trial court also checked Box 8, which states that "[P]laintiff has failed to prove grounds for ex parte relief[;]" Box 14, stating "the request for Ex Parte Order is denied[;]" and Box 15, "Other: (specify) [,]" writing: "HEARING ONLY – set for hearing on [7 June 2018] ...; allegations are significant but parties are in same sex relationship and have never lived together, therefore do not have relationship required in [ N.C.G.S. § 50B-1(b) ]."

The trial court granted Plaintiff's ex parte request pursuant to Chapter 50C by entering a "Temporary No-Contact Order for Stalking or Nonconsensual Sexual Conduct" (the "ex parte 50C Order"), also on 31 May 2018. See N.C.G.S. § 50C-6(a) (2017). In the ex parte 50C Order, the trial court found as fact that "[P]laintiff has suffered unlawful conduct by [ ] [D]efendant in that:" "On 5/29/18, [D]efendant got physically aggressive and was screaming in [Plaintiff's] face; [D]efendant then left after LEO [law enforcement officers] were called; after LEO left," Defendant "attempted to re-enter [Plaintiff's] house; LEO returned to remove [Defendant] from [Plaintiff's] house; since that date, [D]efendant has repeated[ly] called [Plaintiff], texted [P]laintiff from multiple numbers, and contacted [P]laintiff's friends and family[.]" The trial court found that Defendant "continues to harass [P]laintiff[,]" and that "[D]efendant committed acts of unlawful conduct against [ ] [P]laintiff." The trial court concluded that the "only reason [P]laintiff [is] not receiving [a] 50B DVPO today " is because Plaintiff and Defendant had been "in [a] same sex relationship and do not live together [,]" and that N.C.G.S. § 50B-1(b), as plainly written, requires the dating relationship involved to have consisted of people of the " ‘opposite sex[.]’ " (Emphasis added).

The "HEARING ON [Plaintiff's] 50B and 50C MOTIONS" was conducted on 7 June 2018. At this hearing, the trial court considered Plaintiff's "Complaint for No-Contact Order for Stalking or Nonconsensual Sexual Conduct" under N.C.G.S. §§ 50C-2 and 50C-5, and her "Complaint and Motion for Domestic Violence Protective Order" under N.C.G.S. §§ 50B-2 and 50B-3. Defendant appeared pro se , but Plaintiff was represented at this hearing, and her attorney informed the trial court:

[Plaintiff] came in on May 31st and filed a complaint for that [DVPO]. She –

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