DVPO – Pleading Requirements

By Becky Watts

Martin v. Martin, July 16, 2019, COA 18-465-2 (DVPO, pleading requirements)

At the hearing on Plaintiff’s complaint for a domestic violence protective order, Plaintiff testified about specific incidents that had not been mentioned in her complaint.  Defendant objected to the testimony, but the trial court allowed it and ultimately entered a DVPO which included findings of fact regarding the incidents that had not been mentioned in the complaint.  Defendant appealed.

The Court of Appeals issued an opinion on December 18, 2018.  In that opinion, the Court of Appeals reversed the trial court’s order because the trial court violated Defendant’s due process rights by allowing Plaintiff to present evidence of acts that were not alleged in the complaint. Plaintiff filed a Petition for Rehearing, which was granted by the Court of Appeals.

As a result of the Petition for Rehearing, the Court of Appeals issued a new opinion on July 16, 2019, reversing the trial court’s order.  Although the Court of Appeals still ultimately reversed the trial court’s decision, they did so without addressing constitutional questions and instead decided the case by application of the Rules of Civil Procedure. Rule 8 requires that the complaint give the Defendant sufficient notice of the nature and basis of the claim to enable Defendant to prepare for trial.  So, the trial court may allow evidence of an unpleaded allegation so long as the allegations that are in the complaint gave Defendant sufficient notice of the nature and basis of the unpleaded allegations.  For example, in the previously decided case of Jarrett v. Jarrett, 249 N.C. App. 269, 790 S.E.2d 883 (2016), allegations in the complaint that Defendant drove erratically on one occasion was sufficient to put Defendant on notice that his reckless driving was at issue and so it was not improper for the trial court to allow testimony about other incidents of reckless driving.  Here, however, Plaintiff did not make any allegations concerning reckless driving in her complaint, so it was error for the trial court to admit evidence over Defendant’s objection of reckless driving and to then find reckless driving as a basis for entry of the DVPO.