Domestic Violence Protective Order, COA18-465, Dec. 18, 2018, Martin v. Martin, Wake County

It is a violation of defendant’s due process rights to allow plaintiff to testify about alleged acts of domestic violence that were not pleaded in the complaint.

Plaintiff-Wife filed a complaint for a domestic violence protective order against Defendant-Husband. In her complaint, Wife alleged that acts of domestic violence had occurred on several different days. At the hearing, Wife testified about alleged acts of domestic violence that had not been pleaded in her complaint. Husband objected to the admission of evidence regarding incidents that had not been alleged in the complaint, but the trial court overruled the objection and allowed the evidence to be presented.

Husband appealed, arguing that his due process rights were violated when the trial court allowed Wife to present evidence of alleged acts that she had not included in her complaint. Wife responded by arguing that Chapter 50B does not require allegations of specific acts of domestic violence, that Rule 9 of the Rules of Civil Procedure does not include averments of domestic violence as a matter that has to be pleaded with specificity, and that Rule 8 of the Rules of Civil Procedure requires only a short and plain statement of the claim.

The Court of Appeals noted that our appellate courts have not considered the issue of whether a plaintiff in a domestic violence case may present evidence at trial of alleged acts of domestic violence that had not been pleaded in the complaint. After reviewing the approach taken by other jurisdictions with similar domestic violence statutes, the Court held that “admission of testimony of domestic violence not otherwise pleaded in a complaint and motion for a domestic violence protective order violates a defendant’s right to due process” because when allegations are not in the complaint, a defendant is not on notice of, cannot anticipate, and cannot prepare a defense against those allegations.

January 4, 2019/by FamilyLaw