{ "id": 9132649, "name": "LESLIE S. AUGUR, Plaintiff v. RICHARD G. AUGUR, Defendant", "name_abbreviation": "Augur v. Augur", "decision_date": "2002-04-16", "docket_number": "No. COA01-220", "first_page": "851", "last_page": "855", "citations": [ { "type": "official", "cite": "149 N.C. App. 851" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "148 L. Ed.2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "436-37" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "543 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "856", "parenthetical": "\"Constitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal.\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135893 ], "year": 2001, "pin_cites": [ { "page": "292", "parenthetical": "\"Constitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0281-01" ] }, { "cite": "318 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "352", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 13 (1967)" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526932 ], "year": 1984, "pin_cites": [ { "page": "707", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 13 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0701-01" ] }, { "cite": "451 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "865", "parenthetical": "citing N.C. Gen. Stat. \u00a7 7A-245 (1989)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556344 ], "year": 1994, "pin_cites": [ { "page": "368", "parenthetical": "citing N.C. Gen. Stat. \u00a7 7A-245 (1989)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0358-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-264", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1931, "opinion_index": 0 }, { "cite": "316 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "61" }, { "page": "62" } ], "opinion_index": 0 }, { "cite": "311 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682052 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "234" }, { "page": "234-35" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0230-01" ] }, { "cite": "347 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "29", "parenthetical": "citing Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 234, 316 S.E.2d 59, 61 (1984)" } ], "opinion_index": 0 }, { "cite": "317 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779714 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "583", "parenthetical": "citing Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 234, 316 S.E.2d 59, 61 (1984)" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0579-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-260", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1931, "opinion_index": 0 }, { "cite": "101 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1958, "pin_cites": [ { "page": "416" }, { "page": "520" }, { "page": "416" }, { "page": "522" }, { "page": "418" } ], "opinion_index": 1 }, { "cite": "247 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627639 ], "year": 1958, "pin_cites": [ { "page": "519-20" } ], "opinion_index": 1, "case_paths": [ "/nc/247/0516-01" ] }, { "cite": "391 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "211" } ], "opinion_index": 1 }, { "cite": "98 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525207 ], "year": 1990, "pin_cites": [ { "page": "512" } ], "opinion_index": 1, "case_paths": [ "/nc-app/98/0510-01" ] } ], "analysis": { "cardinality": 518, "char_count": 10703, "ocr_confidence": 0.77, "pagerank": { "raw": 4.4265276719536815e-08, "percentile": 0.2774231238964125 }, "sha256": "a1390d9804a10787b4c128a20fe4b634b334ed7e5ae65f48ef1c01b45b6c03da", "simhash": "1:4ea8546d12c7ced7", "word_count": 1701 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge GREENE dissents." ], "parties": [ "LESLIE S. AUGUR, Plaintiff v. RICHARD G. AUGUR, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nRichard G. Augur (\u201cdefendant\u201d) appeals from judgment dismissing plaintiff\u2019s complaint for a domestic violence protective order and denying defendant\u2019s counterclaim for a declaratory judgment that the Domestic Violence Act is unconstitutional. We affirm the trial court\u2019s judgment in part and reverse and remand in part.\nI. Facts\nDefendant and Leslie S. Augur (\u201cplaintiff\u201d) were married in 1981 and divorced in 1996. Three children were bom of the marriage.\nPlaintiff sought a domestic violence protective order (\u201cDVPO\u201d) on 26 October 1999 claiming that defendant abused her the day before at a soccer game and that defendant had been physically and sexually abusive to her in the past. The court entered plaintiffs ex parte DVPO on 28 October 1999. At the return hearing on 1 November 1999, defendant served plaintiff with an answer and counterclaim for a declaratory judgment. Defendant also moved for and received a continuance to prepare for the hearing. The DVPO remained in effect. The trial court eliminated the provision in the DVPO that prohibited defendant from possessing and purchasing a firearm with plaintiffs consent.\nOn 13 December 1999, the trial court held a hearing on the merits. The trial court found that plaintiff had failed to prove that defendant committed any acts of domestic violence and dismissed plaintiffs complaint. The trial court retained defendant\u2019s counterclaim under advisement. The North Carolina Attorney General was given due notice as required by the Declaratory Judgment Act. N.C. Gen. Stat. \u00a7 1-260 (1931).\nOn 7 August 2000, the trial court entered an order dismissing defendant\u2019s counterclaim finding that the issue was moot after the court dismissed plaintiff\u2019s complaint on 13 December 1999.\nDefendant filed a Rule 60 motion for relief from judgment or order on 29 August 2000. On 6 September 2000, defendant timely filed notice of appeal to our Court. On 25 October 2000, the trial court set aside the 7 August 2000 order to give the North Carolina Attorney General an opportunity to be heard. The trial court entered a new and final judgment on 11 December 2000. Defendant appealed on 8 January 2001.\nII. Issues\nDefendant assigns as error the trial court\u2019s (1) holding that the issues raised in defendant\u2019s counterclaim are moot, (2) denying defendant\u2019s counterclaim that the Domestic Violence Act is unconstitutional, and (3) refusing to consider defendant\u2019s declaratory judgment counterclaim even if it was moot.\nDefendant in his brief asks us to consider the constitutionality of the Domestic Violence Act as contained in Chapter 50B of the North Carolina General Statutes. The trial court did not address the merits of his request for a declaratory judgment. \u201cAlthough the North Carolina Declaratory Judgment Act does not state specifically that an actual controversy between the parties is a jurisdictional prerequisite to an action thereunder, our case law does impose such a requirement.\u201d Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 583, 347 S.E.2d 25, 29 (1986) (citing Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 234, 316 S.E.2d 59, 61 (1984)). In ruling on the requisite timing of the controversy, our Supreme Court held that in order for a court to have subject matter jurisdiction to render a declaratory judgment, there must be \u201can actual controversy . . . both at the time of the filing of the pleading and at the time of hearing.\" Sharpe, 317 N.C. at 585, 347 S.E.2d at 30 (citing Harrison, 311 N.C. at 234-35, 316 S.E.2d at 62) (emphasis supplied).\nAt the time defendant filed his answer and counterclaim for a declaratory judgment on 1 November 1999, and at the time of the return hearing on 13 December 1999, an actual controversy existed between plaintiff and defendant. Plaintiff and defendant were divorced in 1996 after lengthy and rancorous divorce proceedings. Sometime in 1997, plaintiff filed a domestic violence complaint and obtained an ex parte order against defendant. Plaintiff dismissed the case before a hearing was held.\nOn 26 October 1999, plaintiff filed for a DVPO. She appeared ex parte and pro se on 28 October 1999 and obtained the DVPO, which found that: (1) defendant had committed acts of domestic violence against plaintiff, and (2) the ex parte DVPO was necessary to protect plaintiff; the DVPO ordered that defendant: (1) shall not interfere with, assault, threaten, abuse, follow, or harass plaintiff, (2) shall stay away from plaintiffs residence and work, (3) shall have no contact with plaintiff, and (4) is prohibited from possessing and purchasing a firearm. Plaintiff and defendant appeared at the return hearing on 1 November 1999. Defendant served plaintiff at the return hearing with his answer, counterclaim for a declaratory judgment, request to lift the firearm restriction, and a request for a continuance, arguing that he could not mount a proper defense on 3 days notice. Plaintiff consented to the continuance and the lifting of the firearm restriction. At the return hearing on 13 December 1999, the trial court found that defendant did not commit an act of domestic violence against plaintiff, dismissed plaintiff\u2019s complaint, and took defendant\u2019s counterclaim under advisement.\nArticle 26 \u201cis declared to be remedial, its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered.\u201d N.C. Gen. Stat. \u00a7 1-264 (1931). \u201c[CJlaims for injunctive and declaratory relief regarding \u2018any statute\u2019 or \u2018any claim of constitutional right\u2019 are the particular province of the superior courts.\u201d Simeon v. Hardin, 339 N.C. 358, 368, 451 S.E.2d 858, 865 (1994) (citing N.C. Gen. Stat. \u00a7 7A-245 (1989)). We hold that an actual controversy existed between plaintiff and defendant at the time defendant filed his answer and counterclaim for a declaratory judgment on 1 November 1999, and at the time of the return hearing on 13 December 1999, in order to determine the constitutionality of the Domestic Violence Act. \u201c[A] counterclaim is in the nature of an independent proceeding and is not automatically determined by a ruling in the principal claim . . . .\u201d Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 13 (1967)). Defendant is entitled under the Declaratory Judgment Act to a determination of the constitutionality of the Domestic Violence Act.\nWe re-affirm this Court\u2019s general rule that we will not decide constitutional issues in the first instance when the trial court has not ruled upon them. State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001) (\u201cConstitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal.\u201d) (citing State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 436-37 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed.2d 797 (2001); accord Nobles, 350 N.C. at 495, 515 S.E.2d at 893)).\nWe affirm that portion of the trial court\u2019s judgment dismissing plaintiffs complaint. We reverse the trial court\u2019s order dismissing defendant\u2019s counterclaim and remand to the trial court to consider and rule upon defendant\u2019s requested declaratory judgment.\nAffirmed in part, reversed and remanded in part.\nJudge HUNTER concurs.\nJudge GREENE dissents.", "type": "majority", "author": "TYSON, Judge." }, { "text": "GREENE, Judge,\ndissenting.\nAs I believe the trial court did not have subject matter jurisdiction under the Declaratory Judgment Act, I dissent.\nA trial court only has subject matter jurisdiction under the Declaratory Judgment Act if \u201can actual controversy... existfs] at the time the pleadings [are] filed and at the time of [the] hearing.\u201d Hammock v. Bencini, 98 N.C. App. 510, 512, 391 S.E.2d 210, 211 (1990). In addition, although a trial court has the power to determine the validity of a statute, it can do so only \u201cwhen some specific provi-siones) thereof is challenged by a person who is directly and adversely affected\u201d by the statute. Greensboro v. Wall, 247 N.C. 516, 519-20, 101 S.E.2d 413, 416 (1958). Thus, the \u201cvalidity or invalidity of a statute, in whole or in part, is to be determined in respect of its adverse impact upon personal or property rights in a specific factual situation.\u201d Id. at 520, 101 S.E.2d at 416. Consequently, an individual can challenge a statute only when he can show that \u201cthe enforcement of all or any of its provisions will result in an invasion or denial of [his] specific personal or property rights under the Constitution.\u201d Id. at 522, 101 S.E.2d at 418.\nIn this case, an actual controversy existed between plaintiff and defendant at the time defendant filed his counterclaim seeking a declaratory judgment to determine the constitutionality of the Domestic Violence Act. After the trial court dismissed plaintiffs complaint on 13 December 1999, however, the issue raised in defendant\u2019s counterclaim was necessarily terminated, as he was no longer adversely affected by the Domestic Violence Act. Accordingly, the trial court was without subject matter jurisdiction to entertain a claim under the Declaratory Judgment Act concerning the constitutionality of the Domestic Violence Act. I, therefore, would affirm the trial court in denying defendant\u2019s counterclaim for a declaratory judgment.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Pisgah Legal Services, by Anne Bamberger, for plaintiff-appellee.", "Carter & Kropelnicki, P.A., by Steven Kropelnicki, Jr., for defendant-appellant.", "Attorney General Roy A. Cooper, III, by Assistant Attorney General Emery E. Milliken, for the State of North Carolina, amicus curiae." ], "corrections": "", "head_matter": "LESLIE S. AUGUR, Plaintiff v. RICHARD G. AUGUR, Defendant\nNo. COA01-220\n(Filed 16 April 2002)\nDeclaratory Judgment\u2014 subject matter jurisdiction \u2014 actual controversy\nThe trial court erred by dismissing defendant\u2019s counterclaim for a declaratory judgment that the Domestic Violence Act is unconstitutional as being moot after the trial court dismissed plaintiffs complaint seeking a domestic violence protective order, and the case is remanded to the trial court to consider and rule upon defendant\u2019s requested declaratory judgment because: (1) the trial court has subject matter jurisdiction to render a declaratory judgment when there is an actual controversy both at the time of the pleading and at the time of hearing; and (2) an actual controversy existed between plaintiff and defendant at the time defendant filed his answer and counterclaim for a declaratory judgment on 1 November 1999 and at the time of the return hearing on 13 December 1999.\nJudge Greene dissenting.\nAppeal by defendant from judgment entered 11 December 2000 by Judge Gary S. Cash in Buncombe County District Court. Heard in the Court of Appeals 8 January 2002.\nPisgah Legal Services, by Anne Bamberger, for plaintiff-appellee.\nCarter & Kropelnicki, P.A., by Steven Kropelnicki, Jr., for defendant-appellant.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Emery E. Milliken, for the State of North Carolina, amicus curiae." }, "file_name": "0851-01", "first_page_order": 885, "last_page_order": 889 }