{ "id": 4364381, "name": "MARYELLEN KENTON, Plaintiff v. JAMES P. KENTON, Defendant", "name_abbreviation": "Kenton v. Kenton", "decision_date": "2012-02-07", "docket_number": "No. COA11-531", "first_page": "603", "last_page": "606", "citations": [ { "type": "official", "cite": "218 N.C. App. 603" } ], "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": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "513 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239625 ], "year": 1999, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0646-01" ] }, { "cite": "588 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "507-08" }, { "page": "507-08" }, { "parenthetical": "\"The court's authority to enter a protective order or approve a consent agreement is dependent upon finding that an act of domestic violence occurred and that the order furthers the purpose of ceasing acts of domestic violence.\" (emphasis added" }, { "page": "507-08" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958413 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "446-47" }, { "page": "446-47" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0444-01" ] } ], "analysis": { "cardinality": 399, "char_count": 8242, "ocr_confidence": 0.759, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14889593949299748 }, "sha256": "a9753582e62e9c7c67cc4b4361633e865f0cb3e3608e6afe596fd1750dcf7e3f", "simhash": "1:a4fa9f8242628dc0", "word_count": 1364 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and HUNTER, Jr., Robert N., concur." ], "parties": [ "MARYELLEN KENTON, Plaintiff v. JAMES P. KENTON, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nJames P. Kenton (\u201cdefendant\u201d) appeals from the trial court\u2019s 14 January 2011 order renewing a consent Domestic Violence Protection Order that was issued 8 January 2010 in New Hanover County District Court by Judge Sandra Ray Criner (the \u201cConsent DVPO\u201d). Defendant argues the trial court erred by (1) denying his motion to dismiss plaintiff Maryellen Kenton\u2019s motion to renew the Consent DVPO; and (2) entering an order renewing the Consent DVPO for a term of one year. After careful review, we reverse the order denying defendant\u2019s motion to dismiss and vacate the order renewing the Consent DVPO.\nBackground\nThe evidence tended to establish the following facts: defendant and plaintiff were previously married and have two minor children. Plaintiff filed a complaint and motion for a DVPO against defendant on 11 December 2009. Plaintiff claimed that on that date defendant attempted to cause or intentionally caused her bodily injury and that defendant posed a danger of \u201cserious and immediate injury\u201d to her and her children.\nOn 8 January 2010, plaintiff and defendant entered into a consent DVPO, by which the trial court ordered that defendant \u201cshall not commit any further acts of abuse or make any threats of abuse\u201d; the word \u201cfurther\u201d was struck through with a line. In addition to identifying the parties\u2019 respective counsel, the trial court made one finding of fact in the order:\nThe parties agree to entry of this order without express findings of fact regarding the behavior of either party. The parties have two minor children and their attorneys shall make arrangements for Defendant\u2019s custodial periods in accordance with the Separation and Property Settlement Agreement or established by any court order in the pending custody action.\n(Emphasis added.) The trial court also noted that the \u201c[p]arties waive conclusion[s] of law.\u201d Thus, the Consent DVPO contained no finding of fact or conclusion of law that defendant committed an act of domestic violence as defined in N.C. Gen. Stat. \u00a7 50B-l(a) (2011). The Consent DVPO was made effective until 8 January 2011.\nOn 25 May 2010, an arrest warrant was issued for defendant for the offense of assault on a female committed against plaintiff. The warrant alleged that on 11 December 2009 defendant committed the same acts of violence against plaintiff as plaintiff had alleged in her 11 December 2009 complaint and motion for a domestic violence protection order. Defendant was arrested on 8 July 2010 and entered an Alford guilty plea to the charge on 26 October 2010. The trial court granted a prayer for judgment continued.\nOn 6 January 2011, plaintiff filed a motion to renew the Consent DVPO, which was to expire on 8 January 2011. In her motion, plaintiff claimed that defendant \u201chas shown he continues to be a threat,\u201d cited his guilty plea to the 11 December 2009 assault, and stated that she feared for her safety.\nDuring a 14 January 2011 hearing on plaintiffs motion, defendant moved to dismiss the motion on the ground that the Consent DVPO was facially invalid because the order contained no finding of fact or conclusion of law that defendant committed an act of domestic violence, as required by N.C. Gen. Stat. \u00a7 50B-3(a). Acknowledging that the Consent DVPO lacked a conclusion of law or finding of fact regarding an act of domestic violence, the trial court took judicial notice of defendant\u2019s 8 July 2010 Alford guilty plea to \u201cjudicially establish^]\u201d that defendant committed an act of domestic violence. Accordingly, the trial court denied defendant\u2019s motion to dismiss plaintiff\u2019s motion to renew the order.\nThe trial court next heard arguments on plaintiff\u2019s motion to renew the Consent DVPO and renewed the order for a one-year period expiring on 14 January 2012. Defendant appeals from the trial court\u2019s orders.\nDiscussion\nDefendant claims that the trial court erred by denying his motion to dismiss plaintiff\u2019s motion to renew the Consent DVPO because the Consent DVPO was void ab initio. Defendant bases his argument on the fact that the Consent DVPO contained no findings of fact or conclusions of law establishing that he committed an act of domestic violence. Because we are bound by this Court\u2019s decision in Bryant v. Williams, 161 N.C. App. 444, 446-47, 588 S.E.2d 506, 507-08 (2003), we must agree.\nIn Bryant, a divided panel of this Court vacated a consent order entered pursuant to N.C. Gen. Stat. \u00a7 50B-3 because the order lacked a finding that an act of domestic violence had been committed. Bryant, 161 N.C. App. at 446-47, 588 S.E.2d at 507-08. The majority in Bryant observed that our General Statutes required protective orders and consent orders entered pursuant Chapter 50B be entered \u201c \u2018to bring about a cessation of acts of domestic violence.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 50B-3(a) (2001)) (emphasis added). Without a finding by the trial court that an act of domestic violence had occurred, the trial court had no authority under Chapter 50B to enter an order for the purpose of ceasing domestic violence between the parties. Id. (\u201cThe court\u2019s authority to enter a protective order or approve a consent agreement is dependent upon finding that an act of domestic violence occurred and that the order furthers the purpose of ceasing acts of domestic violence.\u201d (emphasis added) (citing Brandon v. Brandon, 132 N.C. App. 646, 654, 513 S.E.2d 589, 595 (1999)).\nWe note that N.C. Gen. Stat. \u00a7 50B-3 was amended multiple times after our decision in Bryant. In 2005, the Legislature amended section 50B-3(a) deleting the language regarding \u201ccessation\u201d that was quoted in Bryant. 2005 N.C. Sess. Laws ch. 423, sec. 1 (effective 1 October 2005). However, the same amendment to the statute specified that \u201c[i]f the court. . . finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence.\u201d Id. (codified at N.C. Gen. Stat. \u00a7 50B-3(a) (2011) (emphasis added)).\nWe discern no meaningful distinction between the amended language of N.C. Gen. Stat. \u00a7 50B-3(a) (2011) and the language of N.C. Gen. Stat. \u00a7 50B-3(a) (2001) quoted in Bryant, 161 N.C. App. at 446, 588 S.E.2d at 507-08. Our conclusion is supported by the preamble to 2005 N.C. Sess. Laws ch. 423, which states, inter alia, that the 2005 amendment was intended to \u201cCLARIFY AND ENHANCE THE LAWS RELATING TO DOMESTIC VIOLENCE.\u201d Therefore, we must conclude the precedent set by Bryant is controlling in this case. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d).\nThus, we hold that because the Consent DVPO, entered 8 January 2010 by Judge Criner, lacked any finding that defendant committed an act of domestic violence it was void ab initio. Consequently, the trial court erred by denying defendant\u2019s motion to dismiss plaintiff\u2019s motion to renew the Consent DVPO and erred by ordering the Consent DVPO renewed for a period of one year. Accordingly, we reverse the 11 February 2011 order denying defendant\u2019s motion to dismiss plaintiff\u2019s motion to renew the 8 January 2010 consent DVPO. The 14 January 2011 order renewing the consent DVPO is vacated.\nReversed & Vacated\nJudges GEER and HUNTER, Jr., Robert N., concur.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Ward and Smith, P.A., by John M. Martin and Lauren T. Amette, for defendant-appellant.", "No brief for plaintiff." ], "corrections": "", "head_matter": "MARYELLEN KENTON, Plaintiff v. JAMES P. KENTON, Defendant\nNo. COA11-531\n(Filed 7 February 2012)\nDomestic Violence \u2014 protective order \u2014 no findings or conclusions of violence \u2014 order void ab initio\nThe trial court erred by denying defendant\u2019s motion to dismiss plaintiff\u2019s motion to renew a consent Domestic Violence Protective Order (DVPO). The consent DVPO was void ab initio because it contained no findings of fact or conclusions of law establishing that defendant committed an act of domestic violence.\nAppeal by defendant from orders entered 14 January 2011 and 11 February 2011 by Judge Jeffrey E. Noecker in New Hanover County District Court. Heard in the Court of Appeals 16 November 2011.\nWard and Smith, P.A., by John M. Martin and Lauren T. Amette, for defendant-appellant.\nNo brief for plaintiff." }, "file_name": "0603-01", "first_page_order": 613, "last_page_order": 616 }