Chociej v. Richburg ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-548
Filed 21 February 2023
Durham County, No. 21 CVD 500218
KATHRYN CHOCIEJ, Plaintiff,
v.
MARSHALL JERRY RICHBURG, Defendant.
Appeal by Plaintiff from judgment entered 5 October 2021 by Judge Doretta L.
Walker in Durham County District Court. Heard in the Court of Appeals 11 January
2023.
Legal Aid of North Carolina, Inc., by Corey Frost, Dietrich D. McMillan,
Larissa Mañón Mervin, TeAndra H. Miller, Celia Pistolis, and James Battle
Morgan, Jr., for Plaintiff-Appellant.
No brief filed on behalf of Defendant-Appellee.
CARPENTER, Judge.
Kathryn Chociej (“Plaintiff”) appeals from the trial court’s dismissal of her
Complaint and Motion for Domestic Violence Protective Order (“Complaint”) filed
against Marshall Jerry Richburg (“Defendant”) and the trial court’s denial of her
subsequent Rule 59 Motion to Amend the Judgment or for New Trial (“Rule 59
Motion”). On appeal, Plaintiff asserts the trial court erred by granting Defendant’s
Motion to Dismiss the Complaint despite finding Defendant assaulted Plaintiff on
two occasions. After careful review, we agree with Plaintiff. Accordingly, we reverse
CHOCIEJ V. RICHBURG
Opinion of the Court
and remand for entry of a Domestic Violence Protective Order (“DVPO”).
I. Factual and Procedural Background
In 2021, Plaintiff and Defendant resided together in a dating relationship. On
31 May 2021, an altercation broke out between the couple, and Defendant assaulted
Plaintiff with his fists and forehead, breaking her nose. Defendant also threw a vodka
bottle and a peanut butter jar against the wall, leaving holes, and destroyed
Plaintiff’s television. Afterwards, Defendant apologized and promised to seek mental
health treatment. On 16 June 2021, another fight broke out in the parties’ bedroom.
This time, Defendant assaulted Plaintiff with a belt, household objects, including a
drawer and a lamp, and his forehead and fists, causing a black eye and bruises to
Plaintiff’s hands. When the police arrived, Defendant had already fled, but he was
arrested in early July and charged with assault on a female.
After his arrest, Defendant called Plaintiff’s employer to report she had
wrongfully disclosed his confidential medical information to a third party. After
being suspended on 16 July 2021, Plaintiff was terminated by her employer on 20
July 2021. Also on 20 July 2021—the same date as the adverse employment action—
Plaintiff filed the Complaint against Defendant.
During the hearing on 5 October 2021, Plaintiff testified that Defendant
assaulted her on multiple occasions, and she introduced photographs of her injuries,
which the court admitted into evidence. Defendant presented no evidence. In open
court, the trial court considered the duration of time between the assaults and
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Opinion of the Court
Plaintiff seeking DVPO relief. The trial court also noted the timing between the
adverse employment action and Plaintiff’s initiation of the case. Ultimately, the trial
court concluded Plaintiff “failed to prove grounds for [the] issuance of a [DVPO]” and
dismissed her Complaint. To support its conclusion, the court made the following
findings of fact:
Although this court believes Defendant assaulted Plaintiff
on two different occasions. Court does not believe that
Plaintiff would have taken out [the DVPO] if she had not
been in trouble at her job for releasing to Defendant’s
friend his medical information. Her fear of defendant
appears to have developed after she was suspended from
her job due to defendant’s ‘harassment and vindictiveness’
per Plaintiff’s testimony by Defendant’s calling her boss to
report Plaintiff’s violation of releasing his private
information.
Plaintiff timely filed the Rule 59 Motion. After a hearing on 6 December 2021,
the trial court denied Plaintiff’s Rule 59 Motion by written order filed on 19 January
2022. Plaintiff timely appealed from both orders.
II. Jurisdiction
This Court has jurisdiction over an appeal from both orders pursuant to N.C.
Gen. Stat. § 7A-27(b) (2021).
III. Issues
The issues on appeal are whether the trial court erred by: (1) dismissing
Plaintiff’s Complaint due to insufficient fear of serious bodily injury or continued
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Opinion of the Court
harassment after finding Defendant had assaulted Plaintiff on two occasions; and (2)
denying Plaintiff’s Rule 59 Motion.
IV. Analysis
On appeal, Plaintiff first argues the trial court erred by dismissing the
Complaint where uncontroverted evidence showed Defendant assaulted Plaintiff on
two occasions, and by denying relief absent a showing of fear of imminent serious
bodily injury or continued harassment. After careful review, we agree with both
arguments.
“When the trial court sits without a jury [on a DVPO], the standard of review
on appeal is whether there was competent evidence to support the trial court's
findings of fact and whether its conclusions of law were proper in light of such facts.”
Forehand v. Forehand, 238 N.C. App. 270, 273, 767 S.E.2d 125, 127 (2014) (quoting
Hensey v. Hennessy, 201 N.C. App. 56, 59, 685 S.E.2d 541, 544 (2009)). “Competent
evidence is evidence that a reasonable mind might accept as adequate to support the
finding.” Ward v. Ward, 252 N.C. App. 253, 256, 797 S.E.2d 525, 528 (2017) (internal
quotations omitted), appeal dismissed and disc. review denied 369 N.C. 753, 800
S.E.2d 65 (2017).
A trial judge sitting without a jury must specifically find facts and state
separately its conclusions of law. N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 52(a)(1)
(2021). “Evidence must support findings; findings must support conclusions;
conclusions must support the judgment. . . . [E]ach link in the chain of reasoning must
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Opinion of the Court
appear in the order itself.” Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190
(1980).
“Domestic violence” has been defined by our Legislature as:
the commission of one or more of the following acts upon
an aggrieved party or upon a minor child residing with or
in the custody of the aggrieved party by a person with
whom the aggrieved party has or has had a personal
relationship, but does not include acts of self-defense:
(1) Attempting to cause bodily injury, or intentionally
causing bodily injury; or
(2) Placing the aggrieved party or a member of the
aggrieved party’s family or household in fear of imminent
serious bodily injury or continued harassment, as defined
in [N.C. Gen. Stat. §] 14-277.3A, that rises to such a level
as to inflict substantial emotional distress; or
(3) Committing any act defined in [N.C. Gen. Stat. §§] 14-
27.21 through . . . 14-27.33.
N.C. Gen. Stat. § 50B-1(a) (2021). Each subsection of the statute—separated by the
disjunctive conjunction, “or”—independently and sufficiently constitutes an act of
domestic violence under North Carolina law. See Rudder v. Rudder, 234 N.C. App.
173, 180, 759 S.E.2d 321, 326 (2014) (“The statute thus specifies several alternative
ways in which one may commit an act of domestic violence.”). A showing of “fear of
imminent serious bodily injury or continued harassment” is not required where a
defendant intentionally causes bodily injury or attempts to cause bodily injury upon
the aggrieved party. See N.C. Gen. Stat. § 50B-1(a).
Upon a finding that “one or more” acts of domestic violence have occurred
between individuals with a sufficient past or present “personal relationship[,]” N.C.
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Gen. Stat. § 50B-1, “the court shall grant a protective order . . . .” N.C. Gen. Stat. §
50B-3(a) (emphasis added). When subsections (a) and (b) of N.C. Gen. Stat. § 50B-1
are satisfied, the issuance of a DVPO is mandatory, not discretionary. See D.C. v.
D.C., 279 N.C. App. 371, 373 n.2, 865 S.E.2d 889, 890 n.2 (2021) (“[I]f a trial court
determines that an act qualifying as domestic violence occurred, the trial court is
required to issue a DVPO.”).
Here, the parties were in a cohabitating dating relationship at the time of the
incidents, which constitutes a “personal relationship” within the meaning of the
statute. See N.C. Gen. Stat. § 50B-1(b)(6) (“persons . . . who are in a dating
relationship or have been in a dating relationship.”). In the 5 October 2021 order
dismissing the Complaint, the trial court explicitly found, based upon competent and
uncontroverted evidence, that “Defendant assaulted Plaintiff on two different
occasions.” The finding that Defendant committed two separate assaults against
Plaintiff is irreconcilable with the trial court’s conclusion that Plaintiff “failed to
prove grounds for issuance of a [DVPO].” See Forehand, 238 N.C. App. at 273, 767
S.E.2d at 127. At minimum, the trial court’s finding of two separate assaults based
upon the evidence presented necessitates the conclusion that Defendant
“[a]ttempt[ed] to cause bodily injury” to Plaintiff. See N.C. Gen. Stat. § 50B-1(a)(1).
Accordingly, we reverse and remand for entry of a DVPO, inclusive of any relief set
forth in N.C. Gen. Stat. § 50B-3(a) that the trial court deems appropriate under the
facts of this case.
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Opinion of the Court
Having concluded the trial court reversibly erred by dismissing Plaintiff’s
request for a DVPO, we do not reach the issue of whether the trial court abused its
discretion in denying Plaintiff’s Rule 59 Motion, wherein Plaintiff sought the same
relief under a more exacting standard.
V. Conclusion
In sum, because the trial court found that one or more acts of domestic violence
occurred between two individuals with a sufficient personal relationship, the trial
court lacked discretion to deny Plaintiff’s request for a DVPO. See D.C., 279 N.C.
App. at 373, 865 S.E.2d at 890. Accordingly, we reverse the trial court’s dismissal of
the Complaint and remand for entry of a DVPO. On remand, the trial court should
consider all potential relief set forth in N.C. Gen. Stat. § 50B-3(a) and grant any such
relief the trial court deems appropriate under the facts of this case.
REVERSED AND REMANDED.
Judges MURPHY and GRIFFIN concur.
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