Consent DVPOs without Findings of Fact Are Void ab Initio

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The court of appeals recently decided Kenton v. Kenton, a civil case of major significance for criminal lawyers. In a nutshell, a wife sought a domestic violence protective order (DVPO) against her husband. A district court judge entered a consent DVPO, finding that “[t]he parties agree to entry of this order without express findings of fact regarding the behavior of either party,” and noting that the parties also waived conclusions of law. A year later, the wife sought to renew the DVPO. The husband “moved to dismiss the motion on the ground that the [c]onsent 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 [G.S.] 50B-3(a).” The trial court denied the defendant’s motion and renewed the DVPO, but the court of appeals reversed. Citing Bryant v. Williams, 161 N.C. App. 444 (2003), it ruled that the DVPO was “void ab initio” because it “lacked any finding that defendant committed an act of domestic violence.”

No further appeal seems likely. The opinion was unanimous, so the wife doesn’t have a right to further review. And although the docket sheet states that she was represented by an attorney, no brief was filed on her behalf in the court of appeals.

So, now we know that consent DVPOs without findings of fact are not proper. I’ve heard that such orders were common practice in some districts and not common in others. To try to get a rough handle on the prevalence of such orders, I’ve put up a poll – please take a moment to note how things worked in your district.

Did judges in your district regularly enter consent DVPOs without findings of fact?

View Results

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Clearly, Kenton will affect any pending cases in which a defendant is charged with violating a consent DVPO without findings of fact. Under G.S. 50B-4.1, it is a crime to violate a “valid protective order.” An order that is void ab initio isn’t valid, so violating it can’t be a crime.

The more interesting question is whether Kenton affects past cases in which defendants have been convicted of violating consent DVPOs without findings of fact. Under G.S. 15A-1415(b)(1), a defendant is entitled to relief if “[t]he acts charged . . . did not at the time they were committed constitute a violation of criminal law.” I can imagine an argument that (1) Kenton-style DVPOs are void ab initio, meaning (2) that no such order was ever valid, no matter how common they were, and so (3) a defendant convicted of violating such an order was convicted of something that was not a crime. Or an argument that under the retroactivity principles of Teague, Kenton is an “old rule” and so retroactive at least to Bryant. On the other hand, the state may argue that Kenton is a “new rule” that should not be applied retroactively to afford relief in closed cases. I haven’t thought much about this, and I’d be interested in readers’ analyses of this issue. [Update: my colleague Jessie Smith believes that, because Kenton is grounded in state law, retroactivity should be determined under State v. Rivens, 299 N.C. 385 (1980), not Teague. Her paper here discusses the difference and states that Rivens provides for a presumption of retroactivity.] Note that if defendants are entitled to reopen old cases under Kenton, convictions beyond those for violating a DVPO may be implicated. For example, a defendant convicted of the federal crime of possessing a firearm while subject to a DVPO, 18 U.S.C. § 922(g)(8), might seek relief based on the asserted invalidity of the DVPO.

Kenton raises other issues, too, like how detailed the findings of fact must be to support a DVPO, and whether a defendant who is willing to consent to a DVPO can do so in a way that doesn’t amount to an admission in a related criminal case. Stay tuned.

8 comments on “Consent DVPOs without Findings of Fact Are Void ab Initio

  1. It is interesting that a lot of people can request a Protection Order without proving that there was any kind of domestic violence which occurred. Some parties indeed use this as a ploy to keep one parent from having visitation of the children. It this Justice, Truth or the American Way? It reminds me of the GOOD, the BAD and the UGLY…

    A protection order can be a GOOD thing, if indeed it is issued for the right reason.

    A protection order can be a BAD thing, if it is just a tool for one party to abuse the system with and to keep children from seeing another party.

    A protection order can be an UGLY thing, when it is abused by people who did not need one in the beginning and those who really need one can not get one because of the people who abused the system.

    A Protection Order should be issued only when the person has proof that one is needed.

    • What is the state going to do to discipline these magistrates and judges? Starting with Jackson County, NC. I have had 2 years of my life robbed under DVPO the actual abuser was awarded.

  2. The 50B statute is the most abused law ever made by mankind. Consenting to a DVPO is clearly admission in the eyes of law enforcement agencies and for those who seek a profession in law enforcement Good Luck because even thought you consented to a DVPO without finding of fact or guilty you are deemed guilty in the eyes of law enforcement…your better off to have a hearing and hope for the best…and if your already in law enforcement go ahead and pack up your items on your desk because the plaintiff has got you FIRED when she began filing an Ex-Parte against you. Cheers.

    • This is where a class action suit needs to be opened across the state and those harmed need to submitt their story, evidence, documents and names. Holding the state financially accountable as whole and have 50b wiped out. Ones who where harmed or children harmed by judge giving order to actual abuser keeping minor children in the abusers care even after discovery. The biggest challenge is finding an attorney who has balls and knows how to get things done. One who stops it! New York and DC have the best attorney on east coast.

  3. my wife has just filed a dvpo against me and she lives two hours away.

    i just wanted to talk to my child.

    she not only lives two hours away but is also keeping me from talking to my little girl!!!

    i have not communicated threats and have never harmed her in any way physically ……

    what do i do!!

    i know i am going to court but i dont understand how or why???

    help

    • DVPO are not suppose to alienate you from your child according to state level and any Judge in any county who enacts without finding of fact or rules out of jurisdiction should face the death penalty. May if they continue to rule in such ways it harms minor children. Robbed my life and my minor children giving the actual abuser the power to keep harming us. Let’s open a class action suit… Today against the state since law enforcements and judges claim immunity… I assure you they are not immune. They get away with to much. That the problem!

  4. […] a post here, Jeff wrote about the N.C. Court of Appeals decision in Kenton v. Kenton, holding that a consent […]

  5. My wife does not work and committed adultery. I work 2 jobs 12hr. 7 day a week. Ex parte put me out of my house which I paid for, for 5 mons so far. Now she is taking me to court to divorce and using the consent DVPO as a item to leverage alimony, child support, etc. So court ordered I will be working for her while she finds another male friend and never finds a job. I want to pay for my children but anything else makes me her slave, state ordered slave. False claim by one party made me a slave. How can any law maker look at this and call it justice or even close to being fair. Men are set to fail big under these types of lazy laws that group good men and call them criminals. Instead of maybe taking the time to find out how many of these women are abusing the system. All involved in the system are lazy and make are making the laws so the get paid and do as little as possible. Judges, lawyers, law enforcement, all of them

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