A case, Kenton v. Kenton [1], decided at the Court of Appeals last month is getting quite a bit attention by family law attorneys in North Carolina. Maryellen Kenton and James P. Kenton were husband and wife. Maryellen had obtained a Domestic Violence Protective Order (DVPO) against her husband in January 2010 through an agreement signed by both parties. The agreement stated that the parties entered into the Consent Order without express findings of fact. The Honorable Sandra Ray Criner approved and entered the Consent Order in New Hanover County.
In May 2010, the husband was arrested for assault on Ms. Kenton and entered an Alford guilty plea in October 2010. Ms. Kenton attempted to renew the DVPO in January 2011 citing Mr. Kenton’s guilty plea as evidence that he continues to be a threat. Mr. Kenton moved to dismiss the renewal of the DVPO on the grounds that it was invalid as failing to show he had ever committed an act of domestic violence. The Honorable Jeffrey Evan Noecker took judicial notice of his guilty plea for assault and renewed the order denying his motion to dismiss. The North Carolina Court of Appeals reversed Judge Noecker holding that without a finding that an act of domestic violence had ever occurred, the trial court had no authority to enter a restraining order to prohibit future acts of domestic violence and therefore, the Consent Order was void ab initio.
It has not been uncommon to enter Consent Orders to resolve complaints regarding domestic violence without specific findings of fact so that a spouse has the protection of a restraining order without the other spouse having findings that can be used in a criminal prosecution.
As a result, family law attorneys and some judges are reviewing Domestic Violence Protective Orders entered by Consent throughout the State of North Carolina in the wake of the Kenton holding to determine whether orders entered without findings of fact as to domestic violence are valid. A “flood” of motions to set aside protective orders is expected.
In our practice, we have often used common law restraining orders in lieu of DVPOs to achieve the same goal and they are not affected by the Kenton decision.