Charge: 50-B Domestic Violence Protective Order
Case Result: Order Not Granted
County: Forsyth
What Happened:
Our client was served with a Domestic Violence Protective order from his recently estranged wife. The couple got into an argument which led them to split. Several days after the couple parted ways, the wife of our client filed a 50-B. In the 50-B she alleged a sexual assault weeks earlier between the spouses during a sexual encounter; as well as verbal and emotional harassment and financial harm. Our client produced text and phone records, bank statements and other evidence to refute the claims by the Plaintiff-spouse. The Plaintiff subsequently had our client erroneously removed from his lease and contacted his employer about the allegations in the 50-B.
Defense Strategy
A Plaintiff who is seeking a Domestic Violence Protective Order (50-B) must establish that they are in fear of physical harm to either themselves or their family. In order for a plaintiff to show this to a trial judge, their testimony must be credible for the court to believe they are subjectively in fear of harm.
In this case our goal was to attack the credibility of the Plaintiff’s assertion that she was in fact in fear. The Plaintiff claimed that the sexual assault happened approximately eight weeks before she filed the 50-B. Our strategy was to use the text messages, receipts, and other paperwork from that time period to show that communication between the two parties showed no signs of imminent fear or harm.
In addition to the text messages, we opted to depose the Plaintiff. This was to ask questions, under oath, with regard to the party’s marriage and allegations surrounding the complaint. Our plan was to juxtapose the initial statement in the complaint, with the Plaintiff’s deposition with the Plaintiff’s direct testimony at trial. Our goal was to use all three of these sworn statements to show inconsistencies in the Plaintiff’s accounts and challenge the credibility of the Plaintiff.
Trial
A lengthy trail saw the testimony of the Plaintiff, the Defendant, and the couple’s marriage counselor. Our strategy to expose the inconsistencies in the Plaintiff’s motives and credibility was successful during cross examination. We challenged the Plaintiff on her statements, under oath, during the deposition in which she never highlighted any her fear of the Defendant, but rather her standard marital quibbles.
We also directed the court’s attention to analyze not only the burden of proof but most importantly what needed to be proven by the Plaintiff. In a 50-B trial, the Plaintiff must show by a preponderance of the evidence that an act of domestic violence occurred and has resulted in fear of the Defendant. For many courts, showing an act of domestic violence occurred is enough to impute the requisite fear. Here, the accusation of a sexual assault was a “he said-she said” in which the Plaintiff said it happened and the Defendant said it did not. We showed the court that it was important to analyze what the actions of the Plaintiff were subsequently. She went on a romantic date with the Defendant just days later, greeted the Defendant with consistent “good morning” love texts and spent money on clothes and manicures regularly. We argued that these were not the actions of a person living in abject fear as she claims in her complaint.
Ultimately, the Court ruled that while it does not know what happened the night of the alleged assault; it could not believe the Plaintiff was in fear of the Defendant because of the Plaintiff’s subsequent actions. The judge denied the Plaintiffs complaint for a 50-B.