Rule 52 DVPO Findings: Incorporation-by-Reference Permitted When the Trial Court Independently Assesses Credibility and Meaningfully Adopts Only Corroborated Allegations

Case: Jay v. Jay, Supreme Court of North Carolina (20 March 2026)
Review posture: Appeal under N.C.G.S. § 7A-30(2) (2023) from a divided Court of Appeals decision, Jay v. Jay, 298 N.C. App. 50 (2025).

I. Introduction

Jay v. Jay addresses a recurring procedural problem in domestic violence protective order (DVPO) practice: trial courts must make findings of fact detailed enough to satisfy Rule 52(a) and enable appellate review, yet DVPO hearings are often fast-moving and fact-intensive. The key issue was not whether evidence existed to support a DVPO, but whether the form of the trial court’s findings complied with Rule 52 when the court attached (and edited) the plaintiff’s unverified written statement of allegations and incorporated it by reference.

Parties. Plaintiff Yanli Jay (Mrs. Jay) sought a one-year DVPO against defendant Gary Wayne Jay (Mr. Jay). Mrs. Jay filed an unverified complaint and a written statement alleging sexual abuse and other misconduct. After an evidentiary hearing at which both parties testified, the district court entered a one-year DVPO.

Core question. Does a trial court violate Rule 52 by incorporating an unverified, party-prepared statement into its findings, rather than writing out the findings in the order—particularly where the judge strikes portions of the statement and hears sworn testimony?

II. Summary of the Opinion

The Supreme Court affirmed. It held that the trial court’s findings complied with Rule 52 because the record showed the judge: (1) heard sworn testimony from both parties, (2) used that testimony to assess credibility, and (3) did not “indiscriminately” adopt the written allegations, but instead meaningfully edited the written statement (striking lines/paragraphs and initialing changes) and incorporated the remaining portions as “further findings.”

The Court emphasized, however, that this disposition was not an endorsement of the practice as a preferred method; express findings drafted in the order remain “the better practice.”

III. Analysis

A. Precedents Cited (and How They Shaped the Holding)

• Coble v. Coble, 300 N.C. 708 (1980)
  Role in the opinion: The Court used Coble to restate the foundational purpose of findings: they force the trial court to grapple with litigants’ issues and permit meaningful appellate review. This set the evaluative lens: the question is whether the findings (as made) allow review, not whether they are stylistically ideal.
• N.C.G.S. § 1A-1, Rule 52(a) (2025)
  Role in the opinion: The governing text requiring the court to “find the facts specially” and “state separately its conclusions of law.” The Court interpreted what “find” demands when the court references external documents.
• State v. Williams, 362 N.C. 628 (2008)
  Role in the opinion: Provided the DVPO appellate review framework used here: appellate courts ask whether competent evidence supports findings and whether conclusions of law are proper in light of those findings; supported findings bind on appeal.
• Williams v. Cabrera, 298 N.C. App. 611 (2025)
  Role in the opinion: Reinforced that one-year DVPOs must comply with Rule 52, anchoring the dispute in civil-procedure factfinding doctrine rather than DVPO merits.
• In re E.D.H., 381 N.C. 395 (2022)
  Role in the opinion: Supported de novo review of Rule 52 interpretation as statutory interpretation. This justified the Supreme Court’s independent assessment of the “incorporation-by-reference” method.
• Quick v. Quick, 305 N.C. 446 (1982)
  Role in the opinion: Supplied the key distinction: Rule 52 does not require all evidentiary/subsidiary facts, but it does require “specific findings of the ultimate facts” necessary to support conclusions of law. The Court relied on this to validate the trial court’s relatively concise explicit findings (“violent sexual contact” and “physical injury”) as “ultimate facts,” with Exhibit A providing additional detail.
• Woodard v. Mordecai, 234 N.C. 463 (1951)
  Role in the opinion: Defined “ultimate facts” as the middle ground between evidentiary facts and legal conclusions. This definition allowed the Court to treat the DVPO’s stated conduct/injury determinations as ultimate, even if not lengthy.
• In re H.B., 384 N.C. 484 (2023)
  Role in the opinion: A principal comparator on incorporation-by-reference. The Court contrasted proper incorporation (where credibility/reliability is found) with improper “mere recitation.” The Court also imported In re H.B.’s cautionary note: even if permissible, incorporation is not best practice.
• In re A.E., 379 N.C. 177 (2021)
  Role in the opinion: The negative example: incorporating “mere recitations of testimony” is improper where the order lacks indications the trial court evaluated credibility. The Supreme Court distinguished this case by pointing to the trial court’s selective edits and the corroborating sworn testimony.
• In re K.R.C., 374 N.C. 849 (2020)
  Role in the opinion: Supported the principle that findings must connect to ultimate facts and conclusions so appellate review is possible. The Court used it to frame the sufficiency inquiry: are the findings “tethered” to the adjudicatory determinations?
• In re T.N.H., 372 N.C. 403 (2019)
  Role in the opinion: Supplied a boundary rule: a court may not rely solely on prior orders/reports; it must hear some oral testimony and make an independent determination. The Supreme Court leaned on this to stress that the trial court here did not “rely solely” on the written statement—it heard live testimony.
• In re Anderson, 151 N.C. App. 94 (2002) and In re H.P., 278 N.C. App. 195 (2021)
  Role in the opinion: The Court quoted these authorities for the proposition that findings must be more than “recitation of allegations” and must be specific ultimate facts. The Supreme Court’s move was to treat the marked-up, selectively adopted allegations—tested against sworn testimony—as transformed into judicial findings rather than mere allegations.
• Jay v. Jay, 298 N.C. App. 50 (2025)
  Role in the opinion: Provided the split below: the majority accepted incorporation given credibility opportunities; the dissent argued it violated Rule 52 and flagged the “unverified complaint” concern. The Supreme Court largely resolved the split by emphasizing the credibility-assessment function and selective adoption demonstrated by the edits.

B. Legal Reasoning

The Court’s reasoning is best understood as a functional Rule 52 analysis focused on whether the trial court actually performed the judicial task of finding facts. Three components carry the holding:

1. Rule 52 requires “ultimate facts,” not exhaustive narratives.
   The Court treated the DVPO’s explicit statements—“Violent sexual contact” and “[Mr. Jay] has caused physical injury”—as the kind of determinative ultimate facts Rule 52 demands (consistent with Quick v. Quick and Woodard v. Mordecai), even though they were succinct.
2. Incorporation is permissible when it reflects judicial selection and credibility assessment, not passive copying.
   The opinion’s central move is to treat the “Exhibit A” attachment as judicially adopted content because the judge: (a) struck lines/paragraphs, (b) initialed the edits, and (c) aligned adoption with corroborated testimony. This was the Court’s answer to the dissent’s “delegation” critique: the judge did not outsource factfinding; he curated and adopted facts as his own.
3. The “unverified” nature of the statement is mitigated by sworn testimony and the trial court’s demonstrated evaluation.
   The dissent’s reliability objection (unverified allegations) was met by the Court’s emphasis that Mrs. Jay testified under oath to key incidents and Mr. Jay testified as well, giving the judge a basis to evaluate credibility. Although the order did not expressly say “I find this statement credible,” the Court inferred credibility assessment from the match between testimony and what the judge left intact versus struck.

C. Impact

• On DVPO practice: Trial courts in DVPO matters now have explicit Supreme Court confirmation that findings may incorporate an attached writing, even one originating as unverified allegations, so long as the judge does not rely on it mechanically and the hearing record supports independent credibility assessment. This may reduce remands that are based solely on the formatting of findings where the trial court’s adjudicative work is otherwise apparent.
• On Rule 52 jurisprudence: The opinion continues a trajectory seen in In re H.B.—a pragmatic approach that evaluates whether the trial court performed factfinding, not whether it drafted findings in the “best” way. At the same time, the Court preserves the doctrinal limit of In re A.E.: “mere recitation” without credibility evaluation remains improper.
• On appellate review and record-building: The case signals that appellate courts may infer credibility findings from the structure of the order and record alignment (e.g., selective striking of allegations plus corroborating testimony), even when the order lacks explicit “credible/reliable” language—though the Court reiterates that explicit findings are preferred.
• Litigation strategy consequences: Respondents challenging DVPOs may shift from form-based attacks (“incorporation is per se improper”) to record-based attacks (showing the incorporated content was not corroborated, the court relied solely on documents, or the incorporation was indiscriminate). Petitioners may more actively ensure allegations are testified to and corroborated at hearing.

IV. Complex Concepts Simplified

• Rule 52 findings (what they are): In a bench trial, Rule 52 requires the judge to write down the key facts the judge decided happened (findings of fact) and then explain the legal result (conclusions of law). The point is to show the “because” behind the judgment and allow appellate review.
• “Ultimate facts” vs. “evidentiary facts”: Evidentiary facts are the small building blocks (who said what, what time, what message). Ultimate facts are the decisive factual determinations that drive the legal outcome (e.g., that “violent sexual contact” occurred and caused “physical injury”). Rule 52 primarily demands ultimate facts sufficient to support the legal conclusions.
• “Competent evidence”: Evidence that is legally admissible and sufficient such that a reasonable factfinder could rely on it. If competent evidence supports a finding, appellate courts generally do not reweigh credibility.
• “Incorporation by reference”: Instead of retyping information into an order, a court attaches or references another document and treats it as part of the order. This is risky if it amounts to copying allegations or testimony without the court showing it made an independent decision about what is true.
• “Unverified” complaint/statement: “Unverified” means not sworn under oath at the time of filing. The dissent’s concern was that unverified allegations lack built-in reliability. The Supreme Court’s response was that later sworn testimony and judicial selection/editing can supply the missing reliability and demonstrate factfinding.

V. Conclusion

Jay v. Jay clarifies that Rule 52 is satisfied in a DVPO proceeding when incorporation-by-reference is paired with a demonstrable, independent judicial factfinding process: live testimony enabling credibility assessment and selective adoption (not wholesale copying) of the incorporated material. The Court affirms the DVPO while expressly cautioning that the “better practice” remains to draft clear, specific findings directly in the order.