IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA26-111
Filed 16 September 2026
Dare County, No. 24CV001660-270
NEILS MOORE, Plaintiff,
v.
LAURA VOLASTRO, Defendant.
Appeal by plaintiff from order entered 3 July 2025 by Judge Jennifer R. Wells
in Dare County District Court. Heard in the Court of Appeals 26 August 2026.
Hayes Law Offices, PLLC by Mark L. Hayes, for the plaintiff-appellant.
Hiner Law, PLLC by Frank P. Hiner, IV, for the defendant-appellee.
TYSON, Judge.
Neils Moore (“Plaintiff”) appeals from the trial court’s order, which awarded
ownership of a dog to Laura Volastro (“Defendant”). We affirm.
I. Background
Plaintiff and Defendant began a dating relationship in 2020 and moved in
together in November of 2021. The couple discussed getting a dog. They researched
breeds and decided to purchase a Great Dane puppy. On 8 December 2023, the couple
visited a breeder kennel, and Plaintiff placed a $500.00 deposit to secure acquisition
of a puppy. The couple agreed to pick up the puppy upon return from vacation on 2
January 2024.
MOORE V. VOLASTRO
Opinion of the Court
On Christmas Day, Defendant posted on Facebook social media: “Introducing
Roxy Rose . . . Thank you Honey. She’s beautiful.” When the couple picked “Roxy”
up from the breeder, the bill of sale identified Plaintiff as buyer, but also listed
Defendant’s email address and phone number for the contact information. Plaintiff
paid the remaining $500.00 due when they picked the dog up from the breeder.
The couple’s relationship deteriorated over the next six months. On 24 August
2024, defendant obtained an ex parte domestic violence protective order (“DVPO”)
against Plaintiff. The ex parte DVPO ordered for Defendant to retain possession of
the dog. On 29 August 2024, Defendant obtained a DVPO against Plaintiff, which
granted to Defendant “the care, custody, and control” of the dog.
Plaintiff was accused of violating the DVPO on 9 December 2024. On 17
December 2024, he filed a Complaint to Recover Possession of Personal Property
against Defendant in the Small Claims Division of the Dare County District Court.
The subjects of the complaint sought recovery of a 1.39 carat diamond engagement
ring, one-third of the rent for the month of August, Christmas decorations, various
kitchen accoutrements, and the dog, Roxy. The complaint listed the value of the dog
as $1,000.00.
Defendant filed a response to the complaint, in which she adamantly stated
Roxy was a Christmas gift from Plaintiff, and the dog belongs solely to her.
Defendant stated she would give Plaintiff all of the other items he had requested, but
“Roxy is a different story.” The matter was heard before the magistrate on 15
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Opinion of the Court
January 2025. The court ordered for Plaintiff to recover possession of all items listed
in his complaint, except the dog. Plaintiff appealed to District Court.
The District Court heard the matter on 30 June 2025. The court found and
concluded the dog was a gift from Plaintiff to Defendant, and Defendant had provided
care for the dog since it was acquired. The court awarded possession of the dog to
Defendant. Plaintiff appeals.
II. Issues
Plaintiff argues the trial court erred by finding and concluding Plaintiff had
gifted the dog to Defendant.
III. Jurisdiction
This Court has jurisdiction over this appeal pursuant to N.C. Gen. Stat. § 7A27(b)(2) (2025) (Appeal lies of right directly to this Court “[f]rom any final judgment
of a district court in a civil action.”)
IV. Standard of Review
The standard of review from a bench trial “is whether . . . competent evidence
. . . support[s] the trial court’s findings of fact and whether its conclusions of law were
proper in light of such facts.” Parker v. DeSherbinin, 257 N.C. App. 319, 327, 810
S.E.2d 682, 686 (2018). “Findings of fact . . . are conclusive on appeal if there is
evidence to support those findings.” Id. The trial court’s conclusions of law are
reviewed de novo. Id.
V. Inter Vivos Gift
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Opinion of the Court
The elements needed to show an inter vivos gift are: (1) the intent of the donor
to give the donee the gift and to divest himself immediately of all right and title to
and control of it; and, (2) the delivery, actual or constructive, of the gift to the donee.
Fesmire v. First Union Nat’l Bank, 267 N.C. 589, 591-92, 148 S.E.2d 589, 592 (1966)
(citations omitted). The party claiming the gift bears the burden to prove these
elements. Id. at 591, 148 S.E.2d at 592. The intention to make the gift need not be
expressly announced, “but may be inferred from the facts attending the delivery.”
Newman v. Bost, 122 N.C. 524, 528, 29 S.E.2d 848, 848 (1898).
The trial court found as fact:
9. On [December 8, 2023], the Plaintiff put down a $500
deposit to secure the acquisition of the puppy.
10. [Plaintiff and Defendant] agreed that they wanted to
buy the puppy but since they were traveling to Hawaii for
Christmas they agreed to pick the puppy up from the
breeder on January 2, 2024.
11. The Defendant testified . . . Plaintiff [had] told her
multiple times the dog was to be her Christmas present.
12. The Defendant posted on Facebook on Christmas Day:
“Introducing Roxy Rose . . . Thank you Honey. She’s
beautiful.”
13. When Plaintiff and Defendant went to pick up the
puppy on January 2, 2024, they filled out a Bill of Sale with
the breeder that listed the Plaintiff as the Buyer of the dog
but had Defendant’s email address and phone number for
the contact information.
14. The Defendant immediately started taking the dog to
the dog park at First Flight almost on a daily basis.
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Opinion of the Court
15. Sometimes the Plaintiff would accompany the
Defendant to the dog park.
16. Several witnesses testified they heard the Defendant
refer to the dog as a Christmas gift from the Defendant (sic)
and the Defendant nodded or gestured in assent.
17. One witness from the dog park testified the Plaintiff
told her the dog was a Christmas gift to the Defendant.
18. Several witnesses for the Plaintiff testified the Plaintiff
referred to the dog as the family dog, never as “his” dog.
19. The Defendant testified that from the moment they
brought the dog home, she provided the great majority of
her care, including but not limited to, taking her to the vet
and [e]nsuring timely vaccinations, registering her with
the AKC, registering her with Dare County, registering her
microchip in her name, buying her food, buying her crate,
buying her toys, purchasing pet insurance in her name,
and taking her for walks and to the dog park.
The court found and concluded Defendant had proven by a preponderance of
the evidence the dog had been gifted to her by Plaintiff.
A. Intent to Gift
Plaintiff first argues the evidence failed to show he had the intent to
immediately divest himself of all right and title to and control of the dog. Fesmire,
267 N.C. at 591-92, 148 S.E.2d at 592. He asserts the bill of sale for the dog states
he is the sole buyer and the bill of sale form is blank to indicate “co-ownership,” which
indicates he did not intend for Defendant to be an owner of the dog. He further
asserts he maintained his right to and control of the dog by purchasing food, “taking
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Opinion of the Court
her out” and to the dog park, and paying for and attending obedience classes with the
dog. Plaintiff claims, at the very most, he ceded some control of the dog to Defendant
by acquiescing to her concurrent care for the dog, but he did not cede total control as
is required to prove an inter vivos gift. See id. After Plaintiff bought the dog, the dog
came to live at his residence, and Plaintiff never indicated Defendant could take the
dog with her when she left the apartment.
The trial court heard evidence from both parties regarding whether Plaintiff
intended to gift the dog to Defendant. “[W]here different reasonable inferences can
be drawn from the evidence, the determination of which reasonable inferences shall
be drawn is for the trial judge” as the finder of fact. Repair Co. v. Morris & Assoc., 2
N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968).
It is axiomatic that
an important aspect of the trial court’s role as finder of fact
is assessing the demeanor and credibility of witnesses,
often in light of inconsistencies or contradictory evidence.
It is in part because the trial court is uniquely situated to
make this credibility determination that appellate courts
may not reweigh the underlying evidence presented at
trial.
In re J.A.M., 372 N.C. 1, 11, 822 S.E.2d 693, 700 (2019).
Here, sufficient evidence was presented tending to show and from which the
trial court found and concluded the dog was a Christmas gift from Plaintiff to
Defendant. This Court will not reweigh the evidence. Id. This argument is
overruled.
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Opinion of the Court
B. Delivery
Plaintiff next argues the evidence failed to show he delivered the dog to
Plaintiff in a manner to divest himself of his dominion over it, because he had lived
with the dog continuously until it was taken from him by an ex parte court order. The
case of Swindell v. Swindell involved a dispute over whether a husband had gifted a
horse to his wife and is instructive. Our Supreme Court explained:
It was not required, in order to complete the gift, that she
should continue in the sole possession of the horse. If it
was her property, the mere possession and use of the horse
afterward by her husband did not divest or even impair her
title, no more than such a possession and use of property,
which she had acquired by purchase or which she owned at
the time of the marriage, would affect her title to such
property.
Swindell v. Swindell, 153 N.C. 22, 23, 68 S.E.2d 892, 892 (1910).
Under and applying Swindell, the fact Plaintiff purchased and lived with the
dog, engaged with it, and provided for some of its care, did not demonstrate his intent
to maintain sole dominion and control over the dog. Id. Plaintiff and Defendant
cohabitated with the dog, which made it impossible for Plaintiff to wholly physically
deliver and divest himself of possession of the dog. It stands to reason Plaintiff would
engage with the dog and provide some of its care while the parties lived together. The
evidence tends to show, and the trial court could find and conclude, Plaintiff delivered
the dog as a gift and Defendant spent significantly more time attending to the dog’s
needs and holding herself out as the owner. Plaintiff’s argument is overruled.
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Opinion of the Court
VI. Conclusion
Sufficient evidence was presented to support the trial court’s findings and
conclusion the dog was intended as a Christmas gift from Plaintiff and delivered to
Defendant. The trial court’s order awarding possession and ownership of the dog to
Defendant is affirmed. It is so ordered.
AFFIRMED.
Judges STROUD and MURRY concur.
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