Rudder v. RudderRudder v. Rudder
Flitt, owed her any individual duty and her negligence claim fails as a matter of law. We accordingly affirm the Full Commission‘s order granting summary judgment to defendant.
AFFIRMED.
Judges CALABRIA and DAVIS concur.
1. Domestic Violence—ex parte protective order—findings of fact—pre-printed form—minimally sufficient
The trial court did not err by entering an ex parte domestic violence protective order (DVPO) against defendant. The court‘s findings of fact marked on a pre-printed form were minimally sufficient to support its conclusions that defendant committed acts of domestic violence against plaintiff and that it clearly appeared that there was a danger of acts of domestic violence against plaintiff. The trial court‘s failure to mark the first box of Finding 2 was merely a clerical error.
2. Domestic Violence—one-year protective order—ex parte order expired—court lacked authority
The trial court erred by entering a one-year domestic violence protection order (DVPO) after an ex parte DVPO had been in effect for more than 18 months, but then expired without being renewed. The trial court did not have authority to enter the one-year DVPO that was based upon the same complaint as the ex parte DVPO.
Appeal by defendant from orders entered 23 November 2010 by Judge L. Walter Mills and 28 September 2012 by Judge Kirby Smith in Carteret County District Court. Heard in the Court of Appeals 23 September 2013.
Wyrick Robbins Yates & Ponton, LLP, by Tobias S. Hampson, for defendant-appellant.
GEER, Judge.
Defendant William Overton Rudder appeals from an ex parte domestic violence protection order entered 23 November 2010 (“the ex parte DVPO“) and a one-year DVPO entered 28 September 2012 (“the September 2012 DVPO“). Defendant primarily contends that the trial court erred in entering the September 2012 DVPO after the ex parte DVPO was in effect for more than 18 months, but then expired without being renewed. We hold that because at the time the ex parte DVPO expired without being renewed, it had been in effect for more than a year, the trial court did not have authority to enter the September 2012 DVPO that was based upon the same complaint. We, therefore, vacate the September 2012 DVPO. Because, however, we find defendant‘s arguments regarding the ex parte DVPO unpersuasive, we affirm that order.
Facts
On 23 November 2010, plaintiff Elizabeth McDuffie Rudder filed a complaint and motion for a DVPO against defendant, her husband. Plaintiff had permanently moved out of the marital home 14 November 2010. Plaintiff‘s verified complaint alleged:
On November 1, 2010, I confronted Defendant about having an extra-marital affair. Defendant threw me on a couch, jumped on top of me and fractured my rib with his knee. The injury was documented by a physician. Defendant has attacked me physically on numerous occasions over the course of many years, including hitting me, throwing me on the floor and shoving me. Defendant encouraged me to kill myself by putting a gun in front of me and telling me to pull the trigger. Defendant has pointed a gun at me and said “click.” Defendant has threatened to kill me and my immediate family.
The trial court entered an ex parte DVPO on the same day that plaintiff filed her complaint. The order found that defendant had committed acts of domestic violence against plaintiff, that there was a danger of future acts of domestic violence against plaintiff, and that defendant‘s conduct required that he surrender all firearms, ammunition, and gun permits. A “Notice of Hearing on Domestic Violence Protective Order” was issued, which scheduled a hearing on 6 December 2010 for the purpose of determining “whether the [23 November 2010 ex parte]
Thereafter, approximately 13 orders were entered continuing the hearing on the ex parte DVPO. The first continuance order was entitled “ORDER CONTINUING DOMESTIC VIOLENCE HEARING AND EX PARTE ORDER” and noted that “[t]his matter was scheduled for hearing for emergency relief pursuant to
Nearly all of the other continuance orders were on the same form and contained the same pre-printed language that the hearing was being continued to allow time for service on the defendant. Some of the continuance orders further identified, in handwriting, the reason for the continuances as being, for example, to allow, by consent, the parties time to “resolve the marital issues“; by consent, to address matters in other pending litigation involving the parties; based upon secured leave by counsel; and because of the inability of the trial court to hear the matter due to other cases on the calendar.
The final continuance order entered 17 May 2012 was on the same form and included the same language as the first continuance order: “This matter was scheduled for hearing for emergency relief pursuant to
On 6 June 2012, defendant filed a motion pursuant to
The trial court calendared hearings on 31 August 2012 and 21 September 2012 to address various discovery-related motions in a related but separate divorce proceeding, as well as defendant‘s motion for return of firearms. At the hearing, plaintiff conceded that the ex parte DVPO had expired, but requested that the trial court nonetheless enter a one-year DVPO3 based upon the underlying complaint. The trial court allowed plaintiff to present evidence to support the issuance
On 28 September 2012, the trial court entered a one-year DVPO, finding that defendant had, nearly two years earlier, intentionally caused bodily injury to the plaintiff, placed her in fear of imminent serious bodily injury, and placed her in fear of continued harassment that rose to such a level as to inflict substantial emotional distress. Specifically, the trial court found:
On November 1, 2010, the defendant shoved the plaintiff down on a couch and jumped on top of her. The defendant threatened to kill the plaintiff and her immediate family. The defendant pointed a gun at the plaintiff and informed her he could kill her without anyone ever knowing. The defendant placed a gun in front of the plaintiff and told her to pull the trigger and kill herself. Over the course of the marriage, the defendant physically assaulted the plaintiff and committed further acts of domestic violence.
Based on its findings, the trial court concluded that the “defendant has committed acts of domestic violence against the plaintiff,” that “[t]here is danger of serious and immediate injury to the plaintiff,” and that “[t]he defendant‘s conduct requires that he[] surrender all firearms, ammunition and gun permits.” The court entered a DVPO effective for one year. Defendant timely appealed both the ex parte DVPO and the September 2012 DVPO to this Court.
Discussion
Initially, we note that the ex parte DVPO expired 4 June 2012, and the one-year DVPO was set to expire 28 September 2013, five days after this case was heard by this Court. This appeal is not, however, moot. See Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001) (holding that defendant‘s appeal of expired DVPO was not moot because of “‘stigma that is likely to attach to a person judicially determined to have committed [domestic] abuse[]’ ” and “the continued legal significance of an appeal of an expired domestic violence protective order” (quoting Piper v. Layman, 125 Md. App. 745, 753, 726 A.2d 887, 891 (1999))).
As explained in Smith, “there are numerous non-legal collateral consequences to entry of a domestic violence protective order that render expired orders appealable. For example, . . . ‘a person applying for a job, a professional license, a government position, admission to an academic institution, or the like, may be asked about whether he or she has been the subject of a [domestic violence protective order].’ ” Id. (quoting Piper, 125 Md. App. at 753, 726 A.2d at 891). We, therefore, may properly review both the ex parte DVPO and the September 2012 DVPO.
I
[1] In reviewing the ex parte DVPO entered 23 November 2010, we determine ” ‘whether there was competent evidence to support the trial court‘s findings of fact and whether its conclusions of law were proper in light of such facts. Where there is competent evidence to support the trial court‘s findings of fact, those findings are binding on appeal.’ ” Hensey v. Hennessy, 201 N.C. App. 56, 59, 685 S.E.2d 541, 544 (2009) (quoting Burress v. Burress, 195 N.C. App. 447, 449-50, 672 S.E.2d 732, 734 (2009)).
Defendant argues (1) that the trial court‘s findings of fact were insufficient to support its conclusion that “defendant has committed acts of domestic violence against the plaintiff” and (2) that specific facts do not support its conclusion that “it clearly appears that there is a danger of acts of domestic violence against the plaintiff.” We disagree.
The trial court used pre-printed form AOC-CV-304, Rev. 8/09, entitled “EX PARTE DOMESTIC VIOLENCE ORDER OF PROTECTION” for its order. The form contains 12 pre-printed “Additional Findings.” Before each numbered finding is a box corresponding to the finding as a whole. Some of the pre-printed findings contain subparts with additional boxes to check, blank spaces to fill in, or space to provide additional information.
In this case, the trial court made the following relevant findings of fact by marking the boxes next to certain pre-printed provisions
[_] 2. That on ... 11-01-2010, the defendant
[x] a. [x] intentionally caused bodily injury to [x] the plaintiff . . .
[x] b. placed in fear of imminent serious bodily injury [x] the plaintiff [x] a member of the plaintiff‘s family [x] a member of the plaintiff‘s household
[x] c. placed in fear of continued harassment that rises to such a level as to inflict substantial emotional distress [x] the plaintiff [x] a member of plaintiff‘s family [x] a member of plaintiff‘s household
....
[x] 3. The defendant is in possession of, owns or has access to firearms, ammunition, and gun permits described below. . . .
The Defendant is in possession of hundreds of firearms and approximately 1000 boxes of ammunition which are spread through the marital residence.
[x] 4. The defendant
[x] a. ... [x] threatened to use a deadly weapon against the [x] plaintiff ...
[x] b. has a pattern of prior conduct involving the ... [x] threatened use of violence with a firearm against persons
[x] c. made threats to seriously injure or kill the [x] plaintiff ...
....
[x] e. inflicted serious injuries upon the [x] plaintiff ... in that ... :
Broken [sic] her rib.
(Emphasis added to indicate information added by trial court to form.)
Defendant argues that by failing to mark the first box of Finding 2, which corresponds to Finding 2 as a whole, the trial court did not actually intend to make any of the findings marked under paragraph 2. It is apparent, however, that this omission was merely a clerical error.
” ‘Clerical error’ has been defined . . . as: ‘An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.’ ” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black‘s Law Dictionary 563 (7th ed. 1999)). Clerical errors include mistakes such as inadvertently checking the wrong box on pre-printed forms. See In re D.D.J., D.M.J., 177 N.C. App. 441, 444, 628 S.E.2d 808, 811 (2006).
Finding 2 on Form AOC-CV-304 corresponds to the definition of domestic violence set out in
(a) Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:
(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or
(2) Placing the aggrieved party or a member of the aggrieved party‘s family or household in fear of imminent serious bodily injury or continued harassment, as defined in
G.S. 14-277.3A , that rises to such a level as to inflict substantial emotional distress; or(3) Committing any act defined in
G.S. 14-27.2 throughG.S. 14-27.7 .
The statute thus specifies several alternative ways in which one may commit an act of domestic violence.
The subparts of Finding 2 on Form AOC-CV-304 set out all the possible alternative findings that could support a finding of fact that the defendant committed an act of domestic violence. The form allows the trial court to indicate which alternatives apply by marking the relevant subparts. Thus, by checking the box next to Finding 2, the trial court indicates an ultimate finding of fact: that defendant committed an act of domestic violence. By marking the boxes next to the subparts of Finding 2, the trial court then provides more specific findings regarding
Here, the trial court provided the “date of most recent conduct” in the first line of Finding 2 and marked the subparts indicating what acts the defendant committed and against whom. Additionally, the trial court concluded as a matter of law that the defendant committed acts of domestic violence against the plaintiff. Under these circumstances, it is apparent that the trial court intended to mark the box next to Finding 2 and that its failure to do so was inadvertent and merely a clerical error. The error should, however, be corrected on remand. See State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (“When, on appeal, a clerical error is discovered in the trial court‘s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record ‘speak the truth.’ ” (quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999))).
Defendant next argues that even if it is presumed that the trial court intended to mark Finding 2, the trial court‘s findings of fact are still insufficient. An ex parte DVPO may be issued “if it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party . . . .”
In Hensey, the ex parte DVPO, which also was a pre-printed form order, did not itself set forth specific findings of facts in the DVPO, but rather appeared to incorporate by reference the allegations of the complaint. Id. at 62, 685 S.E.2d at 546. This Court concluded that “while it would be preferable for the trial court to set forth the ‘specific facts’ which support its order separately, instead of by reference to the complaint, the ex parte DVPO, read in conjunction with plaintiff‘s complaint, does provide sufficient information upon which we may review the trial court‘s decision to issue the ex parte DVPO.” Id. at 64, 685 S.E.2d at 547.
In reaching its conclusion, the Court in Hensey rejected the defendant‘s argument that the ex parte DVPO must comply with Rule 52 of the Rules of Civil Procedure, which requires that a trial court sitting without a jury shall “find the facts specially.” Id. at 62-63, 685 S.E.2d at 546-47. The Court concluded that ex parte orders under
Here, in the space provided under Finding 2, the DVPO neither includes specific facts nor references the allegations of the complaint, although Finding 2 does specify the date of the most recent conduct by defendant. In addition, however, Finding 4 finds that defendant had threatened to use a deadly weapon against plaintiff, had a pattern of prior conduct involving the threatened use of violence with a firearm, had made threats to seriously injure the plaintiff, and had inflicted serious injuries on plaintiff by breaking her rib. While defendant argues that Finding 4 does not indicate whether defendant intentionally broke plaintiff‘s rib, that finding is included in Finding 2.
We hold that the combination of Finding 2 and Finding 4 are minimally adequate to supply the required “specific facts” necessary to support the conclusion that the defendant committed acts of domestic violence against the plaintiff and that “there is a danger of acts of domestic violence against the plaintiff.” We, therefore, affirm the ex parte DVPO. We note, however, that the better practice would be to include more specific facts under Finding 2 explaining the basis for
II
[2] Defendant next contends that the trial court erred by entering the September 2012 DVPO when the ex parte DVPO had expired after being in effect for more than a year. We agree.
In this case, the ex parte DVPO continued in effect for more than 18 months until it expired on 4 June 2012. We question whether the General Assembly intended for an ex parte DVPO to continue in effect for this length of time based on repeated continuances—in this case, a total of 13. See
The North Carolina Domestic Violence Act, set out in Chapter 50B of the General Statutes, specifies the procedural framework for the issuance of DVPOs. The statute defines a “protective order” as “any order entered pursuant to this Chapter upon hearing by the court or consent of the parties.”
As noted in Hensey, an ex parte DVPO “is intended to be entered on relatively short notice in order to address a situation in which quick action is needed in order to avert a threat of imminent harm.” Hensey, 201 N.C. App. at 63, 685 S.E.2d at 547. In contrast, the one-year DVPO is entered only after notice to the defendant and an opportunity to participate in a full adversarial hearing. Id. at 61, 685 S.E.2d at 545. It is intended to address issues for a longer time period, although normally not more than three years, with temporary custody provisions limited to one year. See
Unfortunately, Chapter 50B does not clearly distinguish between some of the characteristics of an ex parte order and a DVPO entered after notice to the defendant and an opportunity for a full adversarial hearing. However, reading the entire Chapter in context, it is apparent that
Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year. The court may renew a protective order for a fixed period of time not to exceed two years, including an order that previously has been renewed, upon a motion by the aggrieved party filed before the expiration of the current order; provided, however, that a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one-year period. The court may renew a protective order for good cause. The commission of an act as defined in
G.S. 50B-1(a) by the defendant after entry of the current order is not required for an order to be renewed.
In this case, we are addressing the plaintiff‘s request for the trial court to enter a one-year DVPO based upon an ex parte DVPO that had already remained in effect for more than a year based upon continuances of the hearing. Even if we assume, without deciding, that an ex parte DVPO may lawfully continue for more than a year through the mechanism of repeated continuances, in this case, the ex parte DVPO ultimately expired on 4 June 2012 when no order was entered continuing the ex parte DVPO in effect after that date.
We also note that
The DVPO at issue here is clearly and exclusively based upon an act that occurred prior to the expiration of the ex parte order. The orders continuing the hearing on the ex parte order, including the one that set the matter for 4 June 2012, had scheduled the case “for hearing for emergency relief pursuant to
Applying
We note that this situation is distinguished from a case in which a plaintiff files a civil action or motion seeking a DVPO, but either because the plaintiff did not request an immediate ex parte order or because the trial court declined to issue an immediate ex parte order, the trial court has not entered an ex parte order and has scheduled a hearing upon the complaint or motion to consider
A party may move the court for emergency relief if he or she believes there is a danger of serious and immediate injury to himself or herself or a minor child. A hearing on a motion for emergency relief, where no ex parte order is entered, shall be held after five days’ notice of the hearing to the other party or after five days from the date of service of process on the other party, whichever occurs first, provided, however, that no hearing shall be required if the service of process is not completed on the other party. If the party is proceeding pro se and does not request an ex parte hearing, the clerk shall set a date for hearing and issue a notice of hearing within the time periods provided in this subsection, and shall effect service of the summons, complaint, notice, and other papers through the appropriate law enforcement agency where the defendant is to be served.
In fact, Form AOC-CV-305, Rev. 6/2000 has pre-printed language to provide notice of a hearing to the defendant in just that situation:
2. A hearing will be held before a district court judge at the date, time and location indicated below. At that hearing it will be determined whether emergency relief in protecting the plaintiff and the plaintiff‘s child(ren) should be granted.
This option was not checked in this case since an ex parte order was entered, and the first option, as noted above, was checked instead.
This case also does not present the issue whether a hearing upon a domestic violence complaint or motion, when no ex parte order was entered, could be continued repeatedly, even for more than a year, and we do not address that situation. In the case before us, plaintiff and the trial court proceeded as directed by the ex parte order issued under
Because the trial court, in this case, lacked authority to enter the September 2012 order after the ex parte DVPO expired more than 18 months after its original entry, we vacate the September 2012 DVPO and remand for a hearing on defendant‘s motion for return of firearms. Because of our disposition of this appeal, we need not address defendant‘s remaining arguments regarding the September 2012 DVPO.
Affirmed in part, vacated in part, and remanded in part.
Chief Judge MARTIN and Judge STROUD concur.