Opinion
No. COA10-1230
Filed 2 August 2011 This case not for publication
Appeal by defendant from order entered 2 June 2010 by Judge J. Gary Dellinger in Caldwell County District Court. Heard in the Court of Appeals 6 June 2011.
No brief filed by plaintiff. Bradley Earl Howe, pro se, for defendant-appellant.
Caldwell County No. 10 CVD 710.
Defendant, Bradley Earl Howe, and plaintiff, Correna C. Howe, separated on 11 May 2009. They have a daughter together, D.H., who was two years old at the time plaintiff filed a Complaint and Motion for Domestic Violence Protective Order in this action. The record indicates that a custody order provides defendant scheduled visitation with D.H. and other visitation to which the parties agree.
We refer to the parties' minor child as "D.H." throughout this opinion.
Between Saturday, 8 May 2010 and Sunday, 9 May 2010, plaintiff and defendant exchanged several e-mail messages regarding visitation with D.H. that week, but were unable to agree on a schedule. On Tuesday morning, at 6:45 a.m., defendant went to plaintiff's residence to get D.H. Plaintiff informed defendant that D.H. was going to daycare. Defendant stood on the porch and began knocking again. Plaintiff yelled through the door that D.H. was going to daycare. Defendant then went to the parking area and began taking photographs of plaintiff's car. Plaintiff told defendant to get off her property. Defendant moved his van across the street, but stood in the road near plaintiff's driveway and began recording plaintiff and D.H. with his video camera. Plaintiff had called the police before going out to her car, but when she realized she was running late, she called the police again and said she was leaving the residence. When plaintiff arrived at the daycare center, defendant was there. Plaintiff testified that, because she did not want to "cause a scene," she allowed him to take D.H.
That afternoon, plaintiff filed a Complaint and Motion for Domestic Violence Protective Order against defendant in Caldwell County District Court. The matter was scheduled to be heard on 19 May 2010 for emergency relief under N.C.G.S. § 50B-2. Defendant requested and was granted a continuance. Defendant then filed an "Answer and Counter Complaint" on 1 June 2010. Following a hearing on 2 June 2010, the trial court found that defendant had placed plaintiff in fear of imminent serious bodily injury and in fear of continued harassment that rises to such a level as to inflict substantial emotional distress and entered a domestic violence protective order.
Although the order from which defendant appeals was "effective until June 2, 2011" and therefore expired just before defendant's appeal was heard in this Court, an expired domestic violence protective order should not be dismissed as moot. See Smith ex rel. Smith v. Smith, 145 N.C. App. 434, 436-37, 549 S.E.2d 912, 914 (2001).
On appeal, defendant first argues that the trial court's finding that defendant placed plaintiff in fear of imminent serious bodily injury is unsupported by the evidence. We disagree.
N.C.G.S. § 50B-1 defines domestic violence as
(a) . . . 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 through G.S. 14-27.7.
N.C. Gen. Stat. § 50B-1(a) (2009) (emphasis added). "The plain language of section 50B-1(a)(2) imposes only a subjective test, rather than an objective reasonableness test, to determine whether an act of domestic violence has occurred." Brandon v. Brandon, 132 N.C. App. 646, 654, 513 S.E.2d 589, 595 (1999). Thus, "[t]he plain language used by our legislature does not require a trial court to attempt to determine whether the plaintiff's actual subjective fear is objectively reasonable under the circumstances." Id. at 655, 513 S.E.2d at 595. "Accordingly, where the trial court finds that a plaintiff is actually subjectively in fear of imminent serious bodily injury, an act of domestic violence has occurred pursuant to section 50B-1(a)(2)." Id. at 654-55, 513 S.E.2d at 595.
The trial court made the following findings on the Domestic Violence Order of Protection form:
On May 11, 10, the defendant placed [the plaintiff] in fear of imminent serious bodily injury [and] placed [the plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress.
Below these findings, the trial court wrote "defendant would not leave when plaintiff told him to leave her property. Paragraph #4 of Complaint is hereby incorporated by reference."
"[W]hen the trial court sits without a jury, the standard of review on appeal is 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." Burress v. Burress, 195 N.C. App. 447, 449, 672 S.E.2d 732, 734 (2009) (alteration in original) (internal quotation marks omitted). "Where the trial court sits as the finder of fact, and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial [court]." Brandon, 132 N.C. App. at 651, 513 S.E.2d at 593 (alterations in original) (internal quotation marks and citations omitted).
[This Court] can only read the record and, of course, the written word must stand on its own. But the trial judge is present for the full sensual effect of the spoken word, with the nuances of meaning revealed in pitch, mimicry and gestures, appearances and postures, shrillness and stridency, calmness and composure, all of which add to or detract from the force of spoken words. The trial court's findings turn in large part on the credibility of the witnesses, [and] must be given great deference by this Court.
Id. at 651-52, 513 S.E.2d at 593 (alterations in original) (citations omitted).
Defendant contends there is no evidence to support the trial court's finding that he placed plaintiff in fear of imminent serious bodily injury. After thoroughly reviewing the transcript from the hearing on this matter, we disagree.
During the hearing, when defendant referenced plaintiff's statement in her Complaint and Motion for Domestic Violence Protective Order that she was in fear of imminent bodily injury, plaintiff responded, "Yes I am, yes I am." When defendant asked her why, she replied, "[Y]ou keep filing all these actions against me"; you are "not getting your way"; and, "I know it[']s just a matter of time before you do something because you're not getting your way." We recognize that the trial court was present to see and hear plaintiff's testimony and that we are forced to review a cold record. See id. at 652, 513 S.E.2d at 594. Because the trial court's findings "turn in large part on the credibility of the witnesses" and "must be given great deference by this Court," we hold that plaintiff's testimony supports the trial court's finding on this point. See id. at 652, 513 S.E.2d at 593; see also Mitchell v. Mitchell, 199 N.C. App. 392, 407, 681 S.E.2d 520, 530 (2009) (noting that, in reviewing the trial court's modification of a child custody order where the trial court's findings are binding if supported by substantial evidence, "the trial court could have relied only upon plaintiff's testimony if it deemed his testimony of sufficient credibility and weight").
Because plaintiff's testimony supports the trial court's finding that plaintiff feared imminent serious bodily injury and this finding in turn supports the trial court's conclusion that "defendant has committed acts of domestic violence against plaintiff" and the trial court's entry of a domestic violence protective order, it is unnecessary to reach defendant's argument that the trial court's finding that defendant placed plaintiff in fear of continued harassment that rises to such a level as to inflict substantial emotional distress is unsupported by the evidence. Because we affirm the trial court's entry of a domestic violence protective order, we also do not address defendant's assertion that, "[b]y erroneously concluding that the Defendant committed acts of domestic violence upon the Plaintiff, the courts [sic] order denying the Defendants [sic] counterclaim is err [sic]."
Next, defendant contends the trial court erred by entering a domestic violence protective order because it had intended to enter a no contact order. Defendant points out that the trial court referred to this action as a "no contact proceeding" several times during the hearing. However, the trial court's entry of a domestic violence protective order containing findings and the conclusion that defendant "committed acts of domestic violence against the plaintiff" pursuant to N.C.G.S. § 50B-1 makes it clear that the trial court intended to enter a domestic violence protective order. Defendant's argument is overruled.
Defendant also contends the trial court "committed reversible error by denying [his] request for [a] recess to procure video playback equipment." A motion for a recess is addressed to the sound discretion of the trial court and its ruling thereon is not subject to review on appeal except in a case of manifest abuse. See State v. Hailstock, 15 N.C. App. 556, 559, 190 S.E.2d 376, 378, cert. denied, 281 N.C. 760, 191 S.E.2d 363 (1972). During the hearing, the trial court allowed defendant the opportunity to play the video he had recorded on 11 May 2010, but informed him it would not "set up the courtroom for either parties [sic] evidence" and stated, "[I]f you want to present evidence it's up to you to present evidence." The trial court denied defendant's request for a recess so that he could get equipment to play the video. Because defendant had ample time before the hearing to obtain the necessary equipment to play the video he wished to offer as evidence and apparently failed to do so, we find no merit to defendant's assertion that the trial court abused its discretion by denying his request for a recess.
Finally, defendant argues, and we agree, that the trial court erred by ordering that he surrender his firearms without entering findings in accordance with N.C.G.S. § 50B-3.1(a). We therefore reverse this portion of the trial court's order.
Initially, we again note that the trial court's order is inoperative because it expired on 2 June 2011. However, N.C.G.S. § 50B-3.1(f) provides that a defendant who has surrendered firearms must file a motion requesting the return of the surrendered firearms at the expiration of the domestic violence protective order. N.C. Gen. Stat. § 50B-3.1(f) (2009). After the filing of the motion, the trial court must schedule a hearing and determine whether the defendant "is subject to any State or federal law or court order that precludes the defendant from owning or possessing a firearm." Id. Because it is unclear in this case whether defendant has recovered his firearms, we cannot dismiss this issue as moot. See Gainey v. Gainey, 194 N.C. App. 186, 187 n. 1, 669 S.E.2d 22, 23 n. 1 (2008) ("[B]ecause the sheriff continues to hold the firearms, defendant's death does not moot the issue raised in this appeal.").
N.C.G.S. § 50B-3.1(a) provides that,
[u]pon issuance of an emergency or ex parte order pursuant to this Chapter, the court shall order the defendant to surrender to the sheriff all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant if the court finds any of the following factors:
(1) The use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons.
(2) Threats to seriously injure or kill the aggrieved party or minor child by the defendant.
(3) Threats to commit suicide by the defendant.
(4) Serious injuries inflicted upon the aggrieved party or minor child by the defendant.
N.C. Gen. Stat. § 50B-3.1(a) (2009).
In its order, the trial court checked the box indicating defendant "is in possession of, owns or has access to firearms, ammunition, and gun permits described below" and below that, wrote "(2) two rifles, (1) one shotgun, and (3) three handguns." However, the trial court failed to check any of the boxes on the AOC form related to the factors in N.C.G.S. § 50B-3.1(a). Because N.C.G.S. § 50B-3.1(a) provides that "the court shall order the defendant to surrender to the sheriff all firearms . . . if the court finds any of the following factors. . . .," N.C. Gen. Stat. § 50B-3.1(a) (emphasis added), and the trial court failed to find any of those factors, it erred by ordering that defendant surrender his firearms. Although "this matter could be remanded for the entry of a new order containing findings and conclusions," see Price v. Price, 133 N.C. App. 440, 442, 514 S.E.2d 553, 554 (1999), the record contains no evidence that defendant made any of the threats described in N.C.G.S. § 50B-3.1(a) factors one, two, and three or that defendant inflicted serious injuries on plaintiff or a minor child as described in factor four. In fact, plaintiff testified that defendant had never threatened her in the past. Because the evidence in this case fails to support a finding that defendant engaged in any of the acts described in the factors of N.C.G.S. § 50B-3.1(a), remand in this case would be futile. See id. Therefore, the portion of the trial court's order requiring that defendant surrender his firearms is reversed.
Affirmed in part, reversed in part.
Judges STEPHENS and THIGPEN concur.
Report per Rule 30(e).