Opinion
No. COA16-413
11-01-2016
LUCIANA HARTFORD, Plaintiff, v. RON P. HARTFORD, Defendant.
No brief filed on behalf of Plaintiff-Appellee. Van Camp, Meacham, & Newman, PLLC, by Whitney Shea Phillips Foushee, for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Moore County, No. 15 CVD 1404 Appeal by defendant from order entered 9 November 2015 by Judge Stephen A. Bibey in Moore County District Court. Heard in the Court of Appeals 5 October 2016. No brief filed on behalf of Plaintiff-Appellee. Van Camp, Meacham, & Newman, PLLC, by Whitney Shea Phillips Foushee, for Defendant-Appellant. ENOCHS, Judge.
Defendant, Ron P. Hartford ("Defendant"), appeals from a domestic violence order of protection entered on 9 November 2015 finding that he had committed acts of domestic violence against Luciana Hartford ("Plaintiff"). Because the acts committed by Defendant were not sufficient for the trial court to find that he had committed domestic violence against Plaintiff, we must reverse the order of the trial court and vacate the domestic violence order of protection.
Factual Background
Plaintiff and Defendant were married on 29 November 2010 and separated on 5 December 2014. Pursuant to a consent order signed by both parties and entered on 4 March 2015, the parties resolved all claims for equitable distribution of their marital, divisible, and separate assets, and agreed to file for absolute divorce within 30 days of 7 December 2015. The parties further agreed that Defendant "shall not visit, assault, molest or otherwise interfere with [Plaintiff], shall cease stalking or harassing [her], shall not abuse or injure [her] nor contact [her] by telephone, written communication or electronic means."
At the time that the consent order was signed, Plaintiff was working at one BB&T branch office, and Defendant conducted his banking business at another BB&T branch office near his home. However, at some point prior to 30 October 2015, Plaintiff was transferred to the branch office at which Defendant banked, and Defendant had knowledge of this transfer.
On 30 October 2015, Defendant went to the drive-through service window at his bank and saw that Plaintiff was working as a teller for his window. When Plaintiff saw that Defendant was approaching her window, she left her position and had another teller take her place. Defendant made his deposit with the new teller.
On 2 November 2015, Defendant returned to the same branch office, but went inside the bank to conduct his business. Plaintiff saw him, and again asked another teller to handle his transaction and walked away. Neither time that Plaintiff and Defendant saw each other did Defendant attempt to speak with Plaintiff. After the second incident, Defendant closed his account with BB&T and transferred it to Wells Fargo. Plaintiff was also transferred to another branch office of BB&T.
Plaintiff filed a verified complaint and motion seeking a Domestic Violence Order of Protection against Defendant on 4 November 2015. Defendant filed a responsive answer and motion to dismiss on 6 November 2015. The matters were heard in Moore County District Court on 9 November 2015, at which point the trial court denied Defendant's motion to dismiss and entered a domestic violence order of protection that would remain in effect for one year.
In its order, the trial court found that "[o]n 10/30; 11/2, the defendant . . . placed [the plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress." The court made no other written findings to justify the issuance of the order. However, at the conclusion of the 9 November 2015 hearing, the trial court gave oral findings. In speaking about the 4 March 2015 consent order, the trial court said, "I think you have willfully violated the condition of that order. That does rise to a level of cause of her substantial emotional distress - the fact that you did come to her work - place of work; and that therefore, I am ordering that you have committed acts of domestic violence against this plaintiff." It is from this order that Defendant timely appeals.
Analysis
N.C. Gen. Stat. § 50B-3(a) (2015) provides that if a trial court "finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence." Domestic violence is defined, in pertinent part, as "the commission of one or more of the following acts upon an aggrieved party . . . by a person with whom the aggrieved party has or has had a personal relationship . . . : (2) Placing the aggrieved party . . . 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 . . . ." N.C. Gen. Stat. § 50B-1(a)(2) (2015). Continued harassment is defined as "[k]nowing conduct, . . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose." N.C. Gen. Stat. § 14-277.3A(b)(2) (2015).
" '[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) (quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). "Where there is competent evidence to support the trial court's findings of fact, those findings are binding on appeal." Id. at 449-50, 672 S.E.2d at 734. Its conclusions of law, however, are reviewed de novo. In re F.C.D., ___ N.C. App. ___, ___, 780 S.E.2d 214, 217 (2015).
Defendant argues that the trial court erred in finding that there was competent evidence to support a finding of fact that defendant placed plaintiff in fear of continued harassment that rises to such a level as to inflict substantial emotional distress. He further argues that Plaintiff failed to prove that his conduct was directed at her, that it tormented, terrorized, or terrified her, or that it served no legitimate purpose. We agree.
The evidence presented in this case showed that Plaintiff was transferred by her employer to work at the bank where Defendant routinely conducted business, and that Defendant went to the bank for routine business when he encountered Plaintiff. It also showed that after running into Plaintiff at his bank, Defendant transferred his account from BB&T to Wells Fargo. The fact that Defendant was at BB&T to conduct his banking business supports a finding that he was there for a legitimate purpose and Plaintiff presented no evidence to the contrary. These facts do not support a finding that Defendant's actions placed Plaintiff in fear of continued harassment. The court based its finding as to the cause of Plaintiff's emotional distress on Defendant's violation of their prior consent order, entered when Plaintiff's work location was not at Defendant's regular banking branch. A domestic violence order of protection is not the mechanism by which a consent order is to be enforced.
Our Supreme Court, in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), addressed the treatment of separation agreements, and not a consent order, as is involved in the instant case. However, "the Court clearly stated, '[C]ourt ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.'" Ross v. Voiers, 127 N.C. App. 415, 417-18, 490 S.E.2d 244, 246 (1997) (emphasis added) (quoting Walters, 307 N.C. at 386, 298 S.E.2d at 342). The proper enforcement mechanism for Plaintiff's and Defendant's consent order was for Plaintiff to file a motion for civil contempt with the court, not to seek a domestic violence order of protection.
Conclusion
Because the actions of Defendant did not rise to the level of continued harassment such that they inflicted substantial emotional distress on Plaintiff, and because a domestic violence order of protection is not the mechanism by which a consent order is enforced, the domestic violence order of protection in this case is reversed.
REVERSED.
Judges DAVIS and INMAN concur.
Report per Rule 30(e).