Opinion
No. COA12–403.
2013-02-19
David Ryan JUDSON, Plaintiff v. Jennifer Lynn WEISS, Defendant.
Casstevens, Hanner, Gunter, Riopel & Wofford, P.A., by Dorian H. Gunter, for Plaintiff. Krusch & Sellers, P.A., by Rebecca K. Watts, for Defendant.
Appeal by defendant from order entered 14 November 2011 by Judge Sean Smith in Mecklenburg County District Court. Heard in the Court of Appeals 13 November 2012. Casstevens, Hanner, Gunter, Riopel & Wofford, P.A., by Dorian H. Gunter, for Plaintiff. Krusch & Sellers, P.A., by Rebecca K. Watts, for Defendant.
ERVIN, Judge.
Defendant Jennifer Lynn Weiss appeals from a domestic violence protective order entered against her stemming from alleged acts of domestic violence committed against her former boyfriend, Plaintiff David Ryan Judson. On appeal, Defendant argues that the record evidence did not support the trial court's determination that she had acted in such a manner as to place Plaintiff in fear of imminent bodily harm or in fear of continued harassment that sufficed to cause Plaintiff to suffer substantial emotional distress. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
A. Substantive Facts
1. Plaintiff's Evidence
After Plaintiff and Defendant began a romantic relationship, Defendant moved into Plaintiff's apartment and lived with him between March and August of 2011. At some point during the course of their relationship, Defendant became pregnant with Plaintiff's child. Their relationship eventually deteriorated and became “very toxic.” Although Plaintiff requested that Defendant move out, Defendant refused. At that point, Plaintiff initiated an ejectment action against Defendant; however, he stopped short of evicting her because he did not want such an episode to appear on her “record.” Subsequently, Plaintiff assisted Defendant in finding a place to live and paid approximately $4,000 to help her pay a month and a half's rent and a security deposit.
The parties continued to engage in sexual relations and to communicate on a regular basis until October 2011. During that time, their communications included discussions about birthing classes and Defendant's suspicion that Plaintiff was using cocaine. On 22 October 2011, however, regular communication between the parties came to an end.
A test that Plaintiff took for the presence of cocaine and other illegal substances produced negative results.
At around 2:30 a.m. on 23 October 2011, Plaintiff arrived home after being dropped off by a female friend and found Defendant waiting outside his residence. When Plaintiff got out of the car, Defendant “laid” on the horn and began screaming at Plaintiff and his friend. As a result, Plaintiff called a cab and went to stay with a friend because he “didn't feel comfortable staying [home] knowing that she had sat outside [his] place until two thirty in the morning.” Plaintiff refrained from spending the night at his home for a two week period because Defendant would sit outside his residence and look into his windows, a series of events which caused him to feel unsafe.
At 5:30 a.m. on 23 October 2011, Defendant began texting Plaintiff's sister and calling his family, telling them that Plaintiff was a horrible person, was using drugs, and needed help. Although Plaintiff sent Defendant an e-mail on 24 October 2011 in which he requested that she stop harassing him and that she refrain from contacting his family and friends, that request was not honored. Instead, Defendant continued to text and call Plaintiff “virtually non-stop.”
On 28 October 2011, Defendant appeared at Plaintiff's place of employment and chased him inside the building in which his office was located. Instead of remaining there, Plaintiff left the building by the back door. After failing to speak with Plaintiff and being ordered to leave the premises, Defendant told Plaintiff that she would contact his Human Resources Department unless he sought help for what she perceived as his drug problem. On the same day, Plaintiff retained counsel, who e-mailed Defendant for the purpose of instructing her to cease contacting Plaintiff and warning her that her actions could result in adverse legal consequences. Unfortunately, this warning went unheeded. Instead, Defendant continued to call and send text messages to Plaintiff and to copy him on e-mails that she sent to members of his family.
On 1 November 2011, Plaintiff observed Defendant circling the parking lot outside his office and driving down each row of parked cars in an apparent attempt to locate Plaintiff's vehicle. As a result, Plaintiff began driving a family member's car to work. Although Plaintiff's father sent an e-mail to Defendant asking that she cease her efforts to contact him, Defendant copied Plaintiff on her response to this e-mail and both sent text messages to and attempted to call Plaintiff twice on 7 November 2011.
On 8 November 2011, which was the day after Defendant had been served with Plaintiff's request for the entry of a domestic violence order of protection, Plaintiff returned home to find dog feces on the handle of the door to his residence. Plaintiff testified that he was “alarmed” by the fact that Defendant owned a firearm given that Defendant had threatened to kill herself when she and Plaintiff were still living together.
2. Defendant's Evidence
According to Defendant, the parties' relationship began to deteriorate on 16 October 2011 because she believed that she had seen Plaintiff use cocaine on that date after he failed to accompany her to pick up a crib for their baby. Even so, Plaintiff and Defendant went to birthing classes and dined together during the subsequent week.
On 22 October 2011, Defendant became concerned about Plaintiff and wanted to discuss some text messages that she had sent him earlier that day. As a result, she waited outside his home until he arrived with another woman at approximately 2:30 a.m. Although Plaintiff asked Defendant not to communicate with him again after that night, Defendant continued to send Plaintiff text messages from 22 October 2011 through 28 October 2011 to let him know that she would like to speak with him, to tell him that she was in the hospital, and to encourage him to seek drug treatment.
After Plaintiff failed to respond to these communications, Defendant went to Plaintiff's place of employment in order to talk with him. Defendant ceased making any effort to communicate with Plaintiff on 2 November 2011, which was prior to the date upon which she was served with Plaintiff's request for the entry of a domestic violence protective order. Defendant denied having seriously threatened to kill herself and claimed instead that she had indicated that she would kill herself rather than accede to Plaintiff's request that she have an abortion as a way of informing Plaintiff that she would protect her child's life with her own.
B. Procedural History
On 1 November 2011, Plaintiff filed a complaint seeking the entry of a domestic violence protective order against Defendant pursuant to N.C. Gen.Stat. § 50B–1. On 7 November 2011, the trial court entered an ex parte domestic violence protective order and scheduled a hearing on Plaintiff's motion on 14 November 2011 for the purpose of providing both parties with an opportunity to be heard. At the conclusion of the 14 November 2011 hearing, the trial court determined that Defendant had committed acts of domestic violence against Plaintiff and entered an order prohibiting Defendant from directly contacting Plaintiff for one year, requiring Defendant to surrender any firearms in her possession, and providing that all communications between the parties relating to their child be conducted through Plaintiff's stepmother or attorney. Defendant noted an appeal to this Court from the trial court's order.
II. Legal Analysis
In her brief, Defendant argues that the trial court erred by determining that she placed Plaintiff in fear of “imminent serious bodily injury” and “placed [Plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress” and concluding that Defendant had “committed acts of domestic violence against” Plaintiff and that Plaintiff was in “danger of serious and immediate injury” on the grounds that the record did not support these determinations. We do not find Defendant's arguments persuasive.
A careful examination of Defendant's brief reveals that all of her challenges to the trial court's order revolve around allegations that the record did not support various determinations made by the trial court. As a result, this opinion will focus exclusively upon the sufficiency of the evidence to support the relief which the trial court decided to award rather than upon the sufficiency of the findings that the trial court made in support of its decision.
In his brief, Plaintiff implicitly urges us to refrain from considering Defendant's challenges to the trial court's findings of fact and conclusions of law on the grounds that Defendant failed to comply with the requirement that an appellant seeking to argue “that a finding or conclusion of the trial court is unsupported by the evidence” “cite in the record on appeal the volume number, page number, and line number of all evidence relevant to such finding or conclusion.” N.C.R.App. P. 7(a)(1). Assuming, without deciding, that Defendant failed to adequately comply with N.C.R.App. P. 7(a)(1), we are unable to conclude that any such omission on Defendant's part has materially impaired our ability to evaluate the merits of Defendant's challenges to the trial court's order or that a review of Defendant's contentions on the merits would “frustrate the adversarial process.” Dogwood Dev. & Mgmt. Co. v. White Oak Transport Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008). Although we urge Defendant's counsel to carefully comply with all relevant provisions of the North Carolina Rules of Appellate Procedure in the future, we see no justification for refusing to consider the claims advanced on Defendant's behalf on the merits in this case.
A. Standard of Review
According to well-established North Carolina law, “when 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.” Shear v. Stevens Bldg. Co., 107 N.C.App. 154, 160, 418 S.E.2d 841, 845 (1992). In the event that “ ‘different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial [court],’ “ since “ ‘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.’ “ Brandon v. Brandon, 132 N.C.App. 646, 651–52, 513 S.E.2d 589, 593 (1999) (quoting Elec. Motor & Repair Co. v. Morris & Associates, Inc., 2 N.C.App. 72, 75, 162 S.E.2d 611, 613 (1968), and State v. Sessoms, 119 N.C.App. 1, 6, 458 S.E.2d 200, 203 (1995), aff'd,342 N.C. 892, 467 S.E.2d 243,cert. denied,519 U.S. 873, 117 S.Ct. 191, 136 L.Ed.2d 129 (1996)) (alteration in original). We will now utilize the applicable standard of review in evaluating Defendant's challenges to the trial court's order.
B. Legal Principles Applicable in Domestic Violence Cases
According to N.C. Gen.Stat. § 50B–3(a), a trial court should “grant a protective order restraining the defendant from further acts of domestic violence” upon “find[ing] that an act of domestic violence has occurred.” Acts of domestic violence include conduct placing a plaintiff “in fear of imminent serious bodily injury” or of “continued harassment, as defined in [N.C. Gen.Stat. § ] 14–277.3A,” that “rises to such a level as to inflict substantial emotional distress.” N.C. Gen.Stat. § 50B–1(a)(2). As a result, in the event that the trial court properly found that Defendant placed Plaintiff either “in fear of imminent serious bodily injury” or “continued harassment,” as defined in N.C. Gen.Stat. § 14–277.3A, “that rises to such level as to inflict substantial emotional distress,” it must afford appropriate relief to Plaintiff.
C. Harassment Inflicting Substantial Emotional Distress
Defendant also contends that the trial court erroneously determined that she had placed Plaintiff in fear of “continued harassment” that rose to the level of “inflict[ing] substantial emotional distress” on the grounds that Defendant did not “torment, terrorize, or terrify Plaintiff,” that she had a legitimate purpose for contacting Plaintiff, that there was no evidence that Defendant's alleged harassment would continue, and that Defendant's conduct did not “inflict substantial emotional distress” upon Plaintiff. We do not find these arguments persuasive.
1. Tormenting, Terrorizing, or Terrifying Conduct
As an initial matter, Defendant argues that the trial court erred by determining that her conduct had the effect of tormenting, terrorizing, or terrifying Plaintiff. More specifically, Defendant argues that Plaintiff's description of the manner in which Defendant's conduct affected him did not rise to the level necessary to support a determination that she had engaged in an act of domestic violence. We disagree.
According to N.C. Gen.Stat. § 50B–1(a)(2), the definition of harassment found in N.C. Gen.Stat. § 14–277.3A must be utilized in determining whether an act of domestic violence occurred. According to N.C. Gen.Stat. § 14–277.3A(b)(2), “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.” In view of the fact that the General Assembly did not define the terms “torment,” “terrorize,” or “terrify” as used in N.C. Gen.Stat. § 14–277.3A(b)(2), we must look to the meaning ordinarily accorded those words in the English language. State v. Watson, 169 N.C.App. 331, 337, 610 S.E.2d 472, 477 (2005) (stating that, “in construing a statute, undefined words should be given their plain meaning”). Generally speaking, the word “torment” means “to annoy, harass, or tease,” Webster's New World College Dictionary 1511 (4th ed.2006); see also Watson, 169 N.C.App. at 337, 610 S.E.2d at 477 (defining “torment” as “[t]o annoy, pester, or harass”) (alteration in original); the word “terrorize” means “to fill with terror; terrify,” Id. at 1479, 610 S.E.2d 472; and the word “terrify” means “to fill with terror; frighten greatly; alarm.” Id. at 1479, 610 S.E.2d 472.
According to Plaintiff's evidence, Defendant waited outside Plaintiff's house for him to return; began blowing the horn and yelling at him when Plaintiff returned home with a female friend in the early morning hours; would appear outside Plaintiff's residence and look in the windows while Plaintiff was there; continued to call and send text messages to Plaintiff on both his work and cellular phones after Plaintiff asked Defendant to cease communicating with him; chased Plaintiff into his work place and threatened to contact his Human Resources Manager; and circled the parking lot at Plaintiff's place of employment in an apparent effort to locate his car. As a result of Defendant's conduct, Plaintiff was unable to remain at his residence and had to drive a family member's car to work in order to prevent Defendant from discovering that he was in his office. Defendant never denied having engaged in any of this conduct. Instead, when asked if she went to Plaintiff's workplace after being specifically told not to contact him, she admitted having done so and claimed that the conduct upon which Plaintiff's complaint was based amounted to “simply asking him to talk to me.” Although Defendant argues that Plaintiff's testimony that Defendant's conduct made him “uncomfortable” and caused him to fear for his safety did not support a finding that she had engaged in “harassment,” we hold that the record contained sufficient evidence to permit the trial court to infer that Plaintiff found Defendant's conduct to be exceedingly annoying and sufficiently frightening to cause him to avoid his residence and to obscure the fact that he had arrived at his office out of concern for his own safety. St. John v. Brantley, ––– N.C.App. ––––, ––––, 720 S.E.2d 754, 758 (2011) (holding, in the context of a proceeding conducted pursuant to N.C. Gen.Stat. § 50C–1, that a pattern of witness intimidation constituted “ ‘knowing conduct’ [that] was directed at [the plaintiff] and terrorized her”), certiorari denied,––– N.C. ––––, 731 S.E.2d 153 (2012). As a result, the trial court did not err by determining that Defendant's conduct tormented, terrorized, or terrified Plaintiff.
2. Lack of Legitimate Purpose
Secondly, Defendant contends that the trial court erroneously determined that she harassed Plaintiff on the grounds that she had attempted to contact Plaintiff for legitimate reasons. More specifically, Defendant contends that she attempted to contact Plaintiff because she was concerned about his well-being, because she wanted to update Plaintiff on the facts of her pregnancy, and because she wanted to get general updates about his life. Although the record certainly contains evidence of conduct that would support a determination that Defendant acted for the legitimate purposes that she specifies, see, e.g., Kennedy v. Morgan, ––– N.C.App. ––––, ––––, 726 S.E.2d 193, 197 (2012) (holding that properly conducted professional surveillance done for the purpose of collecting evidence for use in an alimony hearing constituted a legitimate purpose); State v. Ware, 2009 N.C.App. LEXIS 389 *12–14 (2009) (unpublished) (stating that entering a service station in the capacity of a customer does constitute a lawful purpose and suggesting that writing a letter of apology might constitute a “legitimate purpose”), the odd hours at which and the aggressive manner in which Defendant attempted to communicate with Plaintiff and her persistence in attempting to communicate with him after having been requested to refrain from such conduct on multiple occasions provides ample support for the trial court's rejection of Defendant's claim to have acted for a legitimate purpose. As a result, the trial court did not err by failing to determine that Defendant had acted for a legitimate purpose during the time that she allegedly harassed Plaintiff.
3. Fear of Continued Harassment
Thirdly, Defendant contends that, even if her conduct could be considered to be harassment, the trial court erred by determining that Plaintiff was in fear of continued harassment given the absence of any indication that her harassing conduct would persist. In essence, Defendant argues that, since she ceased attempting to contact Plaintiff a considerable number of days prior to the hearing held with respect to Plaintiff's request for the issuance of a domestic violence protective order, there was no basis for believing that she would continue to harass Plaintiff. Once again, we do not believe that Defendant's contention has merit.
Although the record certainly contains evidence tending to show that Defendant's last attempt to contact Plaintiff occurred several days before the hearing on Plaintiff's request for the issuance of a domestic violence protective order, the ultimate issue which we must resolve in order to adequately address Defendant's argument 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.” Shear, 107 N.C.App. at 160, 418 S.E.2d at 845. After carefully reviewing the record, we have no hesitation in holding that the record contained ample evidence tending to show that Plaintiff feared that Defendant would continue to harass him. Aside from the fact that Plaintiff expressly stated that he feared what Defendant might do in the future, the record contains considerable evidence that Defendant continuously contacted Plaintiff by calling his cellular phone, sending text messages to him, and appearing at his home and workplace despite knowing that Plaintiff wished to have no contact with her. Defendant's persistence in attempting to contact Plaintiff provides more than sufficient justification for a determination that Plaintiff feared continued harassment in the event that the trial court failed to enter the requested domestic violence protective order. As a result, the record contains ample support for a finding that Plaintiff feared that Defendant would continue to harass him in the event that he was not provided with the relief that he requested in this proceeding.
4. Substantial Emotional Distress
Finally, Defendant argues that the trial court erred by determining that her communications with Plaintiff caused him to suffer substantial emotion distress. In essence, Defendant contends that the record does not contain sufficient evidence to support a determination that Plaintiff experienced substantial emotional distress given Plaintiff's testimony that Defendant's conduct caused him to feel uncomfortable and unsafe. Once again, we conclude that Defendant's argument is without merit.
The General Assembly has not defined the term “substantial emotional distress” as used in N.C. Gen.Stat. § 50B–1(a)(2). However, the General Assembly did define the same expression to mean “[s]ignificant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling,” N.C. Gen.Stat. § 14–277.3A(b)(4), in the stalking context. See Kennedy, ––– N.C.App. at ––––, 726 S.E.2d at 197. On the other hand, in a case involving a no-contact order issued pursuant to N.C. Gen.Stat. § 50C–1, which also requires proof of “substantial emotional distress” and which, like N.C. Gen.Stat. § 50B–1, fails to include a specific definition of this term, we stated that such “terms must be given their plain meaning” and noted that “ ‘[s]ubstantial’ is defined as ‘considerable in [ ] value, degree, amount or extent’ “ and that “emotional distress” is defined as “ ‘[a] highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person's conduct.’ “ Ramsey v. Smith, 191 N.C.App. 146, 150, 661 S.E.2d 924, 927 (2008) (citing State v. Thompson, 157 N.C.App. 638, 644–45, 580 S.E.2d 9, 13,disc. review denied,357 N.C. 469, 587 S.E.2d 72 (2003), and quoting American Heritage Dictionary 1727 (4th ed.2000) and Black's Law Dictionary 563 (8th ed.2004)) (alterations in original). We believe that the record supports a finding of “substantial emotional distress” under either of these approaches.
At the hearing held in connection with his request for the entry of a domestic violence protective order, Plaintiff testified that Defendant waited until he came home at 2:30 a.m., at which point she yelled at him and blew her horn. In addition, Plaintiff discussed two occasions on which Defendant came to his place of work, with Defendant having chased him inside on the first occasion and having looked for his car in the parking lot on the second. Plaintiff also described Defendant's conduct in lurking outside his house so that he felt unable to go home because of his fear of Defendant. Finally, the record shows that Defendant repeatedly and aggressively contacted Plaintiff and members of his family after being requested not to do so. This evidence provided ample basis for a determination by the trial court that Plaintiff suffered “significant mental suffering or distress” or considerable anguish and fright as the result of Defendant's conduct. Thus, we conclude that the record contains sufficient evidence to support the trial court's determination that Defendant's conduct caused Plaintiff to suffer substantial emotional distress.
In seeking to persuade us to reach a contrary result, Defendant places considerable emphasis upon our recent decision in Kennedy. However, we do not believe that Kennedy supports Defendant's position. After pointing out that “the ‘act’ of hiring a [private investigator] for surveillance, based on the finding of the trial court, is not in and of itself enough to support its finding of ‘substantial emotional distress' “ and that “[t]he only statement within the finding of fact at issue which could possibly indicate ‘substantial emotional distress' on the part of plaintiff is the trial court's description of her as ‘afraid’ and ‘apprehensive,’ “ we stated that “the fact that plaintiff may have been ‘afraid’ or ‘apprehensive’ because of defendant's actions does not necessarily support a determination of domestic violence.” Kennedy, ––– N.C.App. at ––––, 726 S.E.2d at 197 (citing Smith v. Smith, 145 N.C.App. 434, 438, n. 2, 549 S.E.2d 912, 915, n. 2 (2001)). However, aside from the fact that the ultimate holding in Kennedy involved the sufficiency of the trial court's findings of fact to show that “harassment” had occurred, our decision in that case with respect to the “substantial emotional distress” issue amounted to nothing more than a pronouncement that mere fear or apprehension arising from otherwise lawful conduct does not satisfy the showing requirement in an action commenced pursuant to N.C. Gen.Stat. § 50B–1(a)(2). Id.; see also Ramsey, 191 N.C.App. at 151, 661 S.E.2d at 927 (holding, in the context of a proceeding conducted pursuant to N.C. Gen.Stat. § 50C–1, that testimony that the plaintiffs felt “threatened” and “embarrassed” by communications that “did not contain language ‘threatening bodily harm’ or ‘physical injury’ “ did not suffice to show the infliction of “substantial emotional distress”). In this case, however, the record contains evidence tending to show that Plaintiff, who was subjected to conduct that could readily have been construed as threatening, was so fearful of Defendant that he declined to stay at his own home and drove a family member's automobile, rather than his own, to work. Thus, we conclude that Plaintiff's final challenge to the trial court's determination that Defendant committed an act of domestic violence lacks merit.
We need not address Defendant's challenge to the trial court's determination that Defendant's actions placed Plaintiff in fear of imminent bodily harm since our determination that the trial court did not err by finding that Defendant placed Plaintiff in fear of “continued harassment that rises to such a level as to inflict substantial emotional distress,” standing alone, provides ample support for the issuance of a domestic violence protective order.
III. Conclusion
Thus, for the reasons set forth above, we hold that the trial court did not commit an error of law in determining that Defendant committed an act of domestic violence against Plaintiff. In view of the fact that Defendant's challenge to the trial court's conclusion that Defendant “has committed acts of domestic violence against” Plaintiff and that “[t]here is danger of serious and immediate injury to” Plaintiff rests solely upon Defendant's contention that the trial court erroneously found that Defendant engaged in an act of domestic violence, we reject that aspect of Defendant's challenge to the trial court's order as well. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).