Opinion
NO. COA12-426
10-16-2012
KIMBRE H. METTS, Plaintiff v. JOHN VAN BOKKELEN METTS, III, Defendant
No brief filed for plaintiff appellee. John Van B. Metts, III, pro se, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
New Hanover County
No. 08 CVD 1829
Appeal by defendant from order entered 22 November 2011 by Judge Jeffrey E. Noecker in New Hanover County District Court. Heard in the Court of Appeals 13 September 2012.
No brief filed for plaintiff appellee.
John Van B. Metts, III, pro se, defendant appellant.
McCULLOUGH, Judge.
John Van B. Metts, III ("defendant") appeals from an order of the trial court denying his motion for relief under Rule 60(b) of the North Carolina Rules of Civil Procedure. We affirm.
I. Background
On 24 April 2008, Kimbre H. Metts ("plaintiff") filed a complaint and motion for a domestic violence protective order ("DVPO") against defendant in New Hanover County District Court, case number 08 CVD 1829. On that same day, the trial court entered an ex parte DVPO, effective for ten days. Sometime thereafter, in May 2008, plaintiff filed a complaint against defendant in family court seeking child custody, child support, post-separation support, alimony, and equitable distribution, case number 08 CVD 1948.
A hearing was scheduled on the ex parte DVPO on 2 May 2008, but was continued a number of times. On 27-28 and 31 October 2008, the trial court held a hearing on both the ex parte DVPO and plaintiff's family court complaint. From the record, it appears both plaintiff and defendant were present and testified at the hearing, as did plaintiff's sister and John Korell, a witness for defendant. Following the hearing, the trial court entered a DVPO consent order in case number 08 CVD 1829, effective until 24 April 2009. Attached to the DVPO consent order were multiple findings of fact made by the trial court.
On the following day, 7 November 2008, the trial court again held a hearing in case number 08 CVD 1948 addressing temporary custody of the parties' minor child, post-separation support, child support, and interim distribution. On 7 January 2009, nunc pro tunc 7 November 2008, the trial court entered an order for temporary custody, post-separation support, child support, and interim distribution in case number 08 CVD 1948. This order was amended on 16 January 2009 to correct typographical errors.
On 9 February 2009, defendant filed a motion "to set aside the Order entered in this matter January 16, 2009 and to reopen the hearing conducted in October 2008." Defendant's motion specifically referenced case number 08 CVD 1948 only. The trial court held a hearing on defendant's motion on 23 February 2009, and on 20 May 2009, nunc pro tunc 23 February 2009, the trial court entered an order denying defendant's motion to set aside the order previously entered in case number 08 CVD 1948.
Prior to the expiration of the initial DVPO consent order, plaintiff filed a motion to renew the DVPO on 1 April 2009 in case number 08 CVD 1829. On 17 April 2009, a hearing on plaintiff's motion for renewal was continued until 15 May 2009. In the interim, on 1 May 2009, defendant filed a motion to disqualify the presiding trial judge in both cases, arguing the trial judge demonstrated impermissible bias against defendant in denying his 9 February 2009 motion to set aside the order and reopen the hearing. In his motion to disqualify, defendant contends he requested the trial court to set aside the trial court's 6 November 2008 order in case number 08 CVD 1829 and that the trial judge denied defendant the right to present evidence contradicting the trial court's findings of fact in that order. The record does not contain any documentation of the trial court's ruling on defendant's motion to disqualify.
On 15 May 2009, the trial court held a hearing on plaintiff's motion to renew the DVPO, and on that same day, the trial court entered an order renewing the DVPO in case number 08 CVD 1829, effective until 15 May 2011. The record indicates defendant entered notice of appeal from this order, although it appears from the record defendant did not pursue his appeal thereafter. On 6 October 2010, the trial court amended the DVPO on defendant's oral motion to amend the order pursuant to an equitable distribution order entered in case number 08 CVD 1948, although the record contains no documentation of the proceedings that occurred in case number 08 CVD 1948 prior to the issuance of the referenced equitable distribution order.
On 29 April 2011, prior to the expiration of the DVPO, plaintiff again filed a motion for renewal in case number 08 CVD 1829. On 11 May 2011, defendant filed a response, moving the court "to set aside the Order entered in this matter November 6, 2008 and renewed May 15, 2009[,] to reopen the hearing conducted in October 2008[,] and to allow the Defendant to present new material evidence relevant and crucial to this case." In his motion, defendant contended that at the previous hearing on 15 May 2009, he was prepared to present testimony by John Korell and Henry Korell refuting the trial court's findings of fact contained in the original DVPO consent order entered on 6 November 2008. Defendant attached sworn statements by both witnesses, as well as other documentation, supporting his motion. One of these attachments was a sworn statement by John Korell attesting that although defendant's attorney "had questioned him thoroughly" at the hearing regarding certain events on a specific date, defendant's attorney had failed to question him about his activities on a prior date, such that he could not clarify his whereabouts in contradiction to plaintiff's testimony.
On 13 May 2011, the trial court held a hearing on plaintiff's motion for renewal in case number 08 CVD 1829, and on that same day the trial court entered an order renewing the DVPO, effective until 13 May 2013. The record does not contain any documentation regarding the trial court's response to defendant's motion to set aside the original DVPO consent order and reopen the October 2008 hearing conducted prior to issuance of that order. Defendant did not enter notice of appeal from the trial court's order renewing the DVPO.
On 27 July 2011, defendant filed a motion for relief from judgment under Rule 60(b) of the North Carolina Rules of Civil Procedure in both 08 CVD 1829 and 08 CVD 1948. In his motion, defendant alleged that plaintiff and her sister presented false testimony at the October 2008 hearing and that the continuous denial of defendant's motions to present new evidence to refute plaintiff's original testimony demonstrated collusion between his original defense attorney, plaintiff's attorney, and the trial court in order to deny him a fair and impartial hearing. Defendant also presented arguments relating to the trial court's alimony and equitable distribution determinations.
On 3 October 2011, the trial court held a hearing on defendant's Rule 60(b) motion, and on 22 November 2011, the trial court entered an order in case number 08 CVD 1948 denying defendant's Rule 60(b) motion. In its order, the trial court made findings of fact indicating that "[a] lengthy hearing was held during the May 24, 2010 two week session of Family Court on the issues of equitable distribution, alimony, custody, child support and attorneys fees[,]" that the trial court had "received testimony from both parties and entered into evidence extensive documents to support each part[y's] position as to the issues to be heard[,]" that "[n]either party was denied the right to present any evidence at the trial of this matter[,]" that the trial court had "entered a written Order on or about July 27, 2010 which contained extensive Findings of Fact and Conclusions of law based upon the evidence[] received during the trial in this matter[,]" and that at the hearing held on 3 October 2011, "Defendant again presented no new evidence that would warrant a new hearing and the same shall be dismissed." The record contains no order of the trial court addressing defendant's Rule 60(b) motion in case number 08 CVD 1829.
On 20 December 2011, defendant entered written notice of appeal from the trial court's 22 November 2011 order. In his notice of appeal, defendant specified both case numbers, 08 CVD 1948 and 08 CVD 1829. However, all subsequent appellate materials, as well as defendant's arguments on appeal, in this case reference only case number 08 CVD 1829.
II. Discussion
In the present case, defendant purports to appeal from an order of the trial court denying his motion for relief under Rule 60(b) of the North Carolina Rules of Civil Procedure. "[A] motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion." Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). We note at the outset that the record appears to contain no written order for this Court to review in this case, 08 CVD 1829. However, to the extent the trial court's order denying defendant's Rule 60(b) motion in case number 08 CVD 1948 can be construed as denying defendant's Rule 60(b) motion as it pertains to this case, as defendant appears to contend on appeal, we will address defendant's arguments.
Pursuant to Rule 60(b) of our Rules of Civil Procedure:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:N.C. Gen. Stat. § 1A-1, Rule 60(b) (2011). In the present case, defendant primarily relies on subsection three of Rule 60(b), alleging that the entirety of the proceedings in this case "have been a fraud." Defendant appears to ignore the fact that the "fraud" referred to in subsection three is limited to "fraud" by the "adverse party." Id. § 1A-1, Rule 60(b)(3).
. . . .
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
. . . .
(6) Any other reason justifying relief from the operation of the judgment.
Nonetheless, defendant's first argument in this regard is that his "sworn Rule 60(b) Motion and attachments" demonstrate collusion between defendant's prior attorney and plaintiff's attorney to suppress defendant's right to present evidence demonstrating the falsity of plaintiff's allegations in her original complaint for a DVPO. First, we note defendant's Rule 60(b) motion was neither "sworn" to nor contained any attachments. Defendant's Rule 60(b) motion, as contained in the record, was simply signed by defendant and contained no documentary evidence attached thereto, nor references to transcripts of proceedings in support of his accusations.
Defendant's arguments on this issue, in both his appellate brief and his Rule 60(b) motion, appear to be based on his belief, as stated in his Rule 60(b) motion, that "[t]here had to be a criminal event to obtain a Restraining Order." We presume that defendant has devoted his efforts to presenting evidence to refute plaintiff's original testimony and to demonstrate that he was acquitted of an assault charge against plaintiff's sister in order to show that no crime had occurred, and thus, there was never a basis for the trial court's entry of a DVPO. Defendant is mistaken.
N.C. Gen. Stat. § 50B-3(a) (2011) provides that if the 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." N.C. Gen. Stat. § 50B-3(a) (2011) (emphasis added); see also Hensey v. Hennessy, 201 N.C. App. 56, 67, 685 S.E.2d 541, 549 (2009). Pursuant to N.C. Gen. Stat. § 50B-1(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:N.C. Gen. Stat. § 50B-1(a) (2011) (emphasis added). Notably, the commission of a criminal act is not required for a trial court to determine that an act of domestic violence has occurred.
(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.
Here, the trial court found as fact that on 22 April 2008, upon his return home from the hospital, defendant
was continuing to act in an out of control fashion, knocking over furniture, leaving lit cigarettes around the home, and smashing glasses in the sink. During this tirade, the Defendant stated to the Plaintiff 'get the f--k out of my way or I'll hurt you', thereby placing the Plaintiff in fear of serious bodily injury.The trial court further found "that at some point during this melee, the minor child came out of his room and was standing at the top of the stairs. Testimony established that the minor child was crying as a result of the commotion caused by the Defendant." The trial court then made findings of fact regarding defendant's alleged assault on plaintiff's sister. In addition, the trial court found that "[t]he minor child was present during these acts of domestic violence, and even though the Defendant never assaulted the minor child, the minor was nevertheless exposed to a substantial risk of emotional injury based on the Defendant's conduct."
By attempting to present additional evidence to refute the trial court's findings, defendant appears to contend that the trial court's findings of fact were not supported by competent evidence. We note that whether the trial court's findings of fact in its 6 November 2008 DVPO consent order are supported by competent evidence is not an issue reviewable in this appeal. There is no dispute in this case that entry of a DVPO is a final order of the trial court. See Hennessy, 201 N.C. App. at 59, 685 S.E.2d at 544. In this case, defendant neither pursued an appeal nor moved the trial court for relief from the trial court's entry of the 6 November 2008 DVPO consent order, or the 15 May 2009 order renewing the DVPO. Thus, those orders stand as final binding judgments of the trial court and are not properly before this Court on appeal. See In re Wheeler, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987).
Even if we could properly review the trial court's 6 November 2008 DVPO consent order and the trial court's subsequent 15 May 2009 renewal order, defendant cannot show how the trial court erred in entering these orders. "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 v. Brandon, 132 N.C. App. 646, 651, 513 S.E.2d 589, 593 (1999) (alteration in original) (quoting Repair Co. v. Morris & Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968)).
[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) (internal quotation marks and citations omitted).
Moreover, "[w]here there is evidence offered before the trial court and appellant assigns as error that the evidence does not support the findings of fact by the trial judge, but does not include the evidence in the record on appeal, we will presume the facts found are supported by competent evidence." Potts v. Potts, 19 N.C. App. 193, 194, 198 S.E.2d 203, 204 (1973). Here, defendant has failed to include any transcripts for any of the hearings that occurred in this case. Thus, we must presume the trial court's findings of fact were properly supported by the evidence. The trial court's findings of fact, therefore, support its conclusion of law in the original 6 November 2008 DVPO consent order that an act of domestic violence, as defined by statute, had occurred, thereby supporting entry of the order. Specifically, the trial court found that on 22 April 2008, defendant's actions and statements to plaintiff placed her in fear of imminent bodily injury. Notably, defendant's proffered evidence addresses only the allegations concerning the assault on plaintiff's sister the following day and has no bearing on this finding by the trial court. Accordingly, the trial court's refusal to reopen the hearing to take additional evidence was proper.
Therefore, we must dismiss defendant's arguments that the trial court's original findings of fact were not supported by the evidence and were therefore erroneous and that defendant's evidence presents a meritorious defense to the basis for the DVPO. Plaintiff's allegation that defendant assaulted plaintiff's sister was not the sole basis for the original DVPO and other findings of fact by the trial court support the conclusion of law that defendant had committed an act of domestic violence.
Furthermore, defendant's arguments that the trial court abused its discretion by refusing to allow him to present the additional evidence that he so strenuously contends exonerates him of the assault allegations against plaintiff's sister prior to renewing the DVPO on 15 May 2009 are again misguided. N.C. Gen. Stat. § 50B-3(b) provides that the trial court may renew a DVPO "for good cause." N.C. Gen. Stat. § 50B-3(b). Again, the statute does not require a criminal act for the renewal of a DVPO. Here, the trial court found as good cause to renew the DVPO on 15 May 2009 that defendant had violated the DVPO since the entry thereof and that plaintiff remained in fear of defendant for both her and her family. We presume these findings are supported by competent evidence presented at the hearing, given that no transcripts have been filed. Potts, 19 N.C. App. at 194, 198 S.E.2d at 204. Similarly, on 13 May 2011, the trial court found as good cause to renew the DVPO that defendant admitted in court he had been to plaintiff's home and that plaintiff remained in fear of defendant. Again, we presume these findings are supported by competent evidence, given the absence of transcripts. Thus, the trial court properly found good cause to renew the DVPO in both instances, thereby satisfying the statutory criteria for renewing the DVPO. Defendant's evidence refuting the former assault allegations against plaintiff's sister was irrelevant at that point, as the trial court properly concluded.
We likewise dismiss defendant's argument that his original defense attorney did not represent his interests at the original evidentiary hearing, thereby warranting the granting of his Rule 60(b) motion. Again, defendant has included no transcripts of the hearings held in this case so that we may review his counsel's actions, as well as the trial court's subsequent response to defendant's motions. Other than defendant's bold accusations, there is nothing in the record to indicate defendant's attorney conspired against him or otherwise failed to adequately represent his interests in this case. We note also that actions by defendant's own attorney do not constitute "fraud" by an adverse party warranting relief under Rule 60(b)(3). Our Courts have explicitly held that neither negligence nor fraud by a party's own attorney provides a basis for relief from a judgment under Rule 60(b)(3). See, e.g., Henderson v. Wachovia Bank of N.C., 145 N.C. App. 621, 627-28, 551 S.E.2d 464, 469 (2001).
For the same reasons, we must reject defendant's allegations of collusion between defendant's counsel, plaintiff's counsel, and the trial court to suppress defendant's evidence addressing the allegations in plaintiff's motions for DVPO. From the record, it appears that defendant was both present at and participated in each and every hearing held in this case. No transcripts have been included in the record, and defendant has not shown any record evidence supporting his accusations of conspiracy among the professionals involved in his case. Defendant simply points to the trial court's continuous denial of his motions to set aside the trial court's orders and reopen its previous hearings for the purpose of accepting new evidence from defendant's witnesses, one of whom was present at the original hearing and testified on defendant's behalf, in support of his assertions that the entire proceedings have been a fraud. From the record before us, however, we conclude defendant was given a fair opportunity to present evidence at the hearings in this case. The record fails to demonstrate any egregious actions by the attorneys or the trial court in handling defendant's case such that relief would be required under Rule 60(b)(6). See Henderson, 145 N.C. App. at 628, 551 S.E.2d at 469.
Thus, upon review of the limited record before us, the trial court's DVPO orders contain the requisite statutory findings of fact needed to support those orders, and defendant's repeated attempts to present contradictory evidence after the initial hearing were properly denied by the trial court. The record in no way supports defendant's allegations of collusion between his original attorney and plaintiff's attorney to prevent his presenting a defense to the domestic violence allegations, nor does the record support defendant's repeated fraud accusations directed at the attorneys and the trial judges. Defendant has shown no basis for relief from the judgments entered in this case, and accordingly, he has failed to meet his burden of showing any abuse of discretion by the trial court in denying his Rule 60(b) motion. The order of the trial court denying defendant's Rule 60(b) motion, as it pertains to case number 08 CVD 1829, is therefore affirmed.
To the extent defendant attempts to request sanctions and attorney's fees, he makes no argument nor cites any authority for why he should be granted such relief, and no such request was made to the trial court. Defendant's request is therefore denied. Further, defendant has raised no issue on appeal as to the trial court's award of sanctions against him under Rule 11, and therefore, that order also stands as entered, to the extent such order pertains to case number 08 CVD 1829.
Affirmed.
Judges HUNTER, JR. (Robert N.) and ERVIN concur.
Report per Rule 30(e).