Heard in the Court of Appeals 23 September 2013.
This opinion is published in the advance sheet at
this citation, Rudder v. Rudder, 754 S.E.2d 678, was withdrawn from the bound volume per order by the court dated March 21, 2014.
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 No. 10 CVD 1577
No brief filed on behalf of plaintiff-appellee.
Wyrick Robbins Yates & Ponton, LLP, by Tobias S. Hampson, for defendant-appellant.
Defendant William Overton Rudder appeals from an ex parte domestic violence protection order ("DVPO") entered 23 November 2010 and a one-year DVPO entered 28 September 2012. Defendant primarily contends that the trial court erred in entering the one-year DVPO after the ex parte DVPO expired without being renewed. We agree and hold that the trial court did not, under those circumstances, have authority to enter a one-year DVPO based on the allegations of the complaint. We, therefore, vacate the one-year DVPO.
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 hearing on whether a one-year DVPO should be entered was scheduled for 6 December 2010.
Thereafter, approximately 13 orders were entered continuing the hearing on the request for a one-year DVPO, but also continuing the ex parte DVPO in effect. The final continuance order entered 17 May 2012 continued the ex parte DVPO in effect until the date of the next-scheduled hearing, 4 June 2012. On 4 June 2012, however, no hearing took place, the trial court did not enter an additional continuance, and the court did not renew the existing ex parte DVPO. The ex parte DVPO, therefore, expired on 4 June 2012.
On 6 June 2012, defendant filed a motion pursuant to N.C. Gen. Stat. § 50B-3.1(f), requesting return of firearms seized from him pursuant to the ex parte DVPO. On 7 June 2012, plaintiff filed a Rule 60 motion, seeking relief from the 17 May 2012 continuance order "on the grounds of excusable neglect, clerical error, and mistake in that the date set for hearing this matter was explicitly intended to be heard during the June 4, 2012 term of court as opposed to the specific day of June 4, 2012." The record contains no indication that the trial court ever ruled on plaintiff's Rule 60 motion. Defendant, however, subsequently filed additional motions for return of his firearms on 12 June 2012 and 21 June 2012, using a pro se form.
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 DVPO based upon the underlying complaint. The trial court allowed plaintiff to present evidence to support the issuance of a one-year DVPO at the 31 August 2012 hearing. Defendant presented his evidence at the hearing on 21 September 2012.
On 28 September 2012, the trial court entered a one-year DVPO, finding that defendant 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 one-year DVPO to this Court.
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. Regardless whether the one-year DVPO was renewed or expired, this appeal is not 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 one-year DVPO.
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 ...