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Henderson v. Henderson

Court of Appeals of North Carolina

June 3, 2014


Heard in the Court of Appeals January 22, 2014.

Counsel Amended, June 3, 2014.

Wake County. No. 13 CVD 1691. Robert B. Rader, Judge.

Cranfill Sumner & Hartzog LLP, by M. Denisse Gonzalez, for Plaintiff.

Edmundson & Burnette, L.L.P., by Mr. James T. Duckworth, III, for Defendant.

STEPHENS, Judge. Judges STEELMAN and DAVIS concur.


Page 682


Appeal by Defendant from Orders entered 8 February 2013 by Judge Ned W. Mangum, 18 and 20 February 2013 by Judge Robert B. Rader, and 18 April 2013 by Judge Margaret Eagles in Wake County District Court. Heard in the Court of Appeals 22 January 2014.

Factual Background and Procedural History

This case arises from the filing of a complaint for a domestic violence protective order (" DVPO" ) by Plaintiff Alisa G. Henderson. The complaint was filed on 8 February 2013 and alleged that Plaintiff's former spouse, Defendant Jason Jordan Henderson, intentionally caused bodily injury to the parties' children, both girls, by frequently spooning with them in his underwear, grabbing their buttocks, placing cameras in their rooms while they were dressing, and beating them with belts, his hands, and a wooden spoon while other children were forced to watch. The complaint also asserted that Defendant placed the children in actual fear of imminent serious bodily injury by cursing at and threatening the children, allowing a friend to offer alcohol to one of the children, and becoming intoxicated to the point of falling over. Given these allegations, the trial court issued a temporary, ex parte DVPO on 8 February 2013. The ex parte DVPO was effective through 18 February 2013, and a hearing was set for the same date. Defendant received notice of the entering of the ex parte DVPO and the 18 February 2013 hearing. Therein, Defendant was informed that the purpose of the hearing was to determine " whether the [o]rder will be continued."

Evidence presented at the hearing tended to show that Plaintiff and Defendant are divorced with two daughters, Eliza and Anna.[1] At the time of the hearing, Eliza was fourteen and Anna was eleven. The parties shared joint custody of the children before the DVPO was issued. Both parties are now re-married, and Defendant has two daughters from his current marriage.

According to a social worker at the Wake County Division of Social Services (" DSS" ), DSS received a report on 8 February 2013 alleging a number of instances of misconduct by Defendant. At the time of the hearing, the allegations had not been substantiated. Nonetheless, DSS had implemented a safety plan for the children. The children would stay with Plaintiff and have no unsupervised contact with Defendant.

At the close of the hearing, the trial court found that " there have been acts that constitute domestic violence." Thus, the court entered a DVPO for a period of one year, ordering Defendant, inter alia, to abide by the DSS safety plan and refrain from any unsupervised contact with Eliza and Anna during that period. A written DVPO was filed the same day, memorializing the court's oral pronouncement. An amended DVPO was filed two days later, on 20 February 2013, providing that, as a law enforcement officer, Defendant may possess or use a firearm for official use.

Page 683

On 15 March 2013, Defendant filed notice of appeal from the trial court's 8, 18, and 20 February 2013 orders. That same day, Defendant filed a motion to vacate or set aside the DVPO under Rule 60(b) of the North Carolina Rules of Civil Procedure. The trial court denied Defendant's motion by order filed 28 March 2013. On 18 April 2013, the trial court filed a second, written order denying Defendant's motion to vacate. The court determined that it retained jurisdiction over Defendant's motion pursuant to Rule 60(b), despite the fact that Defendant had already filed his notice of appeal of the DVPO orders. The court concluded that Defendant was not entitled to relief pursuant to Rule 60(b)(4) or (6) because the DVPO was not void and because " Defendant was unable to show that any extraordinary circumstances exist or that justice demands for the DVPO to be vacated." Defendant also appealed from that order.


On appeal, Defendant argues that the DVPO and amended DVPO are void because the trial court acted in excess of its jurisdiction. Therefore, Defendant asserts, the trial court erred in denying his Rule 60(b) motion to vacate. Alternatively, Defendant contends that the trial court's findings of fact are not supported by competent evidence and, thus, do not support its conclusion that Defendant committed acts of domestic violence against the children and put them in serious and immediate danger of injury. We affirm.

I. Subject Matter Jurisdiction

Defendant first argues that the trial court lacked subject matter jurisdiction to enter the DVPO because the court (1) failed to follow statutory procedure by not allowing Defendant 10 days following service of the summons and complaint to file an answer, and (2) held the DVPO hearing on the merits rather than for the purpose of simply continuing the ex parte order. We disagree.

" Where jurisdiction is statutory and the [l]egislature requires the [trial court] to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the [c]ourt to certain limitations, an act of the [c]ourt beyond these limits is in excess of its jurisdiction." Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975). " Whether a trial court has subject[ ]matter jurisdiction is a question of law, reviewed de novo on appeal." McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010) (italics added).

(1) Time to File an Answer

Section 50B-2 of the North Carolina General Statutes applies to the institution of civil actions, motions for emergency relief, temporary orders, and temporary custody in domestic violence cases. N.C. Gen. Stat. § 50B-2 (2013). Relevant to this appeal, subsections (a) and (c) provide as follows:

( a) . . . Any action for a [DVPO] requires that a summons be issued and served. The summons issued pursuant to this Chapter shall require the defendant to answer within 10 days of the date of service. . . .
. . .
(c) Ex Parte Orders. --
. . .
(5) Upon the issuance of an ex parte order under this subsection, a hearing shall be held within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later. A continuance shall be limited to one extension of ...

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