Heard in the Court of Appeals September 23, 2013.
Carteret County. No. 10 CVD 1577. L. Walter Mills, Judge.
Kirkman Whitford Brady Berryman & Farias, P.A. by Kimberly Lynn Farias, for plaintiff-appellee.
Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene, Tobias S. Hampson, for defendant-appellant.
GEER, Judge. Chief Judge MARTIN and Judge STROUD concur.
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.
Defendant William Overton Rudder appeals from an ex parte domestic violence protection order entered 23 November 2010 (" the ex parte DVPO" ) and a one-year DVPO entered 28 September 2012 (" the September 2012 DVPO" ). Defendant primarily contends that the trial court erred in entering the September 2012 DVPO after the ex parte DVPO was in effect for more than 18 months, but then expired without being renewed. We hold that because at the time the ex parte DVPO expired without being renewed, it had been in effect for more than a year, the trial court did not have authority to enter the September 2012 DVPO that was based upon the same complaint. We, therefore, vacate the September 2012 DVPO. Because, however, we find defendant's arguments regarding the ex parte DVPO unpersuasive, we affirm that order.
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 " Notice of Hearing on Domestic Violence Protective Order" was issued, which scheduled a hearing on 6 December 2010 for the purpose of determining " whether the [23 November 2010 ex parte]
Order will be continued. "  (Emphasis added.)
Thereafter, approximately 13 orders were entered continuing the hearing on the ex parte DVPO. The first continuance order was entitled " ORDER CONTINUING DOMESTIC VIOLENCE HEARING AND EX PARTE ORDER" and noted that " [t]his matter was scheduled for hearing for emergency relief pursuant to G.S. 50B-2."  This order also provided, in pre-printed text, that " this hearing is continued to the date and time specified below to allow for proper service upon the defendant." However, it is not contested that defendant was actually served on 23 November 2010, so it appears that this form was used for convenience, with little regard for its substantive content. In handwriting, the order stated that " [t]he parties agree to continue this matter to resolve the marital issues without prejudice to either party. The parties agree to not dissipate the marital assets except for reasonable living expenses." The order further specified that " [t]he Court orders that the ex parte order entered in this case is continued in effect until the date of the hearing set above."
Nearly all of the other continuance orders were on the same form and contained the same pre-printed language that the hearing was being continued to allow time for service on the defendant. Some of the continuance orders further identified, in handwriting, the reason for the continuances as being, for example, to allow, by consent, the parties time to " resolve the marital issues" ; by consent, to address matters in other pending litigation involving the parties; based upon secured leave by counsel; and because of the inability of the trial court to hear the matter due to other cases on the calendar.
The final continuance order entered 17 May 2012 was on the same form and included the same language as the first continuance order: " This matter was scheduled for hearing for emergency relief pursuant to G.S. 50B-2." This order scheduled a hearing for 9:30 a.m. on 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 had, nearly two years earlier, 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 ...