Hensey v. Hennessy

• Decision Date: 17 November 2009
• Docket Number: No. COA08-1277.,COA08-1277.
• Citation: Hensey v. Hennessy, 685 S.E.2d 541, 201 N.C.App. 56 (N.C. App. 2009)
• Parties: Nicole HENSEY, Plaintiff, v. Mark HENNESSY, Defendant.
• Court: North Carolina Court of Appeals

685 S.E.2d 541

Nicole HENSEY, Plaintiff, v. Mark HENNESSY, Defendant.

No. COA08-1277.

Court of Appeals of North Carolina.

November 17, 2009.

Appeal by defendant from orders entered 19 November 2007 by Judge Leonard W. Thagard, and 10 March 2008 and 21 April 2008 by Judge Henry L. Stephens, IV, in Onslow County District Court. Heard in the Court of Appeals 6 May 2009.

Lana S. Warlick, Jacksonville, for plaintiff-appellee.

Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, Raleigh, for defendant-appellant.

STROUD, Judge.

Defendant appeals from a 19 November 2007 ex parte domestic violence order of protection, 10 March 2008 domestic violence order of protection, and 21 April 2008 order denying defendant's motions for a new trial and relief from judgment. For the following reasons, we affirm the 19 November 2007 ex parte domestic violence order of protection and reverse the 10 March 2008 domestic violence order of protection.

I. Background

On 19 November 2007, plaintiff filed a "complaint and motion for domestic violence protective order[,]" (original in all caps), alleging that on 17 November 2007, while she was 29 weeks pregnant, defendant had, inter alia, "put [her] in a headlock" and "banged [her] into a wall[.]" On 19 November 2007, the trial court granted an "ex parte domestic violence order of protection ("ex parte DVPO"), (original in all caps), to be "effective until November 26, 2007[.]" The trial court also noticed a hearing for 26 November 2007.

Defendant moved for a continuance, and the hearing was rescheduled for 10 December 2007. The ex parte DVPO was "continued in effect until the date of the hearing[.]" On 10 December 2007, defendant filed a motion for another continuance. The hearing was rescheduled for 14 January 2007, and the trial court again ordered that the ex parte DVPO remain in effect. On or about 17 December 2007, Joseph E. Stroud, Jr. entered his appearance on behalf of defendant. On 14 January 2008, the hearing was again continued by agreement of the parties until 10 March 2008; once again the ex parte DVPO remained in effect.

At the hearing on 10 March 2008, neither defendant nor his attorney were present. The trial court entered a "domestic violence order of protection" ("DVPO") (original in all caps), to be in effect until 10 March 2009. On 11 March 2008, defendant's attorney filed motions (1) for a new trial, (2) or, in the alternative, to set aside the 10 March 2008 DVPO, (3) to withdraw as counsel, and (4) to expedite the hearing of the motions. On 10 April 2008, defendant's attorney filed a separate motion to withdraw as counsel. On 21 April 2008, the trial court denied defendant's motions for a new trial and for relief from judgment. On 22 April 2008, the trial court allowed defendant's attorney to withdraw as counsel. Defendant appeals the ex parte DVPO, the DVPO, and the order denying his motions for a new trial and for relief from judgment.

II. Appeal of Interlocutory Order

Though not addressed by either party, "whether an appeal is interlocutory presents a jurisdictional issue, and this Court has an obligation to address the issue sua sponte." Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation, quotation marks, and brackets omitted). In Smart v. Smart, the defendant appealed from either an emergency or ex parte DVPO entered pursuant to N.C. Gen.Stat. § 50B-2. 59 N.C.App. 533, 536, 297 S.E.2d 135, 137 (1982). This Court dismissed the appeal and held "that the order is interlocutory and the immediate temporary emergency relief granted by the order does not affect any substantial right of the defendant which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on the merits." Id. at 536, 297 S.E.2d at 137-38. Smart is distinguishable from the present case because in Smart the defendant failed to appeal from the final order; in fact, in Smart it is unclear whether the trial court ever entered a final order. See Smart, 59 N.C.App. 533, 297 S.E.2d 135.

We have been unable to find any precedential case law which has addressed an appeal from an ex parte DVPO where the notice of appeal was filed after entry of the DVPO and notice of appeal was given as to both the ex parte DVPO and the DVPO. Thus, we conclude that although the ex parte DVPO was an interlocutory order and would not have been immediately appealable, see Smart at 536, 297 S.E.2d at 137-38, it is now "reviewable ... [only] on appropriate exception upon an appeal from the final judgment in the cause." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d, 377, 382 (1950) (citation omitted); see Love v. Moore, 305 N.C. 575, 578, 291 S.E.2d 141, 144 (1982) ("An interlocutory decree which does not affect a substantial right is reviewable only on appropriate exception upon an appeal from the final judgment in the cause." (citation omitted)). As defendant properly waited until after entry of the DVPO to file his notice of appeal to the ex parte DVPO and the DVPO together, we will review both orders.

III. Standard of Review

When the trial court sits without a jury [regarding a DVPO], 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. Where there is competent evidence to support the trial court's findings of fact, those findings are binding on appeal.

Burress v. Burress, ___ N.C.App. ___, ___, 672 S.E.2d 732, 734 (2009) (citations, quotation marks, and brackets omitted).

IV. Ex Parte DVPO

Defendant first contends that the trial court erred by making insufficient findings of fact before issuing the ex parte DVPO. Essentially, the defendant raises three separate arguments as to the ex parte order: (1) the trial court did not hear any evidence, but instead based the ex parte DVPO only upon the verified complaint; (2) the DVPO did not contain any findings as to the "specific facts" upon which it is was based; and (3) if the ex parte DVPO did contain findings of fact, they were not sufficient under N.C. Gen.Stat. § 1A-1, Rule 52.

1. DVPO Hearing

A court may only issue an ex parte DVPO if "it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party[.]" N.C. Gen.Stat. § 50B-2(c) (emphasis added). N.C. Gen.Stat. § 50B-2(c) does not provide that the trial court may issue an ex parte DVPO based solely upon the allegations of the complaint. N.C. Gen.Stat. § 50B-2(c) instead provides that

[i]f an aggrieved party acting pro se requests ex parte relief, the clerk of superior court shall schedule an ex parte hearing with the district court division of the General Court of Justice within 72 hours of the filing for said relief, or by the end of the next day on which the district court is in session in the county in which the action was filed, whichever shall first occur.

Id. (emphasis added).¹

Therefore, N.C. Gen.Stat. § 50B-2 requires that a "hearing" be held prior to issuance of the ex parte DVPO. See id. If the ex parte DVPO could be issued based only upon the verified complaint, without having the aggrieved party appear for a hearing before a judge or magistrate, there would be no need to schedule a hearing; the judge or magistrate could simply read the verified complaint and decide whether to issue the ex parte DVPO. See id.

The record before us does not contain any transcript of the ex parte hearing held on 19 November 2007, but the ex parte DVPO provides that "[t]his matter was heard" by the trial judge on that date. Given the expedited nature of the ex parte hearing process, we recognize the possibility that no transcript of that hearing was available to the parties. However, the record reflects that an ex parte hearing was held, and plaintiff appeared pro se before the trial court to request the ex parte DVPO, so presumably she offered evidence. See Potts v. Potts, 19 N.C.App. 193, 194, 198 S.E.2d 203, 204 (1973) ("Where 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."). We may therefore presume that the facts as found in the ex parte DVPO were supported by competent evidence. See id.

2. Incorporation of Complaint into Ex Parte DVPO

Defendant's next arguments deal with the trial court's actual findings of fact. N.C. Gen.Stat. § 50B-2(c) provides that the trial court may enter an ex parte DVPO to protect the plaintiff "if it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party[.]" N.C. Gen.Stat. § 50B-2(c). Ex parte DVPOs pursuant to N.C. Gen.Stat. § 50B-2 are normally in effect for a very brief time, until either entry or denial of entry of a DVPO under N.C. Gen.Stat. § 50B-3, as DVPO hearings are required "within 10 days from the date of issuance of the [ex parte DVPO] or within seven days from the date of service of process on the other party, whichever occurs later." Id. Most likely due to the brief life of ex parte DVPOs, we find no prior cases which have addressed the findings of fact required in an ex parte DVPO.

An ex parte DVPO, although brief in duration, can have a tremendous effect upon a defendant. An ex parte DVPO requiring a defendant not to "assault, threaten, abuse, follow, harass ..., or interfere with the plaintiff" should not impose any particular hardship upon the defendant; however, the ex parte DVPO may also require a defendant to, inter alia, leave his or her home, stay away from his or her children, give up possession of a motor vehicle, and surrender his or her "firearms, ammunition, and gun permits" to the sheriff. In addition, a defendant who...