Keenan v. Keenan
| Decision Date | 16 August 2022 |
| Docket Number | COA21-579 |
| Citation | 877 S.E.2d 97 |
| Parties | Megan KEENAN, Plaintiff, v. Jason KEENAN, Defendant. |
| Court | North Carolina Court of Appeals |
Walker Kiger, PLLC, by David "Steven" Walker, for plaintiff-appellee.
The Law Office of Robert L. Schupp, PLLC, by Robert L. Schupp, for defendant-appellant.
¶ 1 In accordance with N.C.G.S. § 50B-3, "[i]f [a] 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.G.S. § 50B-3(a) (2021). "Domestic violence," for purposes of N.C.G.S. § 50B-3, includes "[p]lacing the [party seeking a domestic violence protective order] or a member of [his or her] family or household in fear of imminent serious bodily injury or continued harassment, as defined in [N.C.G.S. §] 14-277.3A, that rises to such a level as to inflict substantial emotional distress[.]" N.C.G.S. § 50B-1(a)(2) (2021). Placing a person in fear of continued harassment does not require multiple acts by a defendant. Here, where Defendant challenges a domestic violence protective order ("DVPO") entered against him by specifically arguing the trial court was required to find he committed two or more acts as the basis for the alleged error, the trial court did not err, as a single act was sufficient for it to grant Plaintiff a domestic violence protective order.
¶ 2 However, a defendant's act does not constitute "continued harassment" if it served a legitimate purpose. Whether an act served a legitimate purpose is a determination reserved for the finder of fact; thus, when reviewing the trial court's determination on the issue of legitimate purpose, we uphold its determination as long as "there was competent evidence to support the trial court's findings of fact." Stancill v. Stancill , 241 N.C. App. 529, 531, 773 S.E.2d 890, 892 (2015). In this case, there was competent evidence that the only purpose of Defendant's conduct was to harass Plaintiff; and, as such, the trial court did not err in determining Defendant's act did not serve a legitimate purpose.
¶ 3 In challenging the admissibility of allegedly improper character evidence under Rule 404(b), a defendant must show the admission of that evidence created probable prejudice in the factfinder's determination at trial. Here, where Defendant makes no attempt to show he was prejudiced by an alleged evidentiary error, that issue is deemed abandoned in accordance with Rule 28(b)(6) of our Rules of Appellate Procedure.
¶ 4 In determining whether to issue a DVPO, the trial court's consideration of a prior DVPO entered against the defendant is permissible as long as it otherwise constitutes relevant evidence under Rule 401 and is considered alongside at least one current, specific act. Here, where the trial court considered a prior DVPO alongside evidence of a specific act by Defendant and the prior DVPO was relevant to contextualize Plaintiff's emotional response to his current act, the trial court did not err in considering the prior DVPO.
¶ 5 This appeal arises out of a Complaint and Motion for Domestic Violence Protective Order filed by Plaintiff on 18 August 2020 alleging Defendant, her ex-husband, came to her house "to cut [her] grass" on 17 August 2020 after she repeatedly told him he did not have permission to do so and he refused to leave after Plaintiff asked him to leave several times. Plaintiff indicated she was "very afraid" of Defendant, as he had a history of physically, emotionally, and verbally abusing her, was "showing [a] progression of unstable behavior[,]" and sent her text messages, including sexual ones, despite being asked to stop.
¶ 6 The trial court issued a temporary ex parte DVPO on 18 August 2020, adopting by reference the facts as alleged in Plaintiff's complaint. Then, after several continuances, the trial court held a hearing on 7 May 2021 to determine whether a permanent DVPO was warranted. Plaintiff testified about the 17 August 2020 incident and also introduced text messages between her and Defendant from 16 August 2020 and 17 August 2020. The testimony and text messages demonstrated that Defendant came to Plaintiff's house, began cutting her grass, and refused to leave on 17 August 2020, despite at least three requests by Plaintiff on 16 August 2020 that he not come and four requests on 17 August 2020 that he leave. Plaintiff testified she did not need or allow Defendant to come and cut her grass because she had arranged for Defendant's brother to do so, which she communicated to Defendant. She also testified that Defendant's presence on 17 August 2020 made her "nervous" and gave her a "panic attack." Finally, in addition to testifying about the August 2020 incident, Plaintiff introduced a prior consent DVPO against Defendant issued for her protection on 14 October 2016, which expired in September 2019 after two extensions, and text messages from Defendant during April 2020, including unsolicited sexual messages, which corroborated the allegations in her complaint. At the close of Plaintiff's evidence, Defendant moved to dismiss, and the trial court denied his motion.
¶ 7 Defendant, for his part, did not contradict Plaintiff's account of the August 2020 incident at the hearing; rather, he testified and presented evidence that Plaintiff's lawn was overgrown and that he ignored Plaintiff's requests and cut the grass "to protect [his] kids and their best interests and their health and well-being." Regarding the April 2020 text messages, Defendant acknowledged that he understood "[Plaintiff] doesn't want [him] sending those type[s] [of] messages to her" and testified he had stopped doing so. Plaintiff cross-examined Defendant about another prior DVPO against him, one issued for his sister's protection. Plaintiff did not introduce this DVPO into evidence, but she showed Defendant a copy and questioned him about it. Defendant objected to these questions, first on relevancy grounds and then on the grounds that the DVPO constituted impermissible character evidence. See generally N.C.G.S. § 8C-1, Rule 401 (2021); N.C.G.S. § 8C-1, Rule 403 (2021); N.C.G.S. § 8C-1, Rule 404 (2021). The trial court, however, overruled both objections. At the close of all evidence, Defendant renewed his motion to dismiss for insufficiency of the evidence, but the trial court, again, denied his motion.
¶ 8 At the close of the hearing, the trial court granted Plaintiff a permanent DVPO; and, on 18 May 2021, Defendant appealed.
¶ 9 On appeal, Defendant argues that "the trial court erred in denying Defendant's motion[s] to dismiss for insufficiency of the evidence"; that "the trial court erred in granting Plaintiff's petition for a domestic violence protective order"; and that "the trial court erred in admitting ... prior domestic violence protective order[s] entered against Defendant ...." However, as Defendant's arguments with respect to both his motions to dismiss and the granting of the DVPO revolve entirely around two blanket arguments about the interpretation of N.C.G.S. § 50B-1 —namely, that a DVPO "requires two or more acts in order for a defendant to have engaged in [domestic violence]" and that "Defendant's acts served a legitimate purpose"—we review these underlying arguments in order to resolve both the motion to dismiss and DVPO arguments simultaneously, then proceed to consider the character evidence issue. Neither blanket argument by Defendant is meritorious, and the trial court did not err in considering evidence of Defendant's prior DVPOs. We affirm.
N.C.G.S. § 50B-1(a) (2021). Specifically at issue in this case is whether Defendant "[placed] the aggrieved party ... in fear of imminent serious bodily injury or continued harassment, as defined in [N.C.G.S. §] 14-277.3A, that rises to such a level as to inflict substantial emotional distress[,]" as this was the primary basis for the DVPO. Id.
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