Stancill v. Stancill

• Decision Date: 16 June 2015
• Docket Number: No. COA14–1024.,COA14–1024.
• Citation: 773 S.E.2d 890,241 N.C.App. 529
• Court: North Carolina Court of Appeals
• Parties: Lori Dennis STANCILL, Plaintiff, v. Wiley Christopher STANCILL, Defendant.

241 N.C.App. 529

773 S.E.2d 890

Lori Dennis STANCILL, Plaintiff,

v.Wiley Christopher STANCILL, Defendant.

No. COA14–1024.

Court of Appeals of North Carolina.

June 16, 2015.

Teresa DeLoatch Bryant, for plaintiff-appellee.

Law Office of Cynthia A. Mills, Greenville, by Cynthia A. Mills, for defendant-appellant.

STROUD, Judge.

Wiley Christopher Stancill ("defendant") appeals from an ex parte domestic violence protective order and a domestic violence protective order, in which the trial court found that he had committed an act of domestic violence against Lori Dennis Stancill ("plaintiff"). We affirm in part, vacate in part, and remand.

I. Background

In 1985, plaintiff and defendant married. From July 2007 to December 2007, plaintiff and defendant were separated but then reconciled and resumed living together. Plaintiff alleges that in 2007 or 2008, defendant confessed that he had tried to kill plaintiff during this period of separation. In July 2013, plaintiff and defendant separated again. In July or August 2013, defendant sent plaintiff a text message, which stated, "I am killing myself. I need you [.]" In April 2014, defendant texted plaintiff: "I invited you to come home time and time again. Take the wrath that comes." In May 2014, defendant sent plaintiff several similar text messages.

On 28 May 2014, plaintiff filed a verified complaint alleging that defendant placed her in fear of imminent serious bodily injury and in fear of continued harassment that rises to such a level as to inflict substantial emotional distress. That day, a district court judge conducted an ex parte hearing and entered an ex parte domestic violence protective order ("ex parte DVPO"), in which the judge concluded that defendant had committed an act of domestic violence against plaintiff and ordered that defendant surrender all firearms, ammunition, and gun permits.

On 6 June 2014, a different district court judge conducted a hearing, in which both parties participated and presented testimony. That day, the judge entered a domestic violence protective order ("DVPO"), in which the judge found that defendant had committed an act of domestic violence against plaintiff and ordered that defendant surrender all firearms, ammunition, and gun permits. On 30 June 2014, defendant requested an audio recording of the ex parte DVPO hearing for the purpose of preparation of the transcript for appeal, but the trial court denied his request because no recording of the hearing had been made. On 30 June 2014, defendant gave timely notice of appeal.

II. Standard of Review

We review both an ex parte DVPO and a DVPO to 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 S.E.2d 541, 544 (2009). "While the trial court need not set forth the evidence in detail[,] it does need to make findings of ultimate fact which are supported by the evidence; the findings must identify the basis for the ‘act of domestic violence.’ " Kennedy v. Morgan, 221 N.C.App. 219, 224, 726 S.E.2d 193, 196 (2012).

Where the trial court sits as the finder of fact, and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial court.

This Court can only read the record and, of course, the written word must stand on its own. But the trial judge is present for the full sensual effect of the spoken word, with the nuances of meaning revealed in pitch, mimicry and gestures, appearances and postures, shrillness and stridency, calmness and composure, all of which add to or detract from the force of spoken words.

The trial court's findings turn in large part on the credibility of the witnesses, and must be given great deference by this Court.

Brandon v. Brandon, 132 N.C.App. 646, 651–52, 513 S.E.2d 589, 593 (1999) (citations, quotation marks, and brackets omitted). We review de novo issues of statutory interpretation. Moore v. Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012). We review the two orders independently of one another. Hensey, 201 N.C.App. at 66, 685 S.E.2d at 548–49.

III. Ex Parte DVPO

With respect to the ex parte DVPO, defendant contends that the trial court erred in (1) failing to record the ex parte DVPO hearing; (2) failing to make specific findings of fact as to every element of fear of continued harassment, one of its grounds for concluding that defendant committed an act of domestic violence; and (3) ordering defendant to surrender all firearms, ammunition, and gun permits.

A. Failure to Record

i. Analysis

Defendant contends that the trial court erred in failing to record the ex parte DVPO hearing. Relying on Hensey, plaintiff responds that the trial court did not need to record the hearing. See id. at 60, 685 S.E.2d at 545. But Hensey is distinguishable. There, the defendant-appellant contended that the trial court erred in failing to "hear any evidence, but instead based the ex parte DVPO only upon the verified complaint[.]" Id. at 59, 685 S.E.2d at 544. But the record in Hensey indicated that a hearing of some sort did in fact take place, and it did not show that the defendant had even requested a copy of a recording of the hearing. See id. at 60, 685 S.E.2d at 545. Although "we recognize[d] the possibility that no transcript of that hearing was available to the parties[,]" we followed the general rule that when the appellant fails to include in the appellate record the evidence necessary to review its issue, we do not presume error. Id., 685 S.E.2d at 545. The issue of whether the ex parte DVPO hearing should have been recorded was not presented or addressed in Hensey. Id., 685 S.E.2d at 545.

In contrast, here, defendant specifically requested a copy of an audio recording of the ex parte DVPO hearing, but his request was denied because the trial court made no such recording. We have previously held that

while it is the appellant's responsibility to make sure that the record on appeal is complete and in proper form, where the appellant has done all that she can to do so, but those efforts fail because of some error on the part of our trial courts, it would be inequitable to simply conclude that the mere absence of the recordings indicates the failure of appellant to fulfill that responsibility.

Coppley v. Coppley, 128 N.C.App. 658, 663, 496 S.E.2d 611, 616 (citation, quotation marks, and brackets omitted), disc. review denied, 348 N.C. 281, 502 S.E.2d 846 (1998).

Additionally, we distinguish this case from In re L.B. and In re Clark, where this Court held that, where a transcript is unavailable, the appellant had a duty "to compile a narration of the evidence, i.e., reconstructing the testimony with the assistance of those persons present at the hearing." See L.B., 184 N.C.App. 442, 452, 646 S.E.2d 411, 417 (2007) ; Clark, 159 N.C.App. 75, 80, 582 S.E.2d 657, 660 (2003). Neither of those cases involved an ex parte hearing. There is practically no way that a defendant could reconstruct the testimony presented at an ex parte hearing in which he did not appear or participate. By requesting a copy of the recording for preparation of a transcript, defendant "has done all that [he] can" to ensure the record is complete. See Coppley, 128 N.C.App. at 663, 496 S.E.2d at 616. Accordingly, we must examine N.C. Gen.Stat. § 7A–198 to determine if the trial court erred in failing to record the ex parte DVPO hearing. See id., 496 S.E.2d at 616.

N.C. Gen.Stat. § 7A–198 provides in pertinent part as follows:

(a) Court-reporting personnel shall be utilized, if available, for the reporting of civil trials in the district court. If court reporters are not available in any county, electronic or other mechanical devices shall be provided by the Administrative Office of the Courts upon request of the chief district judge.

....

(c) If an electronic or other mechanical device is utilized, it shall be the duty of the clerk of the superior court or some other person designated by him to operate the device while a trial is in progress, and the clerk shall thereafter preserve the record thus produced, which may be transcribed, as required, by any person designated by the Administrative Office of the Courts. If stenotype, shorthand, or stenomask equipment is used, the original tapes, notes, discs, or other records are the property of the State, and the clerk shall keep them in his custody.

(d) Reporting of any trial may be waived by consent of the parties.

(e) Reporting will not be provided in trials before magistrates or in hearings to adjudicate and dispose of infractions in the district court.

....

(g) ...

In the event that the recording device in a civil trial conducted without a court reporter fails for any reason to provide a reasonably accurate record of the trial for purposes of appeal, then the trial judge shall grant a motion for a new trial made by a losing party whose request pursuant to this section to share the cost of a court reporter was not consented to by the opposing party.

N.C. Gen.Stat. § 7A–198 (2013). In evaluating whether the trial court should have recorded the ex parte DVPO hearing, we must determine whether the ex parte DVPO hearing constitutes a "civil trial" under N.C. Gen.Stat. § 7A–198.

In Miller v. Miller, this Court held that a hearing on a motion to modify a child custody order was a "civil trial" under N.C. Gen.Stat. § 7A–198. Miller, 92 N.C.App. 351, 354, 374 S.E.2d 467, 469 (1988). In Coppley, this Court held that a five-minute proceeding as to whether both parties agreed to a consent order was not a "civil trial" under N.C. Gen.Stat. § 7A–198. Coppley, 128 N.C.App. at 662, 496 S.E.2d at 615. But in Coppley, this Court also held that a later hearing on a motion to set aside the consent order pursuant to North...