Rudder v. Rudder

NO. COA13-424

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

ELIZABETH McDUFFIE RUDDER,
Plaintiff,

v. Carteret County
No. 10 CVD 1577
WILLIAM OVERTON RUDDER,
Defendant.

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. Heard in the Court of

Appeals 23 September 2013.

No brief filed on behalf of plaintiff-appellee.

Wyrick Robbins Yates & Ponton, LLP, by Tobias S. Hampson,
for defendant-appellant.

GEER, Judge.

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
 -2-
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.

Facts

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
 -3-
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."1 (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."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
1
This order was on the form entitled "NOTICE OF HEARING ON
DOMESTIC VIOLENCE PROTECTIVE ORDER," AOC-CV-305, Rev. 6/2000
Administrative Office of the Courts.
2
This order was on the form entitled "ORDER CONTINUING
DOMESTIC VIOLENCE HEARING AND EX PARTE ORDER," AOC-CV-316, Rev.
12/04.
 -4-
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.
 -5-
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 DVPO3

3
N.C. Gen. Stat. § 50B-3 (2013) provides that "[p]rotective
orders entered pursuant to this Chapter shall be for a fixed
period of time not to exceed one year." We first note that this
subsection, taken in context, clearly refers only to a DVPO
entered after service of process and a hearing held after notice
to the defendant, even though the general term "protective
order" is used. N.C. Gen. Stat. § 50B-2 (2013) specifically
addresses "temporary orders" and provides for a limited duration
of an ex parte DVPO of 10 days, unless the ex parte order is
 -6-
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

continued by the trial court. We are, therefore, referring to
this DVPO as a "one-year DVPO" to distinguish it from the ex
parte DVPO, although we recognize that a DVPO entered after
service and notice to the defendant could be entered for a fixed
period of time less than one year.
 -7-
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 appealed both the ex parte DVPO and the

September 2012 DVPO to this Court.

Discussion

Initially, we note that the ex parte DVPO expired 4 June

2012, and the one-year DVPO was set to expire 28 September 2013,

five days after this case was heard by this Court. This appeal

is not, however, moot. See Smith v. Smith, 145 N.C. App. 434,

437, 549 S.E.2d 912, 914 (2001) (holding that defendant's appeal

of expired DVPO was not moot because of "'stigma that is likely

to attach to a person judicially determined to have committed

[domestic] abuse[]'" and "the continued legal significance of an

appeal of an expired domestic violence protective order"

(quoting Piper v. Layman, 125 Md. App. 745, 753, 726 A.2d 887,

891 (1999))).

As explained in Smith, "there are numerous non-legal

collateral consequences to entry of a domestic violence

protective order that render expired orders appealable. For

example, . . . 'a person applying for a job, a professional

license, a government position, admission to an academic

institution, or the like, may be asked about whether he or she
 -8-
has been the subject of a [domestic violence protective

order].'" Id. (quoting Piper, 125 Md. App. at 753, 726 A.2d at

891). We, therefore, may properly review both the ex parte DVPO

and the September 2012 DVPO.

I

In reviewing the ex parte DVPO entered 23 November 2010, we

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)

(quoting Burress v. Burress, 195 N.C. App. 447, 449-50, 672

S.E.2d 732, 734 (2009)).

Defendant argues (1) that the trial court's findings of

fact were insufficient to support its conclusion that "defendant

has committed acts of domestic violence against the plaintiff"

and (2) that specific facts do not support its conclusion that

"it clearly appears that there is a danger of acts of domestic

violence against the plaintiff." We disagree.

The trial court used pre-printed form AOC-CV-304, Rev.

8/09, entitled "EX PARTE DOMESTIC VIOLENCE ORDER OF PROTECTION"

for its order. The form contains 12 pre-printed "Additional
 -9-
Findings." Before each numbered finding is a box corresponding

to the finding as a whole. Some of the pre-printed findings

contain subparts with additional boxes to check, blank spaces to

fill in, or space to provide additional information.

In this case, the trial court made the following relevant

findings of fact by marking the boxes next to certain pre-

printed provisions and adding the information set out below in

italics:

[_] 2. That on . . . 11-01-2010, the
defendant

[x] a. . . . [x] intentionally
caused bodily injury to
[x] the plaintiff . . .

[x] b. placed in fear of
imminent serious bodily
injury [x] the plaintiff
[x] a member of the
plaintiff's family [x] a
member of the plaintiff's
household

[x] c. placed in fear of
continued harassment that
rises to such a level as
to inflict substantial
emotional distress [x] the
plaintiff [x] a member of
plaintiff's family [x] a
member of plaintiff's
household

. . . .

[x] 3. The defendant is in possession of,
owns or has access to firearms,
 -10-
ammunition, and gun permits
described below. . . .

The Defendant is in possession of
hundreds of firearms and
approximately 1000 boxes of
ammunition which are spread
through the marital residence.

[x] 4. The defendant

[x] a. . . . [x] threatened to
use a deadly weapon against the
[x] plaintiff . . .

[x] b. has a pattern of prior
conduct involving the . . . [x]
threatened use of violence with a
firearm against persons

[x] c. made threats to seriously
injure or kill the [x] plaintiff .
. .

. . . .

[x] e. inflicted serious injuries
upon the [x] plaintiff . . . in
that . . . :

Broken [sic] her rib.

(Emphasis added to indicate information added by trial court to

form.)

Defendant argues that by failing to mark the first box of

Finding 2, which corresponds to Finding 2 as a whole, the trial

court did not actually intend to make any of the findings marked

under paragraph 2. It is apparent, however, that this omission

was merely a clerical error.
 -11-
"'Clerical error' has been defined . . . as: 'An error

resulting from a minor mistake or inadvertence, esp. in writing

or copying something on the record, and not from judicial

reasoning or determination.'" State v. Jarman, 140 N.C. App.

198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black's Law

Dictionary 563 (7th ed. 1999)). Clerical errors include

mistakes such as inadvertently checking the wrong box on pre-

printed forms. See In re D.D.J., D.M.J., 177 N.C. App. 441,

444, 628 S.E.2d 808, 811 (2006).

Finding 2 on Form AOC-CV-304 corresponds to the definition

of domestic violence set out in N.C. Gen. Stat. § 50B-1(a),

which provides:

(a) Domestic violence means the
commission of one or more of the following
acts upon an aggrieved party or upon a minor
child residing with or in the custody of the
aggrieved party by a person with whom the
aggrieved party has or has had a personal
relationship, but does not include acts of
self-defense:

(1) Attempting to cause bodily
injury, or intentionally
causing bodily injury; or

(2) Placing the aggrieved party
or a member of the aggrieved
party's family or household
in fear of imminent serious
bodily injury or continued
harassment, as defined in
G.S. 14-277.3A, that rises to
such a level as to inflict
 -12-
substantial emotional
distress; or

(3) Committing any act defined in
G.S. 14-27.2 through G.S. 14-
27.7.

The statute thus specifies several alternative ways in which one

may commit an act of domestic violence.

The subparts of Finding 2 on Form AOC-CV-304 set out all

the possible alternative findings that could support a finding

of fact that the defendant committed an act of domestic

violence. The form allows the trial court to indicate which

alternatives apply by marking the relevant subparts. Thus, by

checking the box next to Finding 2, the trial court indicates an

ultimate finding of fact: that defendant committed an act of

domestic violence. By marking the boxes next to the subparts of

Finding 2, the trial court then provides more specific findings

regarding how the defendant committed an act of domestic

violence and against whom.

Here, the trial court provided the "date of most recent

conduct" in the first line of Finding 2 and marked the subparts

indicating what acts the defendant committed and against whom.

Additionally, the trial court concluded as a matter of law that

the defendant committed acts of domestic violence against the

plaintiff. Under these circumstances, it is apparent that the

trial court intended to mark the box next to Finding 2 and that
 -13-
its failure to do so was inadvertent and merely a clerical

error. The error should, however, be corrected on remand. See

State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696

(2008) ("When, on appeal, a clerical error is discovered in the

trial court's judgment or order, it is appropriate to remand the

case to the trial court for correction because of the importance

that the record 'speak the truth.'" (quoting State v. Linemann,

135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999))).

Defendant next argues that even if it is presumed that the

trial court intended to mark Finding 2, the trial court's

findings of fact are still insufficient. An ex parte DVPO may

be issued "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)(1). This Court has interpreted this provision to mean that

"in order to issue an ex parte DVPO, the trial court must make

findings of fact which include 'specific facts' which

demonstrate 'that there is a danger of acts of domestic violence

against the aggrieved party[.]'" Hensey, 201 N.C. App. at 61,

685 S.E.2d at 546 (quoting N.C. Gen. Stat. § 50B-2(c)).

Defendant argues that the ex parte DVPO in this case does not

contain the required "specific facts."
 -14-
In Hensey, the ex parte DVPO, which also was a pre-printed

form order, did not itself set forth specific findings of facts

in the DVPO, but rather appeared to incorporate by reference the

allegations of the complaint. Id. at 62, 685 S.E.2d at 546.

This Court concluded that "while it would be preferable for the

trial court to set forth the 'specific facts' which support its

order separately, instead of by reference to the complaint, the

ex parte DVPO, read in conjunction with plaintiff's complaint,

does provide sufficient information upon which we may review the

trial court's decision to issue the ex parte DVPO." Id. at 64,

685 S.E.2d at 547.

In reaching its conclusion, the Court in Hensey rejected

the defendant's argument that the ex parte DVPO must comply with

Rule 52 of the Rules of Civil Procedure, which requires that a

trial court sitting without a jury shall "'find the facts

specially.'" Id. at 62-63, 685 S.E.2d at 546-57. The Court

concluded that ex parte orders under N.C. Gen. Stat. § 50B-2

"need not contain findings and conclusions that fully satisfy

the requirements of [Rule 52]" because such a requirement "would

be inconsistent with the fundamental nature and purpose of an ex

parte DVPO, which is intended to be entered on relatively short

notice in order to address a situation in which quick action is
 -15-
needed in order to avert a threat of imminent harm." 201 N.C.

App. at 63, 685 S.E.2d at 547.

Here, in the space provided under Finding 2, the DVPO

neither includes specific facts nor references the allegations

of the complaint, although Finding 2 does specify the date of

the most recent conduct by defendant. In addition, however,

Finding 4 finds that defendant had threatened to use a deadly

weapon against plaintiff, had a pattern of prior conduct

involving the threatened use of violence with a firearm, had

made threats to seriously injure the plaintiff, and had

inflicted serious injuries on plaintiff by breaking her rib.

While defendant argues that Finding 4 does not indicate whether

defendant intentionally broke plaintiff's rib, that finding is

included in Finding 2.

We hold that the combination of Finding 2 and Finding 4 are

minimally adequate to supply the required "specific facts"

necessary to support the conclusion that the defendant committed

acts of domestic violence against the plaintiff and that "there

is a danger of acts of domestic violence against the plaintiff."

We, therefore, affirm the ex parte DVPO. We note, however, that

the better practice would be to include more specific facts

under Finding 2 explaining the basis for the ultimate findings

made by checking the boxes on the pre-printed form.
 -16-
II

Defendant next contends that the trial court erred by

entering the September 2012 DVPO when the ex parte DVPO had

expired after being in effect for more than a year. We agree.

In this case, the ex parte DVPO continued in effect for

more than 18 months until it expired on 4 June 2012. We

question whether the General Assembly intended for an ex parte

DVPO to continue in effect for this length of time based on

repeated continuances -- in this case, a total of 13. See N.C.

Gen. Stat. § 50B-2(c)(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 no more than 10 days unless all parties consent or

good cause is shown. The hearing shall have priority on the

court calendar."4 (Emphasis added)). We need not, however,

specifically address that issue in order to resolve this appeal.

The North Carolina Domestic Violence Act, set out in

Chapter 50B of the General Statutes, specifies the procedural
4
The emphasized portion of this provision was added 1
October 2012 and is applicable to actions and motions filed on
or after that date. 2012 N.C. Sess. Law 20 §§ 1, 3. Therefore,
it is not applicable to this case. Nevertheless, it is
indicative of the General Assembly's current intent to limit the
length of time an ex parte DVPO may continue in effect.
 -17-
framework for the issuance of DVPOs. The statute defines a

"protective order" as "any order entered pursuant to this

Chapter upon hearing by the court or consent of the parties."

N.C. Gen. Stat. § 50B-1(c). As this Court explained in State v.

Poole, ___ N.C. App. ___, ___, 745 S.E.2d 26, 32, appeal

dismissed and disc. review denied, ___ N.C. ___, 749 S.E.2d 885

(2013), because an ex parte DVPO is entered following a hearing,

the phrase "protective order" when used in Chapter 50B

encompasses both ex parte DVPOs and one-year DVPOs. Although

the types of protection the two kinds of orders can provide are

essentially the same, there are necessarily some procedural

differences between an ex parte DVPO and a one-year DVPO.

As noted in Hensey, an ex parte DVPO "is intended to be

entered on relatively short notice in order to address a

situation in which quick action is needed in order to avert a

threat of imminent harm." 201 N.C. App. at 63, 685 S.E.2d at

547. In contrast, the one-year DVPO is entered only after

notice to the defendant and an opportunity to participate in a

full adversarial hearing. Id. at 61, 685 S.E.2d at 545. It is

intended to address issues for a longer time period, although

normally not more than three years, with temporary custody

provisions limited to one year. See N.C. Gen. Stat. § 50B-3(b).
 -18-
Unfortunately, Chapter 50B does not clearly distinguish

between some of the characteristics of an ex parte order and a

DVPO entered after notice to the defendant and an opportunity

for a full adversarial hearing. However, reading the entire

Chapter in context, it is apparent that N.C. Gen. Stat. § 50B-2

addresses the procedure and time limitations for ex parte or

temporary orders, while the substantive protective provisions of

any type of protective order are addressed by N.C. Gen. Stat. §

50B-3, and the time limitations of the one-year DVPO are

addressed by N.C. Gen. Stat. § 50B-3(b).5

N.C. Gen. Stat. § 50B-3(b) specifies what relief a

"protective order" may grant and, with respect to the time

limitations for the one-year DVPO, provides:6

Protective orders entered pursuant to this
Chapter shall be for a fixed period of time
not to exceed one year. The court may renew
a protective order for a fixed period of
time not to exceed two years, including an
5
It would be absurd to read the provision of N.C. Gen. Stat.
§ 50B-3(b) that "protective orders entered pursuant to this
Chapter shall be for a fixed period of time not to exceed one
year" as applying to an emergency order under N.C. Gen. Stat. §
50B-2(b) or an ex parte order under N.C. Gen. Stat. § 50B-2(c),
since those sections include specific time requirements
applicable to those orders. It would seem obvious that the
statute would not permit the court to enter an ex parte order
that lasted for a full year. But, as noted above, N.C. Gen.
Stat. § 50B-1(c) (2013) also defines the term "protective order"
broadly, to include "any order entered pursuant to this Chapter
upon hearing by the court or consent of the parties."
6
The ex parte DVPO's time limitations are specifically
addressed by N.C. Gen. Stat. § 50B-2(b) and (c).
 -19-
order that previously has been renewed, upon
a motion by the aggrieved party filed before
the expiration of the current order;
provided, however, that a temporary award of
custody entered as part of a protective
order may not be renewed to extend a
temporary award of custody beyond the
maximum one-year period. The court may renew
a protective order for good cause. The
commission of an act as defined in G.S. 50B-
1(a) by the defendant after entry of the
current order is not required for an order
to be renewed.

In this case, we are addressing the plaintiff's request for

the trial court to enter a one-year DVPO based upon an ex parte

DVPO that had already remained in effect for more than a year

based upon continuances of the hearing. Even if we assume,

without deciding, that an ex parte DVPO may lawfully continue

for more than a year through the mechanism of repeated

continuances, in this case, the ex parte DVPO ultimately expired

on 4 June 2012 when no order was entered continuing the ex parte

DVPO in effect after that date.

We also note that N.C. Gen. Stat. § 50B-3(b) provides that

even for the renewal of a one-year DVPO, the motion for renewal

must be filed before the expiration of the existing order. When

the motion to renew is filed prior to expiration of the one-year

DVPO, the plaintiff must show "good cause" although the

plaintiff need not show commission of an additional act of

domestic violence after the entry of the original DVPO. This
 -20-
language implies that where even a one-year DVPO has expired,

the plaintiff would need to allege and prove commission of an

additional, more recent act of domestic violence to obtain a new

order. That is, the plaintiff can rely upon the original acts

that formed the basis for the issuance of the original ex parte

DVPO and/or one-year DVPO for a limited time. Of course, the

plaintiff is not prevented in any way from seeking a new DVPO in

the event of new and additional acts of domestic violence, but

the renewal and extensions of a DVPO based upon a particular act

are limited by the statute.

The DVPO at issue here is clearly and exclusively based

upon an act that occurred prior to the expiration of the ex

parte order. The orders continuing the hearing on the ex parte

order, including the one that set the matter for 4 June 2012,

had scheduled the case "for hearing for emergency relief

pursuant to G.S. 50B-2" –- and not for entry of an independent

order under N.C. Gen. Stat. § 50B-3. The orders referred back

to the original ex parte order by noting 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." Ultimately,

the ex parte order then expired by its own terms.

Applying N.C. Gen. Stat. § 50B-3(b), the ex parte DVPO had

already been in effect for more than one year (the maximum
 -21-
permissible length of time even for a DVPO entered upon a full

adversarial hearing under N.C. Gen. Stat. § 50B-2(c)(5)). We

also note that no one-year DVPO that was subject to renewal

under N.C. Gen. Stat. 50B-3 had ever been entered. Based upon

the orders entered continuing the ex parte DVPO and setting this

matter for hearing, upon expiration of the ex parte order after

more than a year, the trial court no longer had jurisdiction

under the original complaint to enter an order further extending

the DVPO.

We note that this situation is distinguished from a case in

which a plaintiff files a civil action or motion seeking a DVPO,

but either because the plaintiff did not request an immediate ex

parte order or because the trial court declined to issue an

immediate ex parte order, the trial court has not entered an ex

parte order and has scheduled a hearing upon the complaint or

motion to consider issuance of a DVPO after service of process

and notice of hearing to the defendant, under N.C. Gen. Stat. §

50B-2(b) (emphasis added):

A party may move the court for emergency
relief if he or she believes there is a
danger of serious and immediate injury to
himself or herself or a minor child. A
hearing on a motion for emergency relief,
where no ex parte order is entered, shall be
held after five days' notice of the hearing
to the other party or after five days from
the date of service of process on the other
party, whichever occurs first, provided,
 -22-
however, that no hearing shall be required
if the service of process is not completed
on the other party. If the party is
proceeding pro se and does not request an ex
parte hearing, the clerk shall set a date
for hearing and issue a notice of hearing
within the time periods provided in this
subsection, and shall effect service of the
summons, complaint, notice, and other papers
through the appropriate law enforcement
agency where the defendant is to be served.

In fact, Form AOC-CV-305, Rev. 6/2000 has pre-printed

language to provide notice of a hearing to the defendant in just

that situation:

2. A hearing will be held before a
district court judge at the date, time and
location indicated below. At that hearing
it will be determined whether emergency
relief in protecting the plaintiff and the
plaintiff's child(ren) should be granted.

This option was not checked in this case since an ex parte order

was entered, and the first option, as noted above, was checked

instead.

This case also does not present the issue whether a hearing

upon a domestic violence complaint or motion, when no ex parte

order was entered, could be continued repeatedly, even for more

than a year, and we do not address that situation. In the case

before us, plaintiff and the trial court proceeded as directed

by the ex parte order issued under N.C. Gen. Stat. § 50B-2(c).

As noted above, the ex parte DVPO was properly entered, remained

in effect for 18 months by serial continuances of the order, and
 -23-
then expired by its own terms. Thus, we hold that when an ex

parte DVPO expires beyond the time limitations of N.C. Gen.

Stat. § 50B-3(b) for a one-year DVPO without a motion to renew,

the trial court no longer has authority to enter an order

effectively further extending the expired DVPO, as the trial

court would also be unable to extend even a one-year DVPO in

this situation without a motion to renew.7

Because the trial court, in this case, lacked authority to

enter the September 2012 order after the ex parte DVPO expired

more than 18 months after its original entry, we vacate the

September 2012 DVPO and remand for a hearing on defendant's

motion for return of firearms. Because of our disposition of

this appeal, we need not address defendant's remaining arguments

regarding the September 2012 DVPO.

Affirmed in part, vacated in part, and remanded in part.

Chief Judge MARTIN and Judge STROUD concur.

7
As plaintiff here did not file a motion to renew under N.C.
Gen. Stat. § 50B-3(b), we do not address whether an ex parte
DVPO is actually subject to renewal in this manner, nor do we
mean to suggest that it could be, particularly given the
limitations of N.C. Gen. Stat. § 50B-2(c)(5).