Henderson v. Henderson

NO. COA13-843

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

ALISA G. HENDERSON,
Plaintiff,

v. Wake County
No. 13 CVD 1691
JASON JORDAN HENDERSON,
Defendant.

Appeal by Defendant from Orders entered 8 February 2013 by

Judge Ned W. Mangum, 18 and 20 February 2013 by Judge Robert B.

Rader, and 18 April 2013 by Judge Margaret Eagles in Wake County

District Court. Heard in the Court of Appeals 22 January 2014.

Cranfill Sumner & Hartzog LLP, by M. Denisse Gonzalez, for
Plaintiff.

Edmundson & Burnette, L.L.P., by James T. Duckworth, III,
for Defendant.

STEPHENS, Judge.

Factual Background and Procedural History

This case arises from the filing of a complaint for a

domestic violence protective order (“DVPO”) by Plaintiff Alisa

G. Henderson. The complaint was filed on 8 February 2013 and

alleged that Plaintiff’s former spouse, Defendant Jason Jordan

Henderson, intentionally caused bodily injury to the parties’
 -2-
children, both girls, by frequently spooning with them in his

underwear, grabbing their buttocks, placing cameras in their

rooms while they were dressing, and beating them with belts, his

hands, and a wooden spoon while other children were forced to

watch. The complaint also asserted that Defendant placed the

children in actual fear of imminent serious bodily injury by

cursing at and threatening the children, allowing a friend to

offer alcohol to one of the children, and becoming intoxicated

to the point of falling over. Given these allegations, the trial

court issued a temporary, ex parte DVPO on 8 February 2013. The

ex parte DVPO was effective through 18 February 2013, and a

hearing was set for the same date. Defendant received notice of

the entering of the ex parte DVPO and the 18 February 2013

hearing. Therein, Defendant was informed that the purpose of the

hearing was to determine “whether the [o]rder will be

continued.”

Evidence presented at the hearing tended to show that

Plaintiff and Defendant are divorced with two daughters, Eliza

and Anna.1 At the time of the hearing, Eliza was fourteen and

Anna was eleven. The parties shared joint custody of the

children before the DVPO was issued. Both parties are now re-

1
Pseudonyms are used for the protection of the juveniles.
 -3-
married, and Defendant has two daughters from his current

marriage.

According to a social worker at the Wake County Division of

Social Services (“DSS”), DSS received a report on 8 February

2013 alleging a number of instances of misconduct by Defendant.

At the time of the hearing, the allegations had not been

substantiated. Nonetheless, DSS had implemented a safety plan

for the children. The children would stay with Plaintiff and

have no unsupervised contact with Defendant.

At the close of the hearing, the trial court found that

“there have been acts that constitute domestic violence.” Thus,

the court entered a DVPO for a period of one year, ordering

Defendant, inter alia, to abide by the DSS safety plan and

refrain from any unsupervised contact with Eliza and Anna during

that period. A written DVPO was filed the same day,

memorializing the court’s oral pronouncement. An amended DVPO

was filed two days later, on 20 February 2013, providing that,

as a law enforcement officer, Defendant may possess or use a

firearm for official use.

On 15 March 2013, Defendant filed notice of appeal from the

trial court’s 8, 18, and 20 February 2013 orders. That same day,

Defendant filed a motion to vacate or set aside the DVPO under
 -4-
Rule 60(b) of the North Carolina Rules of Civil Procedure. The

trial court denied Defendant’s motion by order filed 28 March

2013. On 18 April 2013, the trial court filed a second, written

order denying Defendant’s motion to vacate. The court determined

that it retained jurisdiction over Defendant’s motion pursuant

to Rule 60(b), despite the fact that Defendant had already filed

his notice of appeal of the DVPO orders. The court concluded

that Defendant was not entitled to relief pursuant to Rule

60(b)(4) or (6) because the DVPO was not void and because

“Defendant was unable to show that any extraordinary

circumstances exist or that justice demands for the DVPO to be

vacated.” Defendant also appealed from that order.

Discussion

On appeal, Defendant argues that the DVPO and amended DVPO

are void because the trial court acted in excess of its

jurisdiction. Therefore, Defendant asserts, the trial court

erred in denying his Rule 60(b) motion to vacate. Alternatively,

Defendant contends that the trial court’s findings of fact are

not supported by competent evidence and, thus, do not support

its conclusion that Defendant committed acts of domestic

violence against the children and put them in serious and

immediate danger of injury. We affirm.
 -5-
I. Subject Matter Jurisdiction

Defendant first argues that the trial court lacked subject

matter jurisdiction to enter the DVPO because the court (1)

failed to follow statutory procedure by not allowing Defendant

10 days following service of the summons and complaint to file

an answer, and (2) held the DVPO hearing on the merits rather

than for the purpose of simply continuing the ex parte order. We

disagree.

“Where jurisdiction is statutory and the [l]egislature

requires the [trial court] to exercise its jurisdiction in a

certain manner, to follow a certain procedure, or otherwise

subjects the [c]ourt to certain limitations, an act of the

[c]ourt beyond these limits is in excess of its jurisdiction.”

Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975).

“Whether a trial court has subject[ ]matter jurisdiction is a

question of law, reviewed de novo on appeal.” McKoy v. McKoy,

202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (italics

added).

(1) Time to File an Answer

Section 50B-2 of the North Carolina General Statutes

applies to the institution of civil actions, motions for

emergency relief, temporary orders, and temporary custody in
 -6-
domestic violence cases. N.C. Gen. Stat. § 50B-2 (2013).

Relevant to this appeal, subsections (a) and (c) provide as

follows:

(a) . . . Any action for a [DVPO] requires
that a summons be issued and served. The
summons issued pursuant to this Chapter
shall require the defendant to answer within
10 days of the date of service. . . .

. . .

(c) Ex Parte Orders. —

. . .

(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. . . .

. . .

(7) Upon the issuance of an ex parte
order under this subsection, if the
party is proceeding pro se, 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, order[,] and other papers
through the appropriate law
enforcement agency where the
defendant is to be served.
 -7-

N.C. Gen. Stat. § 50B-2 (italics added). Here, Defendant was

served with his summons on 12 February 2013. On appeal,

Defendant contends that the trial court violated subsection (a)

and, therefore, exceeded its jurisdiction because he was

required to appear for the hearing on 18 February 2013,

depriving him of a full 10 days to file his answer. We disagree.

“[T]he Rules of Civil Procedure apply to actions under

Chapter 50B, except to the extent that a differing procedure is

prescribed by statute.” Hensey v. Hennessy, 201 N.C. App. 56,

62, 685 S.E.2d 541, 546 (2009) (citation and internal quotation

marks omitted). Relevant to this case, section 50B-2 sets forth

specialized procedures to “deal with issuance of . . . ex parte

DVPOs,” which are distinct from those for issuing temporary

restraining orders. Id. at 63, 685 S.E.2d at 546 (italics

added). Instead, “[t]he procedures under [section] 50B-2 are

intended to provide a method for trial court judges or

magistrates to quickly provide protection from the risk of acts

of domestic violence by means of a process which is readily

accessible to pro se complainants.” Id. at 63, 685 S.E.2d at

546–47. Moreover,

in construing statutes[,] courts normally
adopt an interpretation which will avoid
absurd or bizarre consequences, the
 -8-
presumption being that the legislature acted
in accordance with reason and common sense
and did not intend untoward results.
Accordingly, an unnecessary implication
arising from one statutory section,
inconsistent with the express terms of
another on the same subject, yields to the
expressed intent.

Romulus v. Romulus, 216 N.C. App. 28, 34, 715 S.E.2d 889, 893

(2011) (citation omitted). Similarly, the words in a statute

“must be interpreted in context so as to render them harmonious

with the intent and tenor of the entire statute and must be

accorded the meaning which harmonizes with the other modifying

provisions so as to give effect to the reason and purpose of the

law.” Underwood v. Howland, 274 N.C. 473, 479, 164 S.E.2d 2, 7

(1968).

Defendant’s contention that he has the right to a period of

10 days in which to file his answer is inconsistent with

subsection 50B-2(c), which explicitly pertains to “[e]x [p]arte

[o]rders.” N.C. Gen. Stat. § 50B-2(c) (italics added).

Subsection (c)(5) states unequivocally that a hearing on an ex

parte DVPO must be held “within 10 days” of the issuance of the

DVPO or “within seven days” of the date of service of process,

whichever is later. N.C. Gen Stat. § 50B-2(c)(5). Subsection

(c)(7) clarifies that, when the complaining party is proceeding

pro se, the clerk must set a hearing date “within the time
 -9-
periods provided in this subsection.” N.C. Gen. Stat. § 50B-

2(c)(7). Accordingly, if service of process occurs even one day

after the issuance of an ex parte DVPO, the subsequent hearing

must occur before the 10-day period of time within which

Defendant might otherwise be allowed to answer. To interpret

subsection (a) according to Defendant’s logic would strip

subsections (c)(5) and (7) of any rational construction. We

decline Defendant’s invitation to do so.

As we noted in Hensey, the “fundamental nature and purpose

of an ex parte DVPO” is that it must be “entered on relatively

short notice in order to address a situation in which quick

action is needed . . . to avert a threat of imminent harm.” 201

N.C. App. at 63, 685 S.E.2d at 547. Similarly, the hearing on

the ex parte DVPO must be conducted quickly in order to ensure

that the rights of both parties, the complainant and the

respondent, are not infringed. Subsection (c) encapsulates this

principle by ensuring that both parties are able to present

their positions to the trial court in a timely manner. To the

extent that subsection (a) might otherwise suggest that the

defendant has a longer period of time in which to answer,2

2
We do not hold that subsection (a) gives a defendant in a
section 50B case the absolute right to a full 10 days in which
 -10-
subsection (c) supersedes it by mandating the time limits for

the court to conduct the hearing after the issuance of an ex

parte DVPO. See N.C. Gen. Stat. § 50B-2. In the circumstance in

which, as here, the hearing on the ex parte DVPO must be held

before the expiration of 10 days after service of process on the

defendant, the defendant is required to answer, if at all,

within the period of time leading up to the hearing as

prescribed by subsection (c)(5).

Here, the ex parte DVPO was issued on 8 February 2013, and

Defendant was served with a summons and notice of the hearing on

12 February 2013. Pursuant to section 50B-2(c), the hearing was

set to occur within seven days of the date of service of process

and within 10 days of the date of the issuance of the order, on

18 February 2013. Following service of process, Defendant had at

least five days in which to submit a formal, written answer. At

the hearing, Defendant had the opportunity to further respond to

Plaintiff’s allegations. He was permitted to appear and testify

despite the fact that he had not filed an answer. This comports

with section 50B-2. Accordingly, Defendant’s argument is

overruled.

to file an answer. On the contrary, we conclude that the statute
gives him no more than 10 days to answer.
 -11-
(2) The Purpose of the DVPO Hearing

Defendant also argues that the trial court exceeded its

jurisdiction by holding a hearing on whether to issue a DVPO.

Specifically, Defendant asserts that this hearing was not held

in accordance with the notice he received, which stated that the

purpose of the hearing was to determine whether the ex parte

order should be continued. Citing case law which prohibits the

court from entering a permanent injunction during a hearing on a

temporary restraining order (“TRO”), Defendant contends that the

“express, unambiguous language” of the notice informed him that

“the hearing is not to decide the claim on the merits; rather

the hearing’s function is to determine whether the ex parte

order should be continued in effect until a future hearing, when

[the] plaintiff’s claims . . . would be decided.” (Certain

italics added). We disagree.

As discussed in Hensey, the procedures for ex parte DVPOs

are distinct from the procedures for TROs. 201 N.C. App. at 63,

685 S.E.2d at 546. Defendant’s attempt to liken this case to one

involving a TRO or a permanent injunction is misplaced. The

process of issuing an ex parte DVPO is completed once the trial

court determines that the complainant, alone, has alleged

sufficient facts to show a “danger of acts of domestic
 -12-
violence.” See id. at 65, 685 S.E.2d at 548. It is nonsensical

to suggest that a hearing involving both parties could possibly

be for the purpose of continuing an ex parte DVPO. In accordance

with the term “ex parte,”3 such orders are not intended to be

issued with input from both sides. Therefore, a hearing to

determine whether to continue the trial court’s order, notice of

which must be given to the opposing party, cannot be a hearing

on whether to continue the ex parte DVPO. Instead, it must be a

hearing to determine whether the trial court’s protective order

should be continued beyond the temporary time frame of the ex

parte DVPO.

Defendant’s argument that the trial court lacked

jurisdiction to enter the 18 February 2013 order and 20 February

2013 amended order is overruled. The trial court did not exceed

its jurisdiction in entering those orders. Accordingly,

Defendant’s argument that the trial court erred in denying his

3
“Ex parte” means “[d]one or made at the instance and for the
benefit of one party only, and without notice to, or argument
by, any person adversely interested; of or relating to court
action taken by one party without notice to the other, usu[ally]
for temporary or emergency relief[.]” Black’s Law Dictionary 657
(9th ed. 2009) (emphasis added).
 -13-
Rule 60(b) motion to vacate the DVPO for lack of jurisdiction is

also overruled.4

II. The Trial Court’s Findings and Conclusions

Alternatively, Defendant asserts that the trial court’s 18

February 2013 DVPO and 20 February 2013 amended DVPO must be

reversed because certain of the court’s findings of fact are not

based on competent evidence and, without those findings, the

trial court’s conclusions of law are improper. Again, we

disagree.

“The standard of review on appeal from a judgment entered

after a non-jury trial is whether there is competent evidence to

support the trial court’s findings of fact and whether the

findings support the conclusions of law and ensuing judgment.”

Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176

(citation and internal quotation marks omitted), disc. review

denied, 356 N.C. 434, 572 S.E.2d 428 (2002). The trial court

made the following relevant findings of fact in the challenged

orders:

3. On . . . Jan. 5, 2013, . . . [D]efendant

4
Defendant’s argument that the trial court erred by denying his
Rule 60(b) motion to vacate is based entirely on his argument
that the trial court lacked jurisdiction to enter the 18 and 20
February 2013 orders.
 -14-
a. attempted to cause . . . bodily
injury to . . . [the children;]

b. placed in fear of imminent serious
bodily injury . . . a member of the
plaintiff’s family[;]

. . .

d. committed an act defined by [N.C.
Gen. Stat. §] 14-[27.5A (sexual battery)]
against the [children] by BECOMING EXTREMELY
INTOXICATED WHILE CARING FOR THE CHILDREN
AND ENGAGED IN INAPPROPRIATE CONTACT,
CHILDREN DISCLOSED PRIOR INCIDENTS OF
PHYSICAL AND VERBAL ABUSE INCLUDING HITTING
W/A BELT AND THREATENING TO KNOCK THEIR
TEETH DOWN THEIR THROAT. ALSO, [DEFENDANT]
INAPPROPRIATELY SQUEEZED BUTTOCKS OF MINOR
DAUGHTER. CONDUCT HAS RESULTED IN EMOTIONAL
HARM TO CHILDREN RESULTING IN THREATS OF
SELF[-]HARM.

Based upon those findings, the court concluded that:

2. . . . [D]efendant has committed acts of
domestic violence against the minor
child(ren) residing with or in the custody
of . . . [P]laintiff.

3. There is a danger of serious and
immediate injury to the minor
child(ren). . . .

Defendant argues that findings 3(a), 3(b), and 3(d) are not

supported by the evidence because they are based on statements

made by the children to Plaintiff and the children’s

psychiatrist in the context of an ongoing DSS investigation. For

support, Defendant cites Burress v. Burress, where we stated
 -15-
that the “results” of a DSS investigation might be relevant to

the issue of domestic violence, but the mere existence of the

investigation is not. 195 N.C. App. 447, 450, 672 S.E.2d 732,

734 (2009). Defendant contends that, as in Burress, the evidence

concerning the children’s allegations is irrelevant because it

stems from “reports of abuse,” not the “results” of a DSS

investigation. Defendant also asserts that Plaintiff’s testimony

is not competent because it did not reference specific dates of

the acts at issue. We are unpersuaded.

Plaintiff offered the following pertinent testimony at

trial:

[PLAINTIFF]: [Eliza] went to her . . .
psychiatrist appointment and told of drunken
episodes that happened in the house in which
there were seven children in the house; two
of which were my children.

And . . . [Defendant] and a friend offered
my daughter alcohol. She did not drink it,
but it ended up with the one man passed out
on the floor; my ex-husband in a drunken
stupor.

[My daughter] asked him, “What do I look
like to you?” And he said, “You look like
[a] n-i-g-g-e-r.” And then spilled alcohol
on the floor; made [Eliza] clean it up:
“Clean this s-h-i-t up.” . . .

. . .

[My daughters] have actually exhibited self-
harm such as cutting themselves because
 -16-
. . . the discipline of [Defendant] is so
strict and strong that when he disciplines
them, they express wanting to kill
themselves and cutting themselves.

. . .

JUDGE . . . : All right. So this incident
that you spoke of when they were — when he
was intoxicated —

[PLAINTIFF]: Yes, sir.

JUDGE . . . : — and had another man in the
house, when was this?

[PLAINTIFF]: It was January 5th. But there’s
been ongoing over-the-top abuse: spankings
with belts, one much — the younger child was
made to stand there and — in front — he had
all three children sit down on the couch[]
and said, “This is what happens when you
forget your agenda at school.” And spanked
her with a belt in front of all three
children.

He curses at . . . them. He yells at them.
He screams at them. . . .

JUDGE . . . : All right. Now, as I
understand it, there were more allegations
than what you’ve just told me in your —

[PLAINTIFF]: Yes, sir. Yes, sir. There is
the spooning incident that happened with
[Eliza]. [Defendant] spooned with her in his
underwear. . . .

JUDGE . . . : When was that?

[PLAINTIFF]: [Eliza] said that he does it
very often. I don’t have a date.

JUDGE . . . : And then was there some —
 -17-
you’ve also alleged some inappropriate
contact?

[PLAINTIFF]: Yes. He slaps her on the bottom
and squeezes her bottom, which I feel,
obviously, very inappropriate for a
14[-]year[-]old or even 11[-]year[-]old
girls.

JUDGE . . . : All right. And you said there
were threats of violence or extensive
violence? Was it — physical violence?

[PLAINTIFF]: Yes. [Defendant] threatens, “If
— if you tell what happens in my home — if
you tell family business or tell
daddy/daughter secrets,” he said in the
past, “I will knock your teeth down your
throat.”

JUDGE . . . : And what’s the most recent
time that that has happened?

[PLAINTIFF]: I don’t know. I know that it
happens quite often. My youngest actually
has told myself and the DSS worker that when
she — every time she sees a belt, she has
flashbacks, and she gets afraid.

She says she has nightmares every night and
headaches quite often, and she’s very
[emotionally] scarred.

. . .

[Regarding the intoxication incident, Eliza]
was very afraid, and she asked the friend,
“Do I need to call an ambulance for you?
What do I need to do?” ‘Cause he was laying
on the floor, talking out of his mind.
[Defendant] started speaking Spanish. He
doesn’t speak Spanish. This is according to
my daughter.
 -18-
And so, [Eliza] had to be responsible, while
these men were intoxicated, for all [seven]
children [who were in the house at the
time].

. . .

. . . May I say something else?

JUDGE . . . : Sure.

[PLAINTIFF]: Okay. After [Eliza] told the
psychiatrist about the incident, she said —
and she knew that she was going to make the
DSS report. She said, “Do I have to go back
to Dad’s?” She said, “Cause if I do, he’s
going to hurt me.”

Several times she has busted out into tears
because of fear of her father.

Testifying for himself, Defendant admitted becoming intoxicated,

getting sick, and throwing up while supervising the children on

January 5th, but asserted that he still “kn[ew] what was going

on around the house[.]” Defendant also admitted to cursing in

front of the children, yelling at them, and, approximately four

years before the hearing, spanking one of the children with a

belt until she began to make retching sounds.

Defendant’s admissions and Plaintiff’s testimony constitute

competent evidence to justify the trial court’s findings of

fact. Plaintiff testified to multiple circumstances in which

Defendant vigorously spanked the children, and Defendant

admitted to hitting one daughter until she made retching sounds.
 -19-
Plaintiff testified that Defendant threatened the children,

spooned with them, and squeezed their buttocks. According to

Plaintiff, this distressed the children, causing them to exhibit

self-harm and express an interest in suicide. Plaintiff

testified that Anna has nightmares every night, headaches on a

regular basis, and is now emotionally scarred. Plaintiff also

testified to an incident in which Defendant became intoxicated,

which Defendant admitted. On that occasion, according to

Plaintiff, Defendant was unable to stand or supervise the

children and began babbling in Spanish.

It does not matter that certain of these allegations were

also made in the context of DSS’s investigation. In Burress, we

found irrelevant the plaintiff’s testimony that “[DSS] was

investigating allegations of sexual abuse against the

plaintiff’s minor children by [the] defendant” because the mere

existence of a DSS investigation does not mean that domestic

violence has occurred. Id. at 450, 672 S.E.2d at 734. As no

evidence was presented in that case regarding what was revealed

by the investigation, however, we did not have the opportunity

to address whether statements made in the context of a DSS

investigation would also be irrelevant. See id. We hold that

they are not. To hold otherwise would create a conflict of
 -20-
interest in which the plaintiff in a domestic violence case is

incentivized to decline sharing information with DSS for fear of

having her testimony stricken at a subsequent DVPO hearing. We

decline to reach such a result here. Plaintiff testified to

statements made to her by her children about what they

experienced with Defendant.5 In addition, Plaintiff described her

personal observations of the adverse effects Defendant’s actions

have had on her daughters’ behavior and emotional health. The

fact that some of the children’s statements were also made to

DSS does not render the rest of Plaintiff’s testimony irrelevant

and incompetent. Accordingly, Defendant’s argument is overruled.

Moreover, Plaintiff’s inability to provide specific dates

with regard to certain of the incidents, which were largely

5
Defendant does not argue that Plaintiff’s testimony about
statements her daughters made directly to her is incompetent as
inadmissible hearsay. In addition, Defendant did not make any
objection on those grounds at the hearing. Therefore, any such
objection is waived, and Plaintiff’s testimony is not
incompetent in that respect. See In re Ivey, 156 N.C. App. 398,
403, 576 S.E.2d 386, 390 (2003) (holding that the respondent-
parents waived their argument that certain testimony constituted
inadmissible hearsay because they failed to object to the
testimony at the permanency planning hearing); see also In re
F.G.J., 200 N.C. App. 681, 693, 684 S.E.2d 745, 753 (2009)
(commenting that “no objection on hearsay grounds was made by
either parent [at the termination of parental rights hearing].
Therefore, any objection has been waived, and the testimony must
be considered competent evidence.”) (citation omitted); N.C.R.
App. P. 10(a)(1).
 -21-
described to her by her children, is not fatal. See State v.

Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984) (“We have

stated repeatedly that in the interests of justice and

recognizing that young children cannot be expected to be exact

regarding times and dates, a child’s uncertainty as to time or

date upon which the offense charged was committed goes to the

weight rather than the admissibility of the evidence.”).

Therefore, we hold that the trial court’s findings of fact in

the 18 February 2013 and 20 February 2013 orders are based on

competent evidence and, in turn, fully support its conclusions

of law. Accordingly, Defendant’s alternative argument is

overruled. The orders appealed from are

AFFIRMED.

Judges STEELMAN and DAVIS concur.