IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-126
Filed: 17 November 2015
Mecklenburg County, No. 10 CVD 12874
ASHLEY A. COMSTOCK, Plaintiff
v.
CHRISTOPHER M. COMSTOCK, Defendant
Appeal by defendant from order entered 14 October 2014 by Judge David H.
Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 12
August 2015.
Krusch & Sellers, P.A., by Rebecca K. Watts, for plaintiff-appellee.
Christopher Comstock, pro se, for defendant-appellant.
North Carolina Coalition Against Domestic Violence, by Amily K. McCool,
Averett Law Offices, by D. Melissa Averett, and Horack, Talley, Pharr &
Lowndes, P.A., by Elizabeth James, for North Carolina Coalition Against
Domestic Violence, amicus curiae.
DAVIS, Judge.
Christopher M. Comstock (“Defendant”) appeals from the trial court’s 14
October 2014 order granting the motion of Ashley A. Comstock (“Plaintiff”) to renew
a domestic violence protective order (“DVPO”) previously entered against him. On
appeal, Defendant contends that the trial court lacked the authority to renew the
DVPO because when Plaintiff filed her motion seeking its renewal, she no longer
COMSTOCK V. COMSTOCK
Opinion of the Court
resided in the State of North Carolina. After careful review, we affirm the trial court’s
order.
Factual Background
Plaintiff and Defendant were married on 6 May 2001 and separated on 10 June
2010. The parties have two minor children together. On 3 September 2010, Plaintiff
sought a DVPO against Defendant, which was issued on 9 September 2010 by the
Honorable Ronald L. Chapman in Mecklenburg County District Court.
In the DVPO, the trial court concluded that Defendant had committed acts of
domestic violence against Plaintiff and that there was a danger of serious and
immediate injury to her. Specifically, the trial court made findings of fact concerning
an incident on 10 June 2010 where Defendant struck Plaintiff in the mouth,
lacerating the inside of her lip, and then continued assaulting Plaintiff “in the
whereabouts of the parties’ children.” The DVPO (1) granted Plaintiff possession of
the parties’ residence; (2) ordered Defendant not to “assault, threaten, abuse, follow,
harass . . . or interfere” with Plaintiff; (3) required Defendant to stay away from
Plaintiff’s residence and workplace; and (4) prohibited Defendant from possessing or
purchasing a firearm. The DVPO stated that it would remain in effect until 8
September 2011.
Defendant was held in contempt twice for violating the DVPO. First, on 3 May
2011, the trial court held Defendant in civil contempt for several instances of conduct
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toward Plaintiff that the court found were “intended solely to harass and intimidate
her.” These incidents included Defendant making statements to Plaintiff to indicate
that he was watching her, sitting in his car outside her residence, and almost striking
her car with his car during a meeting to exchange their children.
Second, on 15 August 2011, the trial court held Defendant in criminal contempt
for violating the DVPO by sending repeated harassing emails to Plaintiff’s work email
address despite Plaintiff’s numerous prior requests that he refrain from doing so. In
its 15 August 2011 order, the trial court noted Defendant had “testified that he knows
the [DVPO] better than anyone” and “looks at it all the time before he does things.”
The court determined that this testimony supported its conclusion that Defendant
“looks at the Court’s orders and tries to find the grey areas to justify his behavior to
aggravate and possibly intimidate [Plaintiff].” The trial court sentenced Defendant
to 30 days in the custody of the Mecklenburg County Jail and then suspended the
sentence on the condition that Defendant spend 9 nights in jail.
On 2 August 2011, prior to the expiration of the DVPO, Plaintiff filed a motion
to renew it. Plaintiff alleged that she was still in fear of Defendant and that he
continued to harass and threaten her. On 6 September 2011, the trial court entered
a consent order renewing the DVPO until 5 September 2012.
In the spring of 2012, Plaintiff and the minor children moved to Dallas, Texas.
On 20 August 2012, prior to the expiration of the 6 September 2011 DVPO renewal
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order, Plaintiff filed another motion to renew the DVPO. The trial court granted
Plaintiff’s motion, renewing the DVPO by order entered 22 March 2013 based on its
determination that there was good cause for the renewal in light of the fact that
Plaintiff continued to be in legitimate fear of Defendant. The 22 March 2013 order
renewed the DVPO until 5 September 2014.
On 4 September 2014, Plaintiff sought a third renewal of the DVPO, asserting
that she was “still very afraid of the Defendant” and that she and Defendant were
“still involved in ongoing domestic litigation and [she] believe[d] that the Defendant
[was] very angry with [her].” Plaintiff stated in her motion that Defendant had
showed their son a gun he possessed and “made statements indicating that he was
going to kill [her].” On 14 October 2014, the Honorable David H. Strickland entered
an order (“the 14 October Order”) renewing the DVPO against Defendant until 14
October 2016. Defendant filed a timely notice of appeal from the 14 October Order.
Analysis
Defendant’s primary argument on appeal is that the trial court’s entry of the
14 October Order exceeded the scope of its authority under N.C. Gen. Stat. §§ 50B-2
and 50B-3 because Plaintiff was no longer a North Carolina resident. We disagree.
The issuance and renewal of DVPOs, the means for enforcing them, and the
penalties for their violation are governed by North Carolina’s Domestic Violence Act,
which is codified in Chapter 50B of the North Carolina General Statutes. When a
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party appeals a DVPO, this Court reviews the order 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.” Thomas v. Williams, ___ N.C.
App. ___, ___, 773 S.E.2d 900, 902 (2015) (citation omitted).
N.C. Gen. Stat. § 50B-2(a) addresses the requirements for initially obtaining a
DVPO and provides as follows:
Any person residing in this State may seek relief
under this Chapter by filing a civil action or by filing a
motion in any existing action filed under Chapter 50 of the
General Statutes alleging acts of domestic violence against
himself or herself or a minor child who resides with or is in
the custody of such person. Any aggrieved party entitled
to relief under this Chapter may file a civil action and
proceed pro se, without the assistance of legal counsel. The
district court division of the General Court of Justice shall
have original jurisdiction over actions instituted under this
Chapter. Any action for a domestic violence protective
order 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.
Attachments to the summons shall include the complaint,
notice of hearing, any temporary or ex parte order that has
been issued, and other papers through the appropriate law
enforcement agency where the defendant is to be served.
In compliance with the federal Violence Against Women
Act, no court costs or attorneys’ fees shall be assessed for
the filing, issuance, registration, or service of a protective
order or petition for a protective order or witness subpoena,
except as provided in G.S. 1A-1, Rule 11.
N.C. Gen. Stat. § 50B-2(a) (2013) (emphasis added).
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Thus, pursuant to the statute, a party seeking the initial entry of a DVPO —
either through the filing of a new action under Chapter 50B or the filing of a motion
in an existing Chapter 50 case — must reside in North Carolina. Id.
The renewal of a DVPO, conversely, is governed by a separate statutory
provision of the Domestic Violence Act — N.C. Gen. Stat. § 50B-3(b). N.C. Gen. Stat.
§ 50B-3(b) states, in pertinent part, as follows:
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 order that has
been previously renewed, upon a motion by the aggrieved
party filed before the expiration of the current order . . . .
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. . . .
N.C. Gen. Stat. § 50B-3(b) (2013).
In the present case, the initial DVPO against Defendant was entered on 9
September 2010 following Plaintiff’s filing of a motion in the cause for a DVPO and
for emergency child custody in file number 10 CVD 12874, the parties’ existing
Chapter 50 case involving claims for divorce from bed and board, child custody, child
support, and equitable distribution. Plaintiff’s motion seeking the DVPO stated that
she was living in the parties’ former marital residence in Mecklenburg County, North
Carolina. Thus, Plaintiff was clearly a “person residing in this State” at the time she
initially sought the entry of the DVPO against Defendant, and the trial court
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therefore had jurisdiction to issue the DVPO. N.C. Gen. Stat. § 50B-2. Since that
time, Plaintiff has sought three renewals of the DVPO.
Unlike N.C. Gen. Stat. § 50B-2, N.C. Gen. Stat. § 50B-3(b) contains no
residency requirement for the renewal of a DVPO. “It is well established that in order
to determine the legislature’s intent, statutory provisions concerning the same
subject matter must be construed together and harmonized to give effect to each.”
AH N.C. Owner LLC v. N.C. Dep’t of Health & Human Servs., ___ N.C. App. ___, ___,
771 S.E.2d 537, 548 (2015). Where, as here, the General Assembly “includes
particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that [the legislative body] acts intentionally and
purposely in the disparate inclusion or exclusion.” Id. at ___, 771 S.E.2d at 548-49
(citation, quotation marks, and alterations omitted). Thus, the inclusion of a
residency requirement in the statutory provision governing the initial issuance of a
DVPO coupled with the omission of such a requirement in the statute authorizing the
renewal of a DVPO demonstrates a legislative intent to permit such a renewal
regardless of whether the moving party remains a North Carolina resident.
We therefore hold that based on the application of well-settled rules of
statutory interpretation, the moving party’s continued residency within the State of
North Carolina is not a jurisdictional prerequisite for obtaining the renewal of an
existing DVPO. Indeed, the only jurisdictional requirement contained within N.C.
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Gen. Stat. § 50B-3(b) is that a party seeking the renewal of a DVPO file such a motion
before the expiration of the existing order. N.C. Gen. Stat. § 50B-3(b); see also Rudder
v. Rudder, ___ N.C. App. ___, ___, 759 S.E.2d 321, 329 (2014) (noting that “the motion
for renewal [of a DVPO] must be filed before the expiration of the existing order”).
Consequently, because Plaintiff filed her motion to renew the DVPO on 4 September
2014 — the day before it was set to expire — the trial court had the authority to renew
the order as long as it determined that good cause existed to do so.
In the 14 October Order, the trial court determined that there was, in fact,
good cause to renew the DVPO based on its findings regarding Plaintiff’s continued
fear of Defendant and Defendant’s past violations of the DVPO. See Forehand v.
Forehand, ___ N.C. App. ___, ___, 767 S.E.2d 125, 128-29 (2014) (holding that
defendant’s prior conduct resulting in issuance of initial DVPO may serve as basis for
trial court’s finding of good cause for renewal). Defendant has not specifically
challenged these findings, and as a result, they are binding on appeal. Balawejder v.
Balawejder, 216 N.C. App. 301, 312, 721 S.E.2d 679, 686 (2011). Nor has he argued
that these findings were insufficient to support the trial court’s conclusion that
renewal of the DVPO was proper.1 We therefore hold that the trial court possessed
1 Because of our holding that the North Carolina Domestic Violence Act imposes no residency
requirement on an aggrieved party seeking to renew a DVPO, Defendant’s final argument — that the
trial court erred by failing to make findings of fact on the issue of Plaintiff’s residency — is likewise
without merit. See Fortis Corp. v. Ne. Forest Prods., 68 N.C. App. 752, 753, 315 S.E.2d 537, 538 (1984)
(“The general rule is that in making findings of fact, the trial court is required only to make brief,
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Opinion of the Court
the authority pursuant to N.C. Gen. Stat. § 50B-3(b) to renew the DVPO against
Defendant, and we affirm the trial court’s 14 October Order.2
Conclusion
For the reasons stated above, we affirm.
AFFIRMED.
Chief Judge McGEE and Judge HUNTER, JR. concur.
pertinent and definite findings and conclusions about the matters in issue, but need not make a finding
on every issue requested.” (emphasis added)).
2 Defendant also makes a cursory reference in his brief to his belief that the trial court
“seemingly . . . extended [the DVPO] beyond the two (2) year limitation” set forth in N.C. Gen. Stat. §
50B-3(b) by setting the renewed DVPO to expire two years after the date of the hearing on Plaintiff’s
renewal motion rather than two years after the expiration date of the prior DVPO. In the event that
Defendant intended to claim error as to this portion of the 14 October Order, we deem the issue
abandoned because he offers no actual substantive argument with regard to this issue. See N.C.R.
App. P. 28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or argument
is stated, will be taken as abandoned.”).
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