Wornstaff v. Wornstaff

TYSON, Judge

dissenting.

The majority’s opinion affirms the domestic violence protective order entered against defendant. This holding ignores the trial court’s failure to enter required findings of fact to support its conclusion of law. I vote to reverse the trial court’s order and respectfully dissent.

I. Standard of Review

“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 *521trial [court].’ ” Brandon v. Brandon, 132 N.C. App. 646, 651, 513 S.E.2d 589, 593 (1999) (quoting Repair Co. v. Morris & Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968)). “The trial [court]’s findings ‘turn in large part on the credibility of the witnesses, [and] must be given great deference by this Court.’ ” Id. at 652, 513 S.E.2d at 593 (quoting State v. Sessoms, 119 N.C. App. 1, 6, 458 S.E.2d 200, 203 (1995), aff’d per curiam, 342 N.C. 892, 467 S.E.2d 243, cert. denied, 519 U.S. 873, 136 L. Ed. 2d 129 (1996)). “[W]here the trial court’s findings of fact are supported by competent evidence, they are binding on appeal.” Id. (citing Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275, cert. denied, 303 N.C. 180, 280 S.E.2d 452 (1981)). The trial court’s “conclusions of law are reviewable de novo on appeal.” Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).

If the findings of fact do not support the trial court’s conclusions of law, the order must be reversed. Woodring v. Woodring, 164 N.C. App. 588, 593, 596 S.E.2d 370, 374 (2004); see Brandon, 132 N.C. App. at 654, 513 S.E.2d at 594 (reversing domestic violence protective order because the trial court’s findings of fact fáiled to support its conclusions of law).

II. Domestic Violence Protective Order

Defendant contends insufficient evidence shows his conduct constituted continued harassment to inflict substantial emotional distress on plaintiff. I agree.

“A trial court may grant a protective order ‘to bring about the cessation of acts of domestic violence.’ ” Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001) (quoting N.C. Gen. Stat. § 50B-3(a)). Domestic violence is defined as:

(a) ... the commission of one or more of the following acts upon an aggrieved party . . . :
(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. 14-277.3, that rises to such a level as to inflict substantial emotional distress; or
*522(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.

N.C. Gen. Stat. § 50B-l(a)(l)-(3) (2005) (emphasis supplied).

Under N.C. Gen. Stat. § 14-277.3(c) (2005), “harassment” is defined as “knowing conduct. . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate puipose.” “Torment” is defined as, “[t]o annoy, pester, or harass.” American Heritage College Dictionary 1428 (3rd ed. 1997). “Terrorize” is defined as, “[t]o fill or overpower with terror; terrify.” American Heritage College Dictionary 1401 (3rd ed. 1997). “Terrify” is defined as, “[t]o fill with terror; make deeply afraid; alarm.” American Heritage College Dictionary 1400 (3rd ed. 1997); see State v. Watson, 169 N.C. App. 331, 338, 610 S.E.2d 472, 477 (2005) (upheld stalking conviction when the defendant became “very clingy and possessive,” called the victim multiple times, and accused the victim of making sexual advances to her); see also State v. Thompson, 157 N.C. App. 638, 643, 580 S.E.2d 9, 13 (2003) (the defendant caused the victim substantial emotional distress when the defendant stated he was engaged in “psychological warfare” against the victim and stated that he intended to “buy two guns, and . . . blow away some Emerald Isle police that had been harassing him, [the victim], and bum the pier down.”).

Plaintiff instituted the civil action for a domestic violence protective order and bears the burden of proof. See N.C. Gen. Stat. § 50B-2(a) (2005) (any person residing in North Carolina may seek relief by filing a civil action alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person).

“The test for whether the aggrieved party has been placed ‘in fear of imminent serious bodily injury’ is subjective; thus the trial court must find as fact the aggrieved party ‘actually feared’ imminent serious bodily injury.” Smith, 145 N.C. App. at 437, 549 S.E.2d at 914 (quoting Brandon, 132 N.C. App. at 654, 513 S.E.2d at 595 (reversing domestic violence protective order because findings that the defendant’s conduct caused the plaintiff to “feel uncomfortable” failed to support a conclusion the defendant placed the plaintiff in fear)). “[W]here the trial court finds that a plaintiff is actually subjectively in fear ... an act of domestic violence has occurred pursuant to section 50B-l(a)(2).” Brandon, 132 N.C. App. at 654-55, 513 S.E.2d at 595 (reversing domestic violence protective order because trial court *523failed to enter findings regarding the plaintiff’s subjective fear of imminent serious bodily injury).

The trial court entered findings that on 31 July 2005, defendant “placed [plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress by yelling at plaintiff at the [T]rading [P]ost, banging the stapler on the counter, throwing a water bottle in her direction and refusing to leave during the late night hours.” The trial court failed to enter any findings of fact regarding plaintiffs “fear of continued harassment” and her “substantial emotional distress.”

The trial court’s order findings of fact only address defendant’s conduct on solely one occasion. The trial court’s failure to find plaintiff actually feared defendant would continuously harass or inflict substantial emotional distress on her does not support the trial court’s conclusion of law that defendant committed acts of domestic violence against plaintiff.

Undisputed evidence shows: (1) defendant’s conduct was not continuous because it occurred only on 31 July 2005; (2) defendant’s conduct occurred at defendant and plaintiff’s jointly-owned business where defendant had a right to be arid after plaintiff came to the business; (3) defendant’s conduct occurred in the presence of a law enforcement officer; (4) defendant did not threaten plaintiff when he asked her, “would you like to hurt me? Would you like to kill me and hit me? Would that make you feel better?;” (5) defendant banged a stapler on the desk because a staple was jammed; (6) defendant threw a half-empty water bottle in the direction of a trash can and plaintiff; and (7) plaintiff attempted to block defendant’s exit from the jointly owned business. Plaintiff failed to present any evidence she actually feared continued harassment by defendant or that she suffered substantial emotional distress.

The trial court’s order contains no findings regarding plaintiff’s actual fear of continued harassment by defendant or that he inflicted substantial emotional distress. In the absence of these findings of fact, the trial court’s conclusion of law that defendant committed acts of domestic violence as defined by the statute against plaintiff is unsupported.

III. Conclusion

The record fails to contain competent evidence, and the trial court failed to enter any findings of fact to show plaintiff actually *524feared. continued harassment or that she suffered substantial emotional distress as defined in the statute. The trial court’s conclusion of law that defendant committed acts of domestic violence is not supported by the evidence plaintiff presented or by the findings of fact contained in its order. I vote to reverse the domestic violence protective order and respectfully dissent.