1. Appeal and Error--domestic violence protective order--findings and evidence
insufficient--remand futile
Remand of a domestic violence protective order would be futile and the order was
reversed where the trial court failed to make findings and conclusions to support its order, but
the record contained no evidence which could support a conclusion that domestic violence
occurred.
2. Assault--domestic violence protective order--sufficiency of evidence
There was insufficient evidence to issue a domestic violence protective order under
N.C.G.S. § 50B-3(a) where the evidence showed at most that defendant entered plaintiff's trailer
and spilled pasta and spices on the floor. There was no evidence that defendant attempted to
cause or intentionally caused plaintiff bodily injury, placed him or any member of his family or
household in fear of imminent serious bodily injury, or committed any sexual offense.
Appeal by defendant from order filed 5 May 1998 by Judge
Jack E. Klass in Davidson County District Court. Heard in the
Court of Appeals 25 May 1999.
No brief for plaintiff-appellee.
Central Carolina Legal Services, Inc., by Andrea S. Kurtz,
for defendant-appellant.
GREENE, Judge.
Deborah Price (Defendant) appeals from the trial court's
order granting her husband Wesley Price's (Plaintiff) request for
a domestic violence protective order.
On 28 April 1998, Plaintiff filed a complaint seeking a
domestic violence protective order against Defendant. At the
trial, Plaintiff testified that: (1) on the weekend of 25 April
1998, he was away from his home, and someone dumped pasta and
spices on the floor of his living room and kitchen; (2) he
believed Defendant, his estranged wife, was the person whocommitted the act; (3) an individual named Jimmy, who lived with
him in his trailer, was home during the weekend; (4) Plaintiff
had placed some of Defendant's personal property on the porch
outside the trailer; and (5) Defendant had obtained a domestic
violence protective order against him in December 1997.
(See footnote 1)
Defendant admitted at the hearing that she approached the trailer
on the weekend in question in order to determine whether her
personal property had been left out on the porch, but did not
enter the trailer or spill pasta or spices on the floor of the
trailer. Defendant also testified she did not take any of her
personal property at that time. Defendant moved to dismiss the
case both at the close of Plaintiff's evidence and at the close
of all the evidence, but both motions were denied by the trial
court.
Following the hearing, the trial court entered a domestic
violence protective order on 5 May 1998: (1) ordering Defendant
to "stay away from [Plaintiff's] residence"; (2) authorizing a
law enforcement officer to arrest Defendant if the officer has
probable cause to believe she has violated the order; and (3)
specifying a date and time for Defendant to pick up her
belongings from Plaintiff. This order did not contain any
findings of fact or conclusions of law.
(See footnote 2)
The dispositive issue is whether sufficient evidence was
presented to justify the entry of the trial court's domestic
violence protective order.
Defendant contends the trial court erred by denying her
motion to dismiss and by failing to make findings of fact and
conclusions of law. We agree.
[1]Because the trial court failed to make findings of fact
and conclusions of law to support its order, this matter could be
remanded for the entry of a new order containing findings and
conclusions. Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185
(1980). The record, however, contains no evidence which could
support a conclusion that domestic violence, as defined in N.C.
Gen. Stat. § 50B-1, occurred, therefore remand, in this case,
would be futile. Arnold v. Charles Enterprises, 264 N.C. 92, 99,
141 S.E.2d 14, 19 (1965) (holding that although the trial court
omitted a material finding of fact which would ordinarily require
remand, remand would be futile because the party with the burden
of proof failed to offer any evidence in support of the finding).
[2]A court may grant a protective order to bring about the
cessation of any act of domestic violence. N.C.G.S. § 50B-3(a)
(1996). Domestic violence is defined as:
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 personwith 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
(3) Committing any act defined in G.S.
14-27.2 through G.S. 14-27.7.
N.C.G.S. § 50B-1(a) (Supp. 1998). Sections 14-27.2 through 14-
27.7 statutorily define rape and other criminal sexual offenses.
In this case, there is no evidence that Defendant attempted
to cause or intentionally caused Plaintiff bodily injury, placed
him or any member of his family or household in fear of imminent
serious bodily injury, or committed any sexual offense. At most,
the evidence shows Defendant entered Plaintiff's trailer and
spilled pasta and spices on the floor. The order, therefore,
must be reversed.
Reversed.
Judges WALKER and SMITH concur.
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