DONNA ROBERTSON,
Plaintiff,
v
.
Davie County
No. 01 CVD 398
CHARLES RONALD ROBERTSON,
Defendant.
Theodore M. Molitoris and Michelle D. Reingold, for the
plaintiff-appellee.
Elliot, Pishko, Gelbin & Morgan, P.A., by David C. Pishko, for
the defendant-appellant.
HUDSON, Judge.
Defendant, Charles Ronald Robertson, appeals from an ex parte
domestic violence protective order entered 11 June 2001, and a
domestic violence protective order entered 2 July 2001, in favor of
his wife, plaintiff Donna Robertson.
Plaintiff and defendant were married on 3 June 1995, and
subsequently had two children together. On 11 June 2001, plaintiff
filed a Complaint and Motion for Domestic Violence Protective Order
with the district court in Davie County. She alleged that
defendant had committed certain acts against her that had placedher in actual fear of imminent serious bodily injury, and she
requested that the court give her emergency relief in the form of
an ex parte order. The court granted the order. After a hearing,
the court on 2 July 2001 also granted plaintiff a Domestic Violence
Protective Order, effective for one year from the date of issuance.
Defendant appeals both the ex parte and domestic violence
protective orders.
On appeal, defendant contends that the conduct alleged in
plaintiff's complaint and motion for a domestic violence protective
order was insufficient to support the entry of an ex parte domestic
violence protective order pursuant to N.C. Gen. Stat. § 50B-2
(2001). He also contends that the ex parte order was invalid
because it lasted longer than the ten days mandated by N.C. Gen.
Stat. § 50B-2(c). In Smart v. Smart, 59 N.C. App. 533, 535, 297
S.E.2d 135, 137 (1982), this Court held that ex parte orders may
not be appealed because they are interlocutory. “Interlocutory
orders are those made during the pendency of an action which do not
dispose of the case, but instead leave it for further action by the
trial court in order to settle and determine the entire
controversy.” Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2,
4, reh'g denied, 350 N.C. 385, 536 S.E.2d 70 (1999). The Smart
Court noted that “no appeal will lie to an appellate court from an
interlocutory order or ruling of a trial court unless such order or
ruling deprives the appellant of a substantial right which he will
lose if the order or ruling is not reviewed before final judgment.”
59 N.C. App. at 534-35, 297 S.E.2d at 137 (describing thejuxtaposition of N.C. Gen. Stat. § 1-277 and N.C. Gen. Stat. § 7A-
27). “A right is substantial only where appellant would lose it if
the ruling or order is not reviewed before final judgment.” Smart,
59 N.C. App. at 535, 297 S.E.2d at 137. The Smart Court held that
“the immediate temporary emergency relief granted by the [ex parte]
order does not affect any substantial right of the defendant which
cannot be protected by timely appeal from the trial court's
ultimate disposition of the entire controversy on the merits.” Id.
at 536, 297 S.E.2d at 137-38. Thus, defendant's appeal of the ex
parte order is dismissed as interlocutory.
Defendant also contends that the trial court erred in entering
the domestic violence protective order. The trial court entered
the order on 2 July 2001 effective for one year. Without any
further documentation
(See footnote 1)
from the parties, we must presume that the
order ended on 2 July 2002 and was not renewed pursuant to N.C.
Gen. Stat. § 50B-3(b) (2001). As this order is no longer in place
and there is no continuing controversy, normally we would find that
defendant's appeal should be dismissed as moot. See Benvenue
Parent-Teacher Assoc. v. Nash County Bd. of Educ., 275 N.C. 675,
679, 170 S.E.2d 473, 476 (1969) (holding that this Court properly
refuses to entertain moot appeals, because any determinations would
be based on abstract propositions of law). “However, even when
the terms of the judgment . . . have been fully carried out, ifcollateral legal consequences of an adverse nature can reasonably
be expected to result therefrom, then the issue is not moot and the
appeal has continued legal significance.” In re Hatley, 291 N.C.
693, 694, 231 S.E.2d 633, 634 (1977); see also Sibron v. New York,
392 U.S. 40, 20 L. Ed. 2d 917 (1968). In Smith ex rel. Smith v.
Smith, 145 N.C. App. 434, 436, 549 S.E.2d 912, 914 (2001), this
Court held that even though a domestic violence protective order
effective for six months was no longer in place at the time of the
appeal, “[d]efendant may suffer collateral legal consequences as a
result of the entry of the order. Such collateral legal
consequences may include consideration of the order by the trial
court in any custody action involving Defendant.” Moreover, the
Court held that numerous non-legal collateral consequences also
required that an appellate court review a protective order after it
has expired, including matters in which “a stigma . . . is likely
to attach to a person judicially determined to have committed
[domestic] abuse.” Id. at 437, 549 S.E.2d at 914. Even though
defendant has not argued that he has suffered or in the future
might suffer from collateral consequences of the domestic violence
protective order, the parties do have minor children, and we elect
to address his appeal on its merits.
Defendant argues that the trial court's findings of fact do
not support the conclusion of law that defendant committed acts of
domestic violence against the plaintiff. Thus, the trial court
erred by entering a domestic violence protective order in favor of
the plaintiff. We disagree. In his brief on appeal, defendant contends that substantial
evidence did not support the finding that “the defendant placed in
actual fear of imminent serious bodily injury the plaintiff by . .
. throwing coffee grounds at her, on 6-9-01 in a[n] angry stance
told her he would see to it she got what she deserved. On or about
March 29, 2001 he physically restrained her by holding her arms
while she was trying to get away.” We first note that because
defendant did not assign error to the trial court's findings of
fact, we are bound by these findings, which we presume to be
correct. See Inspirational Network, Inc. v. Combs, 131 N.C. App.
231, 235-36, 506 S.E.2d 754, 758 (1998); see also Saxon v. Smith,
125 N.C. App. 163, 169, 479 S.E.2d 788, 792 (1997).
Defendant also contends that the findings do not support the
conclusion that “[t]here is danger of serious and immediate injury
to the plaintiff.” Pursuant to N.C. Gen. Stat. § 50B-3, “[t]he
court . . . may grant any protective order or approve any consent
agreement to bring about a cessation of acts of domestic violence.”
Domestic violence is defined, in pertinent part, as “[p]lacing the
aggrieved party or a member of the aggrieved party's family or
household in fear of imminent serious bodily injury.” N.C. Gen.
Stat. § 50B-1 (a)(2). “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.
The trial court found as fact that the defendant put plaintiff“in actual fear of imminent serious bodily injury” by throwing
coffee grounds at her, telling her that he would “see to it she got
what she deserved,” and physically restraining her when she tried
to leave. The plaintiff testified as follows:
A. On June 9th my husband, in a harsh
aggressive tone told me he was going to--
“I will make sure you get what you
deserve and I can't wait.” His--
Q. What did he appear to look like
physically? Where was he standing with
regard to you and what was his demeanor?
A. He was probably--he was three to four
feet away, red-faced, hulking.
Q. What do you mean by that?
A. Arms up, fists--
Q. Fists clenched?
A. Clenched, yes, sir.
Q. What did his arms look like?
A. His arms were out.
Q. Are you demonstrating for the Court what
his arms looked like?
A. Out, with his fists clenched, a very
intimidating stance.
Q. How many feet from you was he?
A. Three or four feet.
Q. What did you feel right at that moment?
A. I was scared and I was intimidated and I
went inside and dialed 911.
“[W]here the trial court finds that a plaintiff is actually
subjectively in fear of imminent serious bodily injury, an act of
domestic violence has occurred pursuant to [N.C. Gen. Stat. §] 50B-1(a)(2).” Brandon v. Brandon, 132 N.C. App. 647, 654-55, 513
S.E.2d 589, 595 (1999). Thus, the trial court's finding of fact
that plaintiff was “actually subjectively in fear of imminent
serious bodily injury” based on this evidence supports the trial
court's conclusions that
3. The defendant has committed acts of
domestic violence against the plaintiff.
. . . .
5. There is danger of serious and immediate
injury to the plaintiff.
. . . .
7. This domestic violence protective order is
necessary to bring about a cessation of acts
of domestic violence.
We affirm the trial court's issuance of the 2 July 2001
domestic violence protective order in favor of plaintiff.
Affirmed.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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