An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-395


Filed: 1 April 2003



v .                         Wake County
                            No. 01 CVD 13130


    Appeal by defendant from judgment entered 2 November 2001 by Judge Kristin H. Ruth in Wake County District Court. Heard in the Court of Appeals 13 November 2002.

    Katherine Eatmon, plaintiff-appellee, pro se.

    Sally H. Scherer, for defendant-appellant.

    HUDSON, Judge.
    Plaintiff Katherine Eatmon sought a domestic violence protective order against defendant Lori E. Safferman (“Safferman”). Plaintiff claimed that Safferman had attempted to kidnap her daughter and that she had reason to fear that she might try to do so again. The trial court granted the order, and Safferman now appeals. For the reasons set forth below, we reverse the decision of the trial court.


    Plaintiff (known then by her birth name Vermuellen) and Safferman lived together in New York in the 1980s. In 1984, thetwo women decided to have a child, and plaintiff was artificially inseminated by an unknown donor. She gave birth to a daughter, Rachel, in May 1985. About a year later, plaintiff and Safferman executed a parenting agreement to provide for joint custody of Rachel in the event they separated. They did separate in 1991 when plaintiff moved out of Safferman's apartment. Plaintiff repudiated her agreement with Safferman at that time. Plaintiff moved to North Carolina in 1993 and later married her husband, Oscar Eatmon.
    Until the end of 2000, plaintiff permitted Safferman to spend time with Rachel. At that time, plaintiff and her husband decided to restrict Safferman's contact with Rachel because they believed that Safferman and her companion, Pamela McFall, were bad influences on Rachel.
    According to McFall, on September 28, 2001, Safferman and she drove to plaintiff's home. They knew that day was a teacher workday, and they were hoping to see Rachel at home. They parked their car nearby and observed the home through binoculars. Safferman and McFall expected plaintiff and her husband to leave their children home alone, at which point they planned to approach the home in disguise and pretend that McFall was a toy salesman to get Rachel to open the door. Once Rachel opened the door, Safferman would come out from behind the bushes where she was hiding and talk to her.
    However, Rachel left the house with plaintiff. Safferman and McFall followed them to Brassfield Road Elementary School in Raleigh, where plaintiff worked. Safferman and McFall put on wigsand glasses, ignored the “no trespassing” sign, entered the school, signed in under false names, and went to plaintiff's classroom. Plaintiff was there with Rachel and two teacher's assistants. While McFall asked plaintiff questions about schools, Safferman approached Rachel, who was sitting at a table listening to music. Safferman attempted to hand Rachel a brown bag, but Rachel recognized her at that point and stood up to alert plaintiff. Safferman blocked Rachel with her body by moving several times into her way as Rachel tried to get around her. Rachel said, “Mom, I have to tell you something. I have to tell you something right now.” Rachel testified that she was scared because Safferman was in disguise and because her visit was unexpected. Plaintiff saw that her daughter was frightened and shaking and then felt a “wave of terror” as she looked up and recognized Safferman and McFall. Plaintiff was “very afraid something violent would happen now that [she] recognized them.” Plaintiff asked Safferman and McFall to leave the room. At that point, security personnel arrived and escorted the women to the school office. Plaintiff saw Safferman and McFall “running around inside the office and yelling” and then approaching the school principal in a threatening manner.
    Plaintiff spoke to the investigator and police officers and told them that Safferman had been harassing her and that Safferman was at the school to take Rachel or to hurt her. Plaintiff watched the investigators search the women's rental car. Inside the car she saw camouflage clothing, a clipboard with information on various toys, velcro straps, wire, chain, a map of Raleigh, and twopairs of binoculars.
    Plaintiff filed a complaint and motion for a domestic violence protective order on October 25, 2001, alleging that Rachel was placed in fear of imminent serious bodily injury because on “9/28/01--defendant attempted to kidnap minor child, Rachel.” Plaintiff obtained an ex parte protective order the same day.
    At the subsequent hearing on November 2, 2001, both plaintiff and Safferman described what happened on September 28, 2001. Plaintiff also testified--over Safferman's objection--about what she described as another “problem” that occurred in July 2001. Safferman had been permitted visitation with Rachel for the weekend, but just prior to the weekend, plaintiff had e-mailed Safferman, informing her that Rachel was going with plaintiff to the beach and could not see Safferman. Safferman came to Raleigh anyway and left messages for Rachel that she was in town and wanted to see her. Plaintiff testified that the family was afraid after hearing the messages because they thought that Safferman might be waiting for them. The Eatmons called the police to accompany them home but found only a package at the door. Rachel later saw Safferman's and McFall's faces through a window. Plaintiff heard the doorbell ringing, heard banging on the door, and heard Safferman and McFall calling, “come out, Rachel. Let Rachel out.” Eatmon again called the police. By the time the police arrived, Safferman and McFall had left.
    Safferman explained at the hearing that she went to Rachel's school because she was concerned that she had not spoken withRachel in a long time and wanted to make sure that Rachel was doing well. Safferman thought that the Eatmons were making Rachel afraid of her.
    After hearing the evidence, the trial court granted the domestic violence protective order. The court found that Safferman had committed acts of domestic violence against Rachel and that those acts had placed Rachel in actual fear of imminent serious bodily injury.
    Safferman now appeals.
    Safferman first argues that the trial court's findings of fact do not support the conclusion of law that she placed Rachel in fear of imminent serious bodily harm. Thus, Safferman contends, the trial court erred in issuing the protective order.     
    A trial court can grant a protective order to “bring about the cessation of acts of domestic violence.” N.C. Gen. Stat. § 50B- 3(a) (2001). At the time this action was initiated, an act of domestic violence was 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) (1999). This language has since been amended. The current version of the statute now reads “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.” N.C. Gen. § 50B-1(a)(2) (2001). Under eitherversion of the statute, 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 that the aggrieved party “actually feared” imminent serious bodily injury. Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001).
    Here, the trial court found as fact that Rachel actually feared imminent serious bodily injury. The court found that plaintiff and Rachel recognized Safferman and McFall at the school and were “very afraid of what was going on or what was happening. When Rachel moved to go in the direction of her mother, the Defendant stepped in her way and tried to block her. This happened several times and Rachel then went by her mother (the Plaintiff) and the Plaintiff told the Defendant and Pam McFall to leave.”
    In our view, however, these findings of fact establish only that Safferman made Rachel feel afraid. They do not show that Rachel was afraid of being hurt-- of “serious imminent bodily injury,” as was required by the statute. We acknowledge that the trial court found as fact that Safferman placed Eatmon and Rachel in actual fear of imminent serious bodily injury. This finding, however, was based on Safferman's act of unexpectedly showing up at Eatmon's school in disguise. As there is no evidence that Rachel was afraid that Safferman would hurt her, this finding cannot support the trial court's conclusion that Eatmon and Rachel were placed “in actual fear of imminent serious bodily injury.” Smith, 145 N.C. App. at 438 n2, 549 S.E.2d at 915 n2.
    Likewise, none of Rachel's testimony reveals that she fearedinjury at the hands of Safferman. At the hearing, Rachel testified that Safferman:
    blocked me from getting to [plaintiff], but then I got around to my mom and told her. (I had gotten up and moved this way, and then she [Safferman] went the same way, and then I went that way, and she moved again, and then when I moved this way, that is when I got around her.) I felt scared because she was in a disguise and she didn't say she was coming. The scary part was just that Lori came unexpectedly in a disguise and walked up to me trying to give me something and it is scary that someone you know would just disguise so that you don't know who they are and try to see you.

Although it is clear that Safferman's unexpected and disguised appearance frightened Rachel, we see no evidence that Safferman's actions caused Rachel to fear serious imminent bodily injury.
    This Court has reached similar conclusions in the past. In Smith, the plaintiff, a twelve-year-old girl, alleged that her father touched her inappropriately on the chest and buttocks. She testified that although the father had never hurt her, nor was she afraid that he would hurt her, his touching was “creepy” and made her feel uncomfortable. Id. at 435, 549 S.E.2d at 913. This Court overturned the domestic violence protective order that the trial court had entered, holding that “these findings of fact which show Defendant's conduct caused Plaintiff to feel uncomfortable but did not place her in fear of bodily injury do not support a conclusion Defendant placed Plaintiff “in fear of serious imminent bodily injury.” Id. at 438, 549 S.E.2d at 915. Here, although the evidence shows--and the court found--that Rachel was afraid, the testimony did not indicate what she feared and made no reference at all to bodily harm.
    Accordingly, we conclude that the evidence did not support thetrial court's finding that both Rachel and Plaintiff were “placed in actual fear of imminent serious bodily injury.” Without such evidence, the actions of Safferman, however suspicious and generally “scary,” did not constitute domestic violence under the statute as it read at the time.
    Safferman also argues (1) that the trial court erred when it admitted evidence of another incident that occurred in June 2001 and (2) that the trial court erred when it changed the caption of the parties in its order. In light of our decision, above, we deem it unnecessary to address these remaining issues.
    For the reasons set forth above, we reverse the trial court's domestic violence protection order.
    Chief Judge EAGLES and Judge McGEE concur.
    Report per Rule 30(e).

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