Abbott v Evans-Abbott, (02-1131) 08/05/2003

Appeal by defendant from orders entered 4 February 2002 and 18 April 2002 by Judge Alexander Lyerly in Watauga County District Court. Heard in the Court of Appeals 16 April 2003.

Eggers, Eggers, Eggers, & Eggers, by Rebecca Eggers-Gryder and Stacy C. Eggers, IV, for plaintiff-appellee.

Wilson, Lackey & Rohr, P.C., by Timothy J. Rohr, for defendant-appellant.

HUDSON, Judge.

Plaintiff Richard Newton Abbott, Jr. sought a domestic violence protective order against his wife, defendant Gwendolyn Evans-Abbott, contending that he feared defendant would harm him. The trial court issued the order, and defendant appeals. We affirm the decision of the trial court.

    On 13 January 2002 in their home in Boone, North Carolina, plaintiff and defendant began to argue. Defendant was upset because plaintiff wanted a divorce. When Plaintiff said that they needed some time to cool down, defendant ran upstairs and loudly slammed the door. Shortly thereafter, plaintiff heard thingsbreaking, including sounds of glass shattering. The parties' neighbor, Wendy Oliver, said that she “heard what sounded like glass falling and crashing and then something hit the wall upstairs that vibrated down through and made my pictures jump in the bedroom.” She also stated that the “noise sounded like somebody was reconstructing the inside of a house. It was unbelievable, loud crashes, loud bangs, thing[s] being thrown against the wall making my pictures jiggle on the wall.”
    When plaintiff heard defendant breaking things, he feared for his safety because defendant had thrown things at him numerous times in the past, and had once hit him in the back with a glass. Plaintiff said that defendant had also assaulted plaintiff's grown daughter, an act that required both plaintiff and his grown son to restrain defendant. Plaintiff left the house and headed for his car, with a sense of urgency and fearing for his life and safety. He heard crashes both before he left the house and while he was leaving. When he was halfway to his car, he saw defendant breaking an outside window. Just after plaintiff left, the neighbor heard the sound of crashes in the living room area, where plaintiff had been sitting moments before.
    Plaintiff drove to the Boone police station. There he spoke with Officer Eric Tart, who stated that plaintiff seemed “agitated, upset, nervous.” Plaintiff told Officer Tart that he was afraid to go home because he feared defendant would attempt to harm him. When officers arrived at the Abbott residence, they spoke with defendant, who admitted causing the destruction in the house. Shetold the officers that she was upset that her husband wanted a divorce.
    The neighbor, who observed the damage done to the house, stated that:
    It looked like it had a tornado gone through it. Furniture was tipped over. Her computer desk and bookcase was tipped over. The refrigerator was torn apart. There was a microwave thrown on the floor with a big hole in the floor. . . . They were very big [items] and I don't think I would have been able to tip it over.

Officer Puckett, who went to the house, similarly observed that the “house was destroyed. Everything was either in the floor or broken or tipped over. It was just a wreck.”
    In his complaint and motion for a domestic violence protective order plaintiff alleged the following:
    I feel threatened in such a way that I fear for my personal safety. The defendant has thrown things at me and threatened me in the past. On the 13th January 2002, she was throwing things around the residence and breaking objects to the extent I feared for my safety. As I was leaving the residence, object was thrown at bathroom window (from inside) destroying the window. later when she was not there (at emergency room at hospital, “911" by neighbor), I observed extensive damage to the structure and objects therein.

Plaintiff also attached a list detailing the damage within the home. The court issued an ex parte protective order on 15 January 2002.
    After the hearing on 23 January 2002, the trial court granted the domestic violence protective order. The court found that defendant had committed acts of domestic violence against plaintiff and that those acts had placed plaintiff in actual fear of imminent serious bodily injury.    On 14 February 2002, defendant filed a motion for a new trial, which the trial court denied. Defendant now appeals both the entry of the protective order and the denial of her motion for a new trial.

    Defendant argues that there is no evidence to support the trial court's findings of fact and conclusions of law and that the protective order was improperly entered. We disagree.
    A trial court can grant a protective order to “bring about a 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 either version 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 plaintiff actually feared imminent serious bodily injury. The court found that“[d]efendant threw and broke objects at the marital residence, in the presence of Plaintiff.”
    At the hearing, plaintiff testified that:
    . . . I started hearing things being broken. It sounded like glass and it was loud, and it was at that point, I wasn't going to go back in the house for fear of my own safety because she'd thrown things at me before. . . . I thought, I'm not going to go back in there now under any circumstances . . . I was terrified.

    Where the trial court finds that a plaintiff is actually subjectively in fear of imminent serious bodily injury, as it did here, “an act of domestic violence has occurred pursuant to [N.C. Gen. Stat. §] 50B-1(a)(2).” Brandon v. Brandon, 132 N.C. App. 646, 654-55, 513 S.E.2d 589, 595 (1999). The testimony that defendant was upset, that she was throwing and breaking things in the house, and that she had thrown things at plaintiff in the past supports the finding that plaintiff's fear was of an imminent occurrence. The neighbor described the activity emanating from the home as “unbelievable, loud crashes, loud bangs.” She heard “something hit the wall upstairs that vibrated down through and made my pictures jump in the bedroom.” This evidence supports the court's finding that plaintiff was placed in actual fear of imminent serious bodily injury.
    We believe that this case is distinguishable from Brandon, 132 N.C. App. 646, 513 S.E.2d 589, in that there was no finding in Brandon that the plaintiff subjectively feared imminent serious bodily injury. Here, the court made such a finding, which is supported by the evidence. In turn, the trial court's findings of fact that plaintiff was placed in actual fear of imminent seriousbodily injury support the 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.

    Defendant points to the fact that plaintiff attempted to file a voluntary dismissal after the trial court issued the protective order. We, however, give great deference to the trial court's findings, even when there may be evidence to the contrary. Brandon, 132 N.C. App. at 652, 513 S.E.2d at 593 (holding that the trial court's findings that plaintiff subjectively feared imminent serious bodily injury turned in “large part on the credibility of the witnesses, [and] must be given great deference by this Court.”). Accordingly, where the trial court's findings of fact are supported by competent evidence, as they are here, they are binding on appeal. Id. And, as indicated earlier, when the trial court finds that a plaintiff is subjectively in fear of imminent serious bodily injury, an act of domestic violence has occurred. Id. at 654-55, 513 S.E.2d at 595. Thus, we affirm the trial court's issuance of the domestic violence protective order and denial of defendant's motion for a new trial.
    Affirmed.
    Judges MARTIN and ELMORE concur.