Duff v Lineberger, (04-335) 08/02/2005

    On 3 November 2003, plaintiff Sylvia Diane Duff filed, in Mecklenburg County District Court, a complaint and motion for a domestic violence protective order against her husband, Vincent Eugene Lineberger. Plaintiff and defendant were separated at thetime. Judge Lisa C. Bell entered an ex parte order on the same day, finding that "on 10-26-03, the defendant . . . placed in actual fear of imminent serious bodily injury the plaintiff . . . by . . . threatening to kill her" and that defendant had been convicted on 24 October 2003 of assault on a female. The court concluded that defendant had committed acts of domestic violence against plaintiff, that there was a danger of future acts of domestic violence against plaintiff, and that an ex parte domestic violence protective order was necessary to protect plaintiff. Also on 3 November 2003, the court issued an order scheduling a hearing on the matter for 12 November 2003.
    On 7 November 2003, defendant filed an answer and a motion to dismiss for improper venue on the grounds that a prior action was pending in Granville County District Court relating to custody, child support, divorce, equitable distribution, and alimony. Defendant asserted in his motion that "the Court should not hear claims on custody and support." On 10 November 2003, defendant also filed a "Statement of Issues and Contentions to Deny a One Year Domestic Violence Protective Order."
     Upon motion of the plaintiff, the 12 November 2003 hearing was continued until 17 November 2003. At the 17 November 2003 hearing before Judge Jane V. Harper, plaintiff testified that defendant had committed acts of domestic violence in December 2002 and January 2003 and on 9 August 2003 and 26 October 2003. Defendant testified that he was engaging in self-defense on 9 August 2003. He did not mention the December 2002 and January 2003 allegations.     Following defendant's testimony, the trial court initially indicated an intent to dismiss the complaint based on plaintiff's failure to present any evidence to corroborate her testimony in the face of defendant's denial of the events. After plaintiff's counsel argued that defendant had not denied the 26 October 2003 incident involving broken windows, the court questioned defendant:
    THE COURT: Did you break the windows?

MR. LINEBERGER: Your Honor _

THE COURT: Did you break the windows?

MR. LINEBERGER: Did I break the windows?

THE COURT: Yes.

MR. LINEBERGER: Your Honor, at this point on the _

THE COURT: Mr. Lineberger, did you break the windows?

MR. LINEBERGER: I have been charged with a crime of that, Your Honor.

THE COURT: So you are not going to answer the question?

MR. LINEBERGER: Well, Your Honor, I have been charged with a crime.

THE COURT: Okay. I will reconsider then. I will reconsider the evidence. I was thinking he would be asked about that on cross but he wasn't.

[COUNSEL FOR PLAINTIFF]: I didn't want to give him the opportunity to deny it. That is why I didn't ask him.

(Pause)

    THE COURT: Okay. The order is in effect for you.
    Defendant then raised the question of venue, stating that an action in Granville County was "still pending" and that he "just wanted to make sure that this order does not come in and affect that." In response to questioning by the district court, both defendant and plaintiff confirmed that they and their children all currently resided in Mecklenburg County. The district court then stated: "Well, what I am going to do is award [plaintiff] temporary custody but I am going to put subject to future resolution of Granville County case." Defendant responded, "Okay."
    The trial court then completed the Domestic Violence Protective Order ("DVPO"). It was filed the same day, 17 November 2003, and was effective for one year. The trial court found that defendant had placed plaintiff in actual fear of imminent serious bodily injury on 26 October 2003 by breaking her windows and car windshield and calling plaintiff repeatedly. The court noted that while defendant denied an incident alleged to have occurred on 3 August 2003, he "does not respond re 10/26/03." After further finding that the parties' children were presently in the custody of plaintiff and that plaintiff had possession of the parties' Nissan Sentra, the trial court concluded that the court had jurisdiction over the parties and the subject matter of the case, that defendant had reasonable notice and an opportunity to be heard, that the court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, and that it was in the best interests of the minor children that temporary custody be given to plaintiff. With respect to the issues involved on this appeal, the trial courtordered that plaintiff have possession and use of the Nissan Sentra, that plaintiff be awarded temporary custody of the children "subject to future resolution of Chapter 50 action pending in Granville County," and that defendant make child support payments "as required by law."

    Defendant contends that the Mecklenburg County District Court erred in failing to grant his motion to dismiss for improper venue in light of his prior pending action filed in Granville County District Court. Defendant argues that the DVPOs "as they relate[] to the minor children, alimony, equitable distribution, custody, support [are] reversible error." We disagree.
    Plaintiff brought this action pursuant to N.C. Gen. Stat. § 50B-2(a) (2003), which provides that "[a]ny person residing in this State may seek relief under this Chapter by filing a civil action or by filing a motion in any existing action filed under Chapter 50of the General Statutes alleging acts of domestic violence . . . ." This statute thus specifically authorized plaintiff to proceed by filing a separate civil action even if another action was also pending under Chapter 50. Venue for this action was appropriate in Mecklenburg County since both parties resided in that county. N.C. Gen. Stat. § 1-82 (2003) ("[T]he action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement . . . .").
    Defendant seems to challenge venue only with respect to issues of custody, support, equitable distribution, and alimony. The district court did not, however, enter any orders under Chapter 50 relating to those issues. Instead, the district court in both DVPO orders included relief specifically authorized under Chapter 50B, which permits a DVPO to "[a]ward temporary custody of minor children," to "[o]rder either party to make payments for the support of a minor child as required by law," and to "[p]rovide for possession of personal property of the parties." N.C. Gen. Stat. § 50B-3(a)(4), (6), (8) (2003). Our General Assembly has provided that the remedies set out in Chapter 50B "are additional to remedies provided under Chapter 50 and elsewhere in the General Statutes." N.C. Gen. Stat. § 50B-7 (2003). In addition, the district court specified that the award of temporary custody was "subject to future resolution of Chapter 50 action pending in Granville County." The trial court thus proceeded as authorized under Chapter 50B and, therefore, was not required to dismiss the action for improper venue.

    With respect to the 3 November 2003 ex parte DVPO, defendant first assigns as error the trial court's finding of fact 2(b) that defendant threatened to kill plaintiff on 26 October 2003 and was convicted of assault on a female on 24 October 2003. The text of defendant's brief does not, however, address this finding of fact, but rather argues that "[t]his order was invalid because it is ambiguous under Brandon v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999)." Because the argument in the brief was not the subjectof an assignment of error, it is not properly before us. N.C.R. App. P. 10(a) ("[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.").
    Nevertheless, finding of fact 2(b) was supported by plaintiff's verified complaint and motion, which included allegations that defendant had threatened to kill plaintiff and that on 24 October 2003, he had been found guilty of assault on a female. See Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275 (where the trial court's findings of fact are supported by competent evidence, they are binding on appeal), disc. review denied, 303 N.C. 180, 280 S.E.2d 452 (1981). With respect to defendant's argument under Brandon, that opinion notes that the standard form domestic violence protective order in use at that time allowed trial judges to make ambiguous factual findings because it listed, after a single check box, multiple offenses separated by the word "or." Brandon, 132 N.C. App. at 651, 513 S.E.2d at 593. The form used in this case does not present that problem and, therefore, defendant's reliance on Brandon is misplaced.
    In a separate assignment of error, defendant states: "The trial court['s] Conclusion of Law #1, #3 and #6 erred in the November 3, 2003 Domestic Violence Protective Order in concluding without competent evidence." In these conclusions of law, the district court determined that defendant had committed acts of domestic violence against plaintiff, that there was a danger offuture acts of domestic violence against plaintiff, and that the ex parte order was necessary to protect plaintiff from violence. In another assignment of error, defendant contends more specifically that the findings of fact are insufficient to support the conclusions of law because the trial court made no finding on plaintiff's "subjective fear." See id. at 654, 513 S.E.2d at 595 (holding that a finding that the defendant threatened the plaintiff, without a concomitant finding that the threat created actual fear in the plaintiff, does not amount to domestic violence).
    Here, the district court specifically found that on 26 October 2003, defendant placed plaintiff "in actual fear of imminent serious bodily injury." (Emphasis added.) The 3 November order, therefore, complied with Brandon. Further, our review of the record indicates that the challenged conclusions are supported by the findings of fact regarding defendant's threat and assault, which in turn were supported by evidence presented at the hearing.

    With respect to the 17 November 2003 DVPO, defendant first argues that he should have been allowed to cross-examine plaintiff regarding adultery and that plaintiff should have been required to invoke the Fifth Amendment in response to those questions. While this Court has held that evidence of adultery may be admissible in hearings on permanent custody under Chapter 50, see Hunt v. Hunt, 29 N.C. App. 380, 382-83, 224 S.E.2d 270, 271 (1976), adultery was not relevant to the issues involved in this domestic violenceaction under Chapter 50B. The issue in this case was whether defendant had committed an act of domestic violence as defined in N.C. Gen. Stat. § 50B-1(a) (2003) necessitating a "protective order to bring about a cessation of acts of domestic violence," N.C. Gen. Stat. § 50B-3(a). Whether or not plaintiff committed adultery is not relevant to whether defendant committed an act of domestic violence or whether the district court should enter a DVPO.
    Defendant also assigns error to the district court's refusal to allow him to ask plaintiff whether she had been convicted of a crime. Specifically, the district court sustained plaintiff's objection to the following question by defendant: "Ms. Duff, have you ever been convicted of a crime?" The North Carolina Rules of Evidence allow the introduction of evidence of a witness' prior conviction only under certain circumstances. Specifically, N.C.R. Evid. 609(a) provides that a witness' credibility may be attacked by "evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor" within the last 10 years. Defendant's question was not sufficiently tailored to the constraints imposed by Rule 609 for the admissibility of such evidence. It was overbroad and, accordingly, the trial court properly sustained plaintiff's objection.
    Defendant next contends that the district court's acceptance from plaintiff's counsel of a partially-completed form DVPO violated the trial judge's obligation to remain neutral. The cases defendant cites in support of this proposition present extreme cases of judicial bias. See, e.g., McClendon v. Clinard, 38 N.C.App. 353, 356_57, 247 S.E.2d 783, 785 (1978) (holding that trial judge should have recused himself after making pre-hearing statements to the press indicating his opinion of the case). Here, the record indicates that the trial judge exercised her independent judgment and made modifications and additions to the proposed DVPO. Further, a review of the record reveals that the trial judge maintained her neutrality throughout the proceedings.
     Defendant further argues that he was not given proper notice that this case involved child custody, child support, and visitation and did not have an opportunity to be heard on those issues. Defendant mistakes the nature of the proceeding. It was an action for a DVPO and not a custody or child support proceeding. Defendant had notice by virtue of plaintiff's complaint and motion that plaintiff was seeking relief under N.C. Gen. Stat. §§ 50B-1 and 50B-2 and that, as part of the relief, she was seeking temporary child custody and temporary child support. Her complaint reflected, however, that she understood that she would need to file a separate child custody and child support action for permanent custody and support. Defendant was, therefore, not denied notice of any of the issues involved in the proceeding below and had a full opportunity to be heard.
    Finally, d efendant objects to the district court's finding that the parties were "separated," arguing that there was no voluntary severance of marital relations, but rather that any severance arose out of his incarceration. Defendant appears to contend that Chapter 50B requires "a severance of maritalrelations" in order to be applicable. To the contrary, domestic violence has occurred when "a person with whom the aggrieved party has or has had a personal relationship" commits certain specified acts. N.C. Gen. Stat. § 50B-1(a) (emphasis added). A court may find domestic violence whether the parties are still together or apart and whether they are married or not. There simply must have been a "personal relationship."   (See footnote 1) To the extent that defendant is arguing that he was entitled to destroy marital property, even if correct, he misunderstands the import of the district court's finding of fact: the breaking of windows and the car's windshield caused plaintiff to be placed in actual fear of imminent serious bodily injury, thereby justifying the DVPO. This assignment of error is, therefore, overruled.
    Since defendant's brief contains neither argument nor citation to legal authority regarding his other assignments of error, we must deem them to be abandoned. Talley v. Talley, 133 N.C. App. 87, 89, 513 S.E.2d 838, 839 ("The function of the brief . . . is to provide an argument setting out the contentions of the parties with respect to each question presented. . . . Assignments of error which are not supported by reason or argument in the brief will be taken as abandoned." (internal quotation marks omitted)), disc. review denied, 350 N.C. 599, 537 S.E.2d 495 (1999) .     For the reasons stated, we affirm the trial court's 3 November 2003 ex parte order and the DVPO filed 17 November 2003.

    Affirmed.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1