PENNY GORDON BENSON,
Plaintiff-Appellee,
v. Davidson County
No. 05 CVD 2425
TIMOTHY DWAYNE BENSON,
Defendant-Appellant.
C.R. "Skip" Long, Jr. for Defendant-Appellant.
No brief filed by Plaintiff-Appellee.
McGEE, Judge.
Defendant appeals from a domestic violence protective order
(DVPO) issued by the trial court on behalf of Plaintiff. Although
the DVPO expired on 6 February 2006, we note that Defendant's
appeal is not moot, in light of the "'stigma that is likely to
attach to a person judicially determined to have committed
[domestic] abuse'" as well as "the continued legal significance of
an appeal of an expired domestic violence protective order[.]"
Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001)
(internal citations omitted).
Defendant argues that the finding of fact entered by the trial
court is insufficient to satisfy the statutory requirements forissuance of a DVPO. See N.C. Gen. Stat. §§ 50B-1, 50B-3 (2005).
We agree.
A court may issue a DVPO "'to bring about the cessation of
acts of domestic violence.'" Smith, 145 N.C. App. at 437, 549
S.E.2d at 914 (quoting N.C. Gen. Stat. § 50B-3(a) Supp. 2000)).
Our Court has held, however, that "[t]he court's authority to enter
a protective order . . . is dependent upon finding that an act of
domestic violence occurred and that the order furthers the purpose
of ceasing acts of domestic violence." Bryant v. Williams, 161
N.C. App. 444, 446, 588 S.E.2d 506, 508 (2003). "Domestic
violence" is defined by statute as
the commission of one or more of the following
acts upon an aggrieved party . . . :
(1) Attempting to cause bodily injury, or
intentionally causing bodily injury;
(2) Placing the aggrieved party or a
member of the aggrieved party's family or
household in 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; or
(3) Committing any act defined in G.S.
14-27.2 through G.S. 14-27.7.
N.C. Gen. Stat. § 50B-1(a)(1)-(3) (2005). For purposes of N.C.G.S.
§ 50B-1(a)(2), "harassment" is "knowing conduct . . . directed at
a specific person that torments, terrorizes, or terrifies that
person and that serves no legitimate purpose." N.C. Gen. Stat. §
14-277.3(c) (2005).
The DVPO entered against Defendant lacks sufficient findings
of fact to satisfy N.C. Gen. Stat. §§ 50B-1. The sole finding offact included in the DVPO reads as follows:
The parties have a contingi [sic]
[r]elationship. Both parties have been
disrespectful to the other even in presence of
the children.
The trial court's sole finding of fact does not find any
action by Defendant that would constitute an act of domestic
violence under N.C. Gen. Stat. § 50B-1(a). The disrespectful
conduct of both parties to one another found by the trial court may
be inappropriate, but that conduct does not meet the statutory
definition of domestic violence and therefore does not support the
entry of a DVPO pursuant to N.C. Gen. Stat. § 50B-3.
The order also includes a single conclusion of law, designated
by a marked box on the order form, that the DVPO "is necessary to
bring about a cessation of acts of domestic violence." There is
no conclusion that an act of domestic violence had occurred.
With no finding of fact of conduct of the Defendant that
constitutes an act of domestic violence, the order must be
reversed. See Price v. Price, 133 N.C. App. 440, 442, 514 S.E.2d
553, 554 (1999); Brandon v. Brandon, 132 N.C. App. 646, 654, 513
S.E.2d 589, 594 (1999); see also Woodring v. Woodring, 164 N.C.
App. 588, 593, 596 S.E.2d 370, 374 (2004).
Reversed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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