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Smith v. Smith

North Carolina Court of Appeals
Aug 1, 2001
145 N.C. App. 434 (N.C. Ct. App. 2001)

Summary

holding appeal of expired domestic violence order not moot

Summary of this case from McCOMAS v. KIRN

Opinion

No. COA00-596

Filed 7 August 2001

1. Appeal and Error — expired domestic violence protective order — mootness — collateral consequences

An appeal from an expired domestic violence protective order was not moot because defendant could suffer collateral legal consequences such as consideration of the order in a custody action, as well as the stigma likely to attach to a person judicially determined to have committed domestic abuse.

2. Domestic Violence — protective order — sufficiency of findings

The trial court erred by entering a domestic violence protective order against defendant based upon findings which show that defendant's twelve-year-old daughter felt uncomfortable because of defendant's conduct in touching her buttocks and chest area but did not fear bodily injury.

Judge McGHEE dissenting.

Appeal by defendant from order filed 25 February 2000 by Judge William C. Lawton in Wake County District Court. Heard in the Court of Appeals 27 March 2001.

East Central Community Legal Services, by Suzanne Chester, and Legal Services of North Carolina, Inc., by George Hausen, for plaintiff-appellee.

Robert A. Miller, P.A., by Robert A. Miller, for defendant-appellant.


George Smith (Defendant) appeals from a domestic violence protective order filed 25 February 2000 in favor of Cassandra Smith (Plaintiff) by and through her mother, Mary E. Smith (Smith).

Plaintiff is the twelve-year-old minor child of Defendant and Smith. In February 2000, Plaintiff resided with her parents, her younger brother, Smith's two daughters from a previous relationship, and Smith's granddaughter. At that time, Defendant, who was recovering from being hospitalized as the result of a manic episode, served as the caregiver of the minor children while Smith worked outside of the home.

On 8 February 2000 and a portion of 9 February 2000, Plaintiff stayed home from school under the care of Defendant because she was sick. Feeling better, Plaintiff returned to school at some time on 9 February 2000. On the evening of 9 February 2000, Plaintiff telephoned her grandmother and reported Defendant had touched her that day in an inappropriate manner. As a result, a complaint was filed with the Department of Human Services (DHS) relating to allegations of abuse by Defendant of Plaintiff and her brother. On 14 February 2000, Defendant voluntarily entered into a child protection plan with DHS, under which Defendant agreed not to be in the presence of Plaintiff without another adult being present.

Based on Plaintiff's allegations of inappropriate touching by Defendant, an ex parte domestic violence protective order was issued on 14 February 2000, requiring that Defendant leave the marital residence. Subsequent to trial, the trial court made the following pertinent findings of fact:

12. Plaintiff testified that on perhaps 30 occasions since Defendant's return from the hospital, Defendant has touched her, either on her buttocks or her chest while she was wearing clothes, and that on some of these occasions he rubbed her on the buttocks area, refusing to stop until she pulled away from him and left the room. Plaintiff testified that [Defendant] made statements to her which made her feel uncomfortable. The only statement Plaintiff was able to recall was that [Defendant] "told her how pretty she was and that he couldn't wait for her to grow up and see what a beautiful woman she would become[."] Plaintiff testified [Defendant] had never physically hurt her, nor was she afraid that he would physically hurt her, but that his touching made her feel very uncomfortable and it was "creepy[.]"

13. In view of the age, size[,] and sexual differences between Plaintiff and Defendant, by inappropriately touching her buttocks and chest area and failing to immediately respond to Plaintiff's request for Defendant to stop, causing Plaintiff to leave the room, Defendant placed Plaintiff in actual fear of imminent serious bodily injury, in the form of an emotional injury arising from Defendant's behavior.

Based on these findings, the trial court made the following conclusion of law:

3. . . . The threat of imminent emotional injury to Plaintiff as a result of Defendant's conduct was sufficient to constitute placing Plaintiff in fear of imminent serious bodily injury within the meaning [of] G.S. 50B-1(a) (2).

The trial court, therefore, entered a domestic violence protective order which excluded Defendant from the parties' residence and prohibited Defendant from having any contact with Plaintiff. The order was "effective for six months [and] subject to renewal on or before August 21, 2000."

The issues are whether: (I) issues raised in an appeal from an expired domestic violence protective order are moot and, if not, (II) the trial court's findings of fact support a conclusion that Defendant's actions placed Plaintiff "in fear of imminent serious bodily injury."

Plaintiff filed a motion in this Court to dismiss Defendant's appeal on the ground Defendant filed his notice of appeal in this Court while a motion to set aside the judgment pursuant to Rule 59 was pending in the trial court. Assuming, without deciding, that Defendant's notice of appeal was not timely, we treat Defendant's appeal as a petition for writ of certiorari and grant the petition. See Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 79, 404 S.E.2d 176, 177, disc. review denied, 329 N.C. 497, 407 S.E.2d 534 (1991); N.C.R. App. P. 2.

I

Generally, an appeal should be dismissed as moot "[w]hen events occur during the pendency of [the] appeal which cause the underlying controversy to cease to exist." In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977). Nevertheless, "even when the terms of the judgment below have been fully carried out, if collateral 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." Id.

In this case, a domestic violence protective order was issued against Defendant pursuant to N.C. Gen. Stat. § 50B-1(a) (2). Although the order, which was "effective for six months [and] subject to renewal on or before August 21, 2000," expired prior to the time Defendant's appeal was heard in this Court, Defendant 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. See N.C.G.S. § 50-13.2(a) (1999) (trial court must consider "acts of domestic violence" when determining the best interest of the child in custody proceeding). Thus, Defendant's appeal has continued legal significance and is not moot.

In addition to the collateral legal consequences, there are numerous non-legal collateral consequences to entry of a domestic violence protective order that render expired orders appealable. For example, a Maryland appellate court in addressing an appeal of an expired domestic violence protective order, noted that "a person applying for a job, a professional license, a government position, admission to an academic institution, or the like, may be asked about whether he or she has been the subject of a [domestic violence protective order]." Piper v. Layman, 726 A.2d 887, 891 (Md.Ct.Spec.App. 1999). The Piper court, therefore, held appeals from expired domestic violence protective orders are not moot because of the "stigma that is likely to attach to a person judicially determined to have committed [domestic] abuse." Id.; see also Wooldridge v. Hickey, 700 N.E.2d 296, 298 (Mass.App.Ct. 1998) (holding the defendant's appeal of expired domestic violence protective order was not moot). Based on the rationale of Piper, in addition to the continued legal significance of an appeal of an expired domestic violence protective order, we hold the issues raised by an appeal from such an order are not moot.

II

Defendant argues the trial court's findings of fact do not support a conclusion Defendant's actions placed Plaintiff "in fear of imminent serious bodily injury." Thus, the trial court erred by entering a domestic violence protective order against Defendant. We agree.

A trial court may grant a protective order "to bring about the cessation of acts of domestic violence." N.C.G.S. § 50B-3(a) (Supp. 2000). An act of 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.G.S. § 50B-1(a) (2) (1999). 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. Brandon v. Brandon, 132 N.C. App. 647, 654, 513 S.E.2d 589, 595 (1999).

In this case, the trial court found as fact that Plaintiff testified Defendant's actions made her feel "uncomfortable" and "`creepy.'" The trial court also found as fact that "Plaintiff testified [Defendant] had never physically hurt her, nor was she afraid that he would physically hurt her." 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." Accordingly, the trial court's 25 February 2000 domestic violence protective order is reversed. Although Defendant's conduct did not fall within the definition of an act of domestic violence under section 50B-1(a) (2), we note that Defendant's conduct may fall within the elements of one or more criminal statutes, such as taking indecent liberties with children under N.C. Gen. Stat. § 14-202.1.

We acknowledge the trial court found as fact that "Defendant placed Plaintiff in actual fear of imminent serious bodily injury"; however, this finding by the trial court was based on actions by Defendant that Plaintiff herself testified did not cause her fear of physical harm. Thus, this finding by the trial court cannot support its conclusion Plaintiff was placed "in fear of imminent serious bodily injury."

Reversed.

Judge CAMPBELL concurs.

Judge MCGEE dissents.


Summaries of

Smith v. Smith

North Carolina Court of Appeals
Aug 1, 2001
145 N.C. App. 434 (N.C. Ct. App. 2001)

holding appeal of expired domestic violence order not moot

Summary of this case from McCOMAS v. KIRN

holding that defendant's appeal of expired DVPO was not moot because of “ ‘stigma that is likely to attach to a person judicially determined to have committed [domestic] abuse’ ” and “the continued legal significance of an appeal of an expired domestic violence protective order” (quoting Piper v. Layman, 125 Md.App. 745, 753, 726 A.2d 887, 891 (1999))

Summary of this case from Rudder v. Rudder

holding that appeal from expired DVPO was not moot due to "collateral legal consequences" of and "stigma" attached to DVPO

Summary of this case from Lindsey v. Lindsey

holding that an appeal of an expired domestic violence order is not moot

Summary of this case from Eagle v. Johnson

stating that numerous legal and non-legal collateral consequences can occur from having a DVPO on one's record

Summary of this case from Ramirez v. Parker

acknowledging that entry of a DVPO may be considered when a person applies for a job, a professional license, a government position, or admission to an academic institution

Summary of this case from Bowden v. Washburn

stating that "[t]he test for whether an 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"

Summary of this case from Sylvester v. Sylvester

reviewing the merits of a defendant's appeal after noting the "collateral legal consequences" and "numerous non-legal collateral consequences to entry of a domestic violence protective order [against the defendant] that render expired orders appealable"

Summary of this case from Harvell v. Norris

noting that “[g]enerally, an appeal should be dismissed as moot ‘[w]hen events occur during the pendency of appeal which cause the underlying controversy to cease to exist.’ In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634. Nevertheless, ‘even when the terms of the judgment below have been fully carried out, if collateral 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.’ Id.”

Summary of this case from Ross v. Ross

In Smith, a domestic violence protective order against the defendant expired prior to the time of his appeal. Our Court held that because the defendant "may suffer collateral legal consequences as a result of the entry of the order[,]" that his appeal had "continued legal significance and [was] not moot."

Summary of this case from Thompson v. N.C. Respiratory Care Bd.

In Smith v. Smith, 145 N.C.App. 434, 436, 549 S.E.2d 912, 914 (2001), this Court specifically held that a party against whom a domestic violence protective order had been entered under N.C. Gen. Stat. § 50B-1(a)(2) could appeal even though the order was effective for only six months.

Summary of this case from Doyle v. Doyle

In Smith, the plaintiff, a twelve-year-old girl, alleged that her father touched her inappropriately on the chest and buttocks.

Summary of this case from Eatmon v. Safferman

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.

Summary of this case from Robertson v. Robertson
Case details for

Smith v. Smith

Case Details

Full title:CASSANDRA SMITH, by and through her mother, MARY E. SMITH, Plaintiff, v…

Court:North Carolina Court of Appeals

Date published: Aug 1, 2001

Citations

145 N.C. App. 434 (N.C. Ct. App. 2001)
549 S.E.2d 912

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