Rudder v. Rudder , 234 N.C. App. 173 ( 2014 )

NO. COA13-424
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
ELIZABETH McDUFFIE RUDDER,
Plaintiff,
v. Carteret County
No. 10 CVD 1577
WILLIAM OVERTON RUDDER,
Defendant.
Appeal by defendant from orders entered 23 November 2010 by
Judge L. Walter Mills and 28 September 2012 by Judge Kirby Smith
in Carteret County District Court. Heard in the Court of
Appeals 23 September 2013.
No brief filed on behalf of plaintiff-appellee.
Wyrick Robbins Yates & Ponton, LLP, by Tobias S. Hampson,
for defendant-appellant.
GEER, Judge.
Defendant William Overton Rudder appeals from an ex parte
domestic violence protection order entered 23 November 2010
("the ex parte DVPO") and a one-year DVPO entered 28 September
2012 ("the September 2012 DVPO"). Defendant primarily contends
that the trial court erred in entering the September 2012 DVPO
after the ex parte DVPO was in effect for more than 18 months,
but then expired without being renewed. We hold that because at
-2-
the time the ex parte DVPO expired without being renewed, it had
been in effect for more than a year, the trial court did not
have authority to enter the September 2012 DVPO that was based
upon the same complaint. We, therefore, vacate the September
2012 DVPO. Because, however, we find defendant's arguments
regarding the ex parte DVPO unpersuasive, we affirm that order.
Facts
On 23 November 2010, plaintiff Elizabeth McDuffie Rudder
filed a complaint and motion for a DVPO against defendant, her
husband. Plaintiff had permanently moved out of the marital
home 14 November 2010. Plaintiff's verified complaint alleged:
On November 1, 2010, I confronted Defendant
about having an extra-marital affair.
Defendant threw me on a couch, jumped on top
of me and fractured my rib with his knee.
The injury was documented by a physician.
Defendant has attacked me physically on
numerous occasions over the course of many
years, including hitting me, throwing me on
the floor and shoving me. Defendant
encouraged me to kill myself by putting a
gun in front of me and telling me to pull
the trigger. Defendant has pointed a gun at
me and said "click." Defendant has
threatened to kill me and my immediate
family.
The trial court entered an ex parte DVPO on the same day
that plaintiff filed her complaint. The order found that
defendant had committed acts of domestic violence against
plaintiff, that there was a danger of future acts of domestic
-3-
violence against plaintiff, and that defendant's conduct
required that he surrender all firearms, ammunition, and gun
permits. A "Notice of Hearing on Domestic Violence Protective
Order" was issued, which scheduled a hearing on 6 December 2010
for the purpose of determining "whether the [23 November 2010 ex
parte] Order will be continued."1 (Emphasis added.)
Thereafter, approximately 13 orders were entered continuing
the hearing on the ex parte DVPO. The first continuance order
was entitled "ORDER CONTINUING DOMESTIC VIOLENCE HEARING AND EX
PARTE ORDER" and noted that "[t]his matter was scheduled for
hearing for emergency relief pursuant to G.S. 50B-2."2 This
order also provided, in pre-printed text, that "this hearing is
continued to the date and time specified below to allow for
proper service upon the defendant." However, it is not
contested that defendant was actually served on 23 November
2010, so it appears that this form was used for convenience,
with little regard for its substantive content. In handwriting,
the order stated that "[t]he parties agree to continue this
matter to resolve the marital issues without prejudice to either
party. The parties agree to not dissipate the marital assets
1
This order was on the form entitled "NOTICE OF HEARING ON
DOMESTIC VIOLENCE PROTECTIVE ORDER," AOC-CV-305, Rev. 6/2000
Administrative Office of the Courts.
2
This order was on the form entitled "ORDER CONTINUING
DOMESTIC VIOLENCE HEARING AND EX PARTE ORDER," AOC-CV-316, Rev.
12/04.
-4-
except for reasonable living expenses." The order further
specified that "[t]he Court orders that the ex parte order
entered in this case is continued in effect until the date of
the hearing set above."
Nearly all of the other continuance orders were on the same
form and contained the same pre-printed language that the
hearing was being continued to allow time for service on the
defendant. Some of the continuance orders further identified,
in handwriting, the reason for the continuances as being, for
example, to allow, by consent, the parties time to "resolve the
marital issues"; by consent, to address matters in other pending
litigation involving the parties; based upon secured leave by
counsel; and because of the inability of the trial court to hear
the matter due to other cases on the calendar.
The final continuance order entered 17 May 2012 was on the
same form and included the same language as the first
continuance order: "This matter was scheduled for hearing for
emergency relief pursuant to G.S. 50B-2." This order scheduled
a hearing for 9:30 a.m. on 4 June 2012. On 4 June 2012,
however, no hearing took place, the trial court did not enter an
additional continuance, and the court did not renew the existing
ex parte DVPO. The ex parte DVPO, therefore, expired on 4 June
2012.
-5-
On 6 June 2012, defendant filed a motion pursuant to N.C.
Gen. Stat. § 50B-3.1(f), requesting return of firearms seized
from him pursuant to the ex parte DVPO. On 7 June 2012,
plaintiff filed a Rule 60 motion, seeking relief from the 17 May
2012 continuance order "on the grounds of excusable neglect,
clerical error, and mistake in that the date set for hearing
this matter was explicitly intended to be heard during the June
4, 2012 term of court as opposed to the specific day of June 4,
2012." The record contains no indication that the trial court
ever ruled on plaintiff's Rule 60 motion. Defendant, however,
subsequently filed additional motions for return of his firearms
on 12 June 2012 and 21 June 2012, using a pro se form.
The trial court calendared hearings on 31 August 2012 and
21 September 2012 to address various discovery-related motions
in a related but separate divorce proceeding, as well as
defendant's motion for return of firearms. At the hearing,
plaintiff conceded that the ex parte DVPO had expired, but
requested that the trial court nonetheless enter a one-year DVPO3
3
N.C. Gen. Stat. § 50B-3 (2013) provides that "[p]rotective
orders entered pursuant to this Chapter shall be for a fixed
period of time not to exceed one year." We first note that this
subsection, taken in context, clearly refers only to a DVPO
entered after service of process and a hearing held after notice
to the defendant, even though the general term "protective
order" is used. N.C. Gen. Stat. § 50B-2 (2013) specifically
addresses "temporary orders" and provides for a limited duration
of an ex parte DVPO of 10 days, unless the ex parte order is
-6-
based upon the underlying complaint. The trial court allowed
plaintiff to present evidence to support the issuance of a one-
year DVPO at the 31 August 2012 hearing. Defendant presented
his evidence at the hearing on 21 September 2012.
On 28 September 2012, the trial court entered a one-year
DVPO, finding that defendant had, nearly two years earlier,
intentionally caused bodily injury to the plaintiff, placed her
in fear of imminent serious bodily injury, and placed her in
fear of continued harassment that rose to such a level as to
inflict substantial emotional distress. Specifically, the trial
court found:
On November 1, 2010, the defendant shoved
the plaintiff down on a couch and jumped on
top of her. The defendant threatened to
kill the plaintiff and her immediate family.
The defendant pointed a gun at the plaintiff
and informed her he could kill her without
anyone ever knowing. The defendant placed a
gun in front of the plaintiff and told her
to pull the trigger and kill herself. Over
the course of the marriage, the defendant
physically assaulted the plaintiff and
committed further acts of domestic violence.
Based on its findings, the trial court concluded that the
"defendant has committed acts of domestic violence against the
plaintiff," that "[t]here is danger of serious and immediate
continued by the trial court. We are, therefore, referring to
this DVPO as a "one-year DVPO" to distinguish it from the ex
parte DVPO, although we recognize that a DVPO entered after
service and notice to the defendant could be entered for a fixed
period of time less than one year.
-7-
injury to the plaintiff," and that "[t]he defendant's conduct
requires that he[] surrender all firearms, ammunition and gun
permits." The court entered a DVPO effective for one year.
Defendant timely appealed both the ex parte DVPO and the
September 2012 DVPO to this Court.
Discussion
Initially, we note that the ex parte DVPO expired 4 June
2012, and the one-year DVPO was set to expire 28 September 2013,
five days after this case was heard by this Court. This appeal
is not, however, moot. See Smith v. Smith, 145 N.C. App. 434,
437, 549 S.E.2d 912, 914 (2001) (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))).
As explained in Smith, "there are numerous non-legal
collateral consequences to entry of a domestic violence
protective order that render expired orders appealable. For
example, . . . '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
-8-
has been the subject of a [domestic violence protective
order].'" Id. (quoting Piper, 125 Md. App. at 753, 726 A.2d at
891). We, therefore, may properly review both the ex parte DVPO
and the September 2012 DVPO.
I
In reviewing the ex parte DVPO entered 23 November 2010, we
determine "'whether there was competent evidence to support the
trial court's findings of fact and whether its conclusions of
law were proper in light of such facts. Where there is
competent evidence to support the trial court's findings of
fact, those findings are binding on appeal.'" Hensey v.
Hennessy, 201 N.C. App. 56, 59, 685 S.E.2d 541, 544 (2009)
(quoting Burress v. Burress, 195 N.C. App. 447, 449-50, 672
S.E.2d 732, 734 (2009)).
Defendant argues (1) that the trial court's findings of
fact were insufficient to support its conclusion that "defendant
has committed acts of domestic violence against the plaintiff"
and (2) that specific facts do not support its conclusion that
"it clearly appears that there is a danger of acts of domestic
violence against the plaintiff." We disagree.
The trial court used pre-printed form AOC-CV-304, Rev.
8/09, entitled "EX PARTE DOMESTIC VIOLENCE ORDER OF PROTECTION"
for its order. The form contains 12 pre-printed "Additional
-9-
Findings." Before each numbered finding is a box corresponding
to the finding as a whole. Some of the pre-printed findings
contain subparts with additional boxes to check, blank spaces to
fill in, or space to provide additional information.
In this case, the trial court made the following relevant
findings of fact by marking the boxes next to certain pre-
printed provisions and adding the information set out below in
italics:
[_] 2. That on . . . 11-01-2010, the
defendant
[x] a. . . . [x] intentionally
caused bodily injury to
[x] the plaintiff . . .
[x] b. placed in fear of
imminent serious bodily
injury [x] the plaintiff
[x] a member of the
plaintiff's family [x] a
member of the plaintiff's
household
[x] c. placed in fear of
continued harassment that
rises to such a level as
to inflict substantial
emotional distress [x] the
plaintiff [x] a member of
plaintiff's family [x] a
member of plaintiff's
household
. . . .
[x] 3. The defendant is in possession of,
owns or has access to firearms,
-10-
ammunition, and gun permits
described below. . . .
The Defendant is in possession of
hundreds of firearms and
approximately 1000 boxes of
ammunition which are spread
through the marital residence.
[x] 4. The defendant
[x] a. . . . [x] threatened to
use a deadly weapon against the
[x] plaintiff . . .
[x] b. has a pattern of prior
conduct involving the . . . [x]
threatened use of violence with a
firearm against persons
[x] c. made threats to seriously
injure or kill the [x] plaintiff .
. .
. . . .
[x] e. inflicted serious injuries
upon the [x] plaintiff . . . in
that . . . :
Broken [sic] her rib.
(Emphasis added to indicate information added by trial court to
form.)
Defendant argues that by failing to mark the first box of
Finding 2, which corresponds to Finding 2 as a whole, the trial
court did not actually intend to make any of the findings marked
under paragraph 2. It is apparent, however, that this omission
was merely a clerical error.
-11-
"'Clerical error' has been defined . . . as: 'An error
resulting from a minor mistake or inadvertence, esp. in writing
or copying something on the record, and not from judicial
reasoning or determination.'" State v. Jarman, 140 N.C. App.
198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black's Law
Dictionary 563 (7th ed. 1999)). Clerical errors include
mistakes such as inadvertently checking the wrong box on pre-
printed forms. See In re D.D.J., D.M.J., 177 N.C. App. 441,
444, 628 S.E.2d 808, 811 (2006).
Finding 2 on Form AOC-CV-304 corresponds to the definition
of domestic violence set out in N.C. Gen. Stat. § 50B-1(a),
which provides:
(a) Domestic violence means the
commission of one or more of the following
acts upon an aggrieved party or upon a minor
child residing with or in the custody of the
aggrieved party by a person with whom the
aggrieved party has or has had a personal
relationship, but does not include acts of
self-defense:
(1) Attempting to cause bodily
injury, or intentionally
causing bodily injury; or
(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. 14-277.3A, that rises to
such a level as to inflict
-12-
substantial emotional
distress; or
(3) Committing any act defined in
G.S. 14-27.2 through G.S. 14-
27.7.
The statute thus specifies several alternative ways in which one
may commit an act of domestic violence.
The subparts of Finding 2 on Form AOC-CV-304 set out all
the possible alternative findings that could support a finding
of fact that the defendant committed an act of domestic
violence. The form allows the trial court to indicate which
alternatives apply by marking the relevant subparts. Thus, by
checking the box next to Finding 2, the trial court indicates an
ultimate finding of fact: that defendant committed an act of
domestic violence. By marking the boxes next to the subparts of
Finding 2, the trial court then provides more specific findings
regarding how the defendant committed an act of domestic
violence and against whom.
Here, the trial court provided the "date of most recent
conduct" in the first line of Finding 2 and marked the subparts
indicating what acts the defendant committed and against whom.
Additionally, the trial court concluded as a matter of law that
the defendant committed acts of domestic violence against the
plaintiff. Under these circumstances, it is apparent that the
trial court intended to mark the box next to Finding 2 and that
-13-
its failure to do so was inadvertent and merely a clerical
error. The error should, however, be corrected on remand. See
State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696
(2008) ("When, on appeal, a clerical error is discovered in the
trial court's judgment or order, it is appropriate to remand the
case to the trial court for correction because of the importance
that the record 'speak the truth.'" (quoting State v. Linemann,
135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999))).
Defendant next argues that even if it is presumed that the
trial court intended to mark Finding 2, the trial court's
findings of fact are still insufficient. An ex parte DVPO may
be issued "if it clearly appears to the court from specific
facts shown, that there is a danger of acts of domestic violence
against the aggrieved party . . . ." N.C. Gen. Stat. § 50B-
2(c)(1). This Court has interpreted this provision to mean that
"in order to issue an ex parte DVPO, the trial court must make
findings of fact which include 'specific facts' which
demonstrate 'that there is a danger of acts of domestic violence
against the aggrieved party[.]'" Hensey, 201 N.C. App. at 61,
685 S.E.2d at 546 (quoting N.C. Gen. Stat. § 50B-2(c)).
Defendant argues that the ex parte DVPO in this case does not
contain the required "specific facts."
-14-
In Hensey, the ex parte DVPO, which also was a pre-printed
form order, did not itself set forth specific findings of facts
in the DVPO, but rather appeared to incorporate by reference the
allegations of the complaint. Id. at 62, 685 S.E.2d at 546.
This Court concluded that "while it would be preferable for the
trial court to set forth the 'specific facts' which support its
order separately, instead of by reference to the complaint, the
ex parte DVPO, read in conjunction with plaintiff's complaint,
does provide sufficient information upon which we may review the
trial court's decision to issue the ex parte DVPO." Id. at 64,
685 S.E.2d at 547.
In reaching its conclusion, the Court in Hensey rejected
the defendant's argument that the ex parte DVPO must comply with
Rule 52 of the Rules of Civil Procedure, which requires that a
trial court sitting without a jury shall "'find the facts
specially.'" Id. at 62-63, 685 S.E.2d at 546-57. The Court
concluded that ex parte orders under N.C. Gen. Stat. § 50B-2
"need not contain findings and conclusions that fully satisfy
the requirements of [Rule 52]" because such a requirement "would
be inconsistent with the fundamental nature and purpose of an ex
parte DVPO, which is intended to be entered on relatively short
notice in order to address a situation in which quick action is
-15-
needed in order to avert a threat of imminent harm." 201 N.C.
App. at 63, 685 S.E.2d at 547.
Here, in the space provided under Finding 2, the DVPO
neither includes specific facts nor references the allegations
of the complaint, although Finding 2 does specify the date of
the most recent conduct by defendant. In addition, however,
Finding 4 finds that defendant had threatened to use a deadly
weapon against plaintiff, had a pattern of prior conduct
involving the threatened use of violence with a firearm, had
made threats to seriously injure the plaintiff, and had
inflicted serious injuries on plaintiff by breaking her rib.
While defendant argues that Finding 4 does not indicate whether
defendant intentionally broke plaintiff's rib, that finding is
included in Finding 2.
We hold that the combination of Finding 2 and Finding 4 are
minimally adequate to supply the required "specific facts"
necessary to support the conclusion that the defendant committed
acts of domestic violence against the plaintiff and that "there
is a danger of acts of domestic violence against the plaintiff."
We, therefore, affirm the ex parte DVPO. We note, however, that
the better practice would be to include more specific facts
under Finding 2 explaining the basis for the ultimate findings
made by checking the boxes on the pre-printed form.
-16-
II
Defendant next contends that the trial court erred by
entering the September 2012 DVPO when the ex parte DVPO had
expired after being in effect for more than a year. We agree.
In this case, the ex parte DVPO continued in effect for
more than 18 months until it expired on 4 June 2012. We
question whether the General Assembly intended for an ex parte
DVPO to continue in effect for this length of time based on
repeated continuances -- in this case, a total of 13. See N.C.
Gen. Stat. § 50B-2(c)(5) ("Upon the issuance of an ex parte
order under this subsection, a hearing shall be held within 10
days from the date of issuance of the order or within seven days
from the date of service of process on the other party,
whichever occurs later. A continuance shall be limited to one
extension of no more than 10 days unless all parties consent or
good cause is shown. The hearing shall have priority on the
court calendar."4 (Emphasis added)). We need not, however,
specifically address that issue in order to resolve this appeal.
The North Carolina Domestic Violence Act, set out in
Chapter 50B of the General Statutes, specifies the procedural
4
The emphasized portion of this provision was added 1
October 2012 and is applicable to actions and motions filed on
or after that date. 2012 N.C. Sess. Law 20 §§ 1, 3. Therefore,
it is not applicable to this case. Nevertheless, it is
indicative of the General Assembly's current intent to limit the
length of time an ex parte DVPO may continue in effect.
-17-
framework for the issuance of DVPOs. The statute defines a
"protective order" as "any order entered pursuant to this
Chapter upon hearing by the court or consent of the parties."
N.C. Gen. Stat. § 50B-1(c). As this Court explained in State v.
Poole, ___ N.C. App. ___, ___, 745 S.E.2d 26, 32, appeal
dismissed and disc. review denied, ___ N.C. ___, 749 S.E.2d 885(2013), because an ex parte DVPO is entered following a hearing,
the phrase "protective order" when used in Chapter 50B
encompasses both ex parte DVPOs and one-year DVPOs. Although
the types of protection the two kinds of orders can provide are
essentially the same, there are necessarily some procedural
differences between an ex parte DVPO and a one-year DVPO.
As noted in Hensey, an ex parte DVPO "is intended to be
entered on relatively short notice in order to address a
situation in which quick action is needed in order to avert a
threat of imminent harm." 201 N.C. App. at 63, 685 S.E.2d at
547. In contrast, the one-year DVPO is entered only after
notice to the defendant and an opportunity to participate in a
full adversarial hearing. Id. at 61, 685 S.E.2d at 545. It is
intended to address issues for a longer time period, although
normally not more than three years, with temporary custody
provisions limited to one year. See N.C. Gen. Stat. § 50B-3(b).
-18-
Unfortunately, Chapter 50B does not clearly distinguish
between some of the characteristics of an ex parte order and a
DVPO entered after notice to the defendant and an opportunity
for a full adversarial hearing. However, reading the entire
Chapter in context, it is apparent that N.C. Gen. Stat. § 50B-2
addresses the procedure and time limitations for ex parte or
temporary orders, while the substantive protective provisions of
any type of protective order are addressed by N.C. Gen. Stat. §
50B-3, and the time limitations of the one-year DVPO are
addressed by N.C. Gen. Stat. § 50B-3(b).5
N.C. Gen. Stat. § 50B-3(b) specifies what relief a
"protective order" may grant and, with respect to the time
limitations for the one-year DVPO, provides:6
Protective orders entered pursuant to this
Chapter shall be for a fixed period of time
not to exceed one year. The court may renew
a protective order for a fixed period of
time not to exceed two years, including an
5
It would be absurd to read the provision of N.C. Gen. Stat.
§ 50B-3(b) that "protective orders entered pursuant to this
Chapter shall be for a fixed period of time not to exceed one
year" as applying to an emergency order under N.C. Gen. Stat. §
50B-2(b) or an ex parte order under N.C. Gen. Stat. § 50B-2(c),
since those sections include specific time requirements
applicable to those orders. It would seem obvious that the
statute would not permit the court to enter an ex parte order
that lasted for a full year. But, as noted above, N.C. Gen.
Stat. § 50B-1(c) (2013) also defines the term "protective order"
broadly, to include "any order entered pursuant to this Chapter
upon hearing by the court or consent of the parties."
6
The ex parte DVPO's time limitations are specifically
addressed by N.C. Gen. Stat. § 50B-2(b) and (c).
-19-
order that previously has been renewed, upon
a motion by the aggrieved party filed before
the expiration of the current order;
provided, however, that a temporary award of
custody entered as part of a protective
order may not be renewed to extend a
temporary award of custody beyond the
maximum one-year period. The court may renew
a protective order for good cause. The
commission of an act as defined in G.S. 50B-
1(a) by the defendant after entry of the
current order is not required for an order
to be renewed.
In this case, we are addressing the plaintiff's request for
the trial court to enter a one-year DVPO based upon an ex parte
DVPO that had already remained in effect for more than a year
based upon continuances of the hearing. Even if we assume,
without deciding, that an ex parte DVPO may lawfully continue
for more than a year through the mechanism of repeated
continuances, in this case, the ex parte DVPO ultimately expired
on 4 June 2012 when no order was entered continuing the ex parte
DVPO in effect after that date.
We also note that N.C. Gen. Stat. § 50B-3(b) provides that
even for the renewal of a one-year DVPO, the motion for renewal
must be filed before the expiration of the existing order. When
the motion to renew is filed prior to expiration of the one-year
DVPO, the plaintiff must show "good cause" although the
plaintiff need not show commission of an additional act of
domestic violence after the entry of the original DVPO. This
-20-
language implies that where even a one-year DVPO has expired,
the plaintiff would need to allege and prove commission of an
additional, more recent act of domestic violence to obtain a new
order. That is, the plaintiff can rely upon the original acts
that formed the basis for the issuance of the original ex parte
DVPO and/or one-year DVPO for a limited time. Of course, the
plaintiff is not prevented in any way from seeking a new DVPO in
the event of new and additional acts of domestic violence, but
the renewal and extensions of a DVPO based upon a particular act
are limited by the statute.
The DVPO at issue here is clearly and exclusively based
upon an act that occurred prior to the expiration of the ex
parte order. The orders continuing the hearing on the ex parte
order, including the one that set the matter for 4 June 2012,
had scheduled the case "for hearing for emergency relief
pursuant to G.S. 50B-2" –- and not for entry of an independent
order under N.C. Gen. Stat. § 50B-3. The orders referred back
to the original ex parte order by noting that "[t]he Court
orders that the ex parte order entered in this case is continued
in effect until the date of the hearing set above." Ultimately,
the ex parte order then expired by its own terms.
Applying N.C. Gen. Stat. § 50B-3(b), the ex parte DVPO had
already been in effect for more than one year (the maximum
-21-
permissible length of time even for a DVPO entered upon a full
adversarial hearing under N.C. Gen. Stat. § 50B-2(c)(5)). We
also note that no one-year DVPO that was subject to renewal
under N.C. Gen. Stat. 50B-3 had ever been entered. Based upon
the orders entered continuing the ex parte DVPO and setting this
matter for hearing, upon expiration of the ex parte order after
more than a year, the trial court no longer had jurisdiction
under the original complaint to enter an order further extending
the DVPO.
We note that this situation is distinguished from a case in
which a plaintiff files a civil action or motion seeking a DVPO,
but either because the plaintiff did not request an immediate ex
parte order or because the trial court declined to issue an
immediate ex parte order, the trial court has not entered an ex
parte order and has scheduled a hearing upon the complaint or
motion to consider issuance of a DVPO after service of process
and notice of hearing to the defendant, under N.C. Gen. Stat. §
50B-2(b) (emphasis added):
A party may move the court for emergency
relief if he or she believes there is a
danger of serious and immediate injury to
himself or herself or a minor child. A
hearing on a motion for emergency relief,
where no ex parte order is entered, shall be
held after five days' notice of the hearing
to the other party or after five days from
the date of service of process on the other
party, whichever occurs first, provided,
-22-
however, that no hearing shall be required
if the service of process is not completed
on the other party. If the party is
proceeding pro se and does not request an ex
parte hearing, the clerk shall set a date
for hearing and issue a notice of hearing
within the time periods provided in this
subsection, and shall effect service of the
summons, complaint, notice, and other papers
through the appropriate law enforcement
agency where the defendant is to be served.
In fact, Form AOC-CV-305, Rev. 6/2000 has pre-printed
language to provide notice of a hearing to the defendant in just
that situation:
2. A hearing will be held before a
district court judge at the date, time and
location indicated below. At that hearing
it will be determined whether emergency
relief in protecting the plaintiff and the
plaintiff's child(ren) should be granted.
This option was not checked in this case since an ex parte order
was entered, and the first option, as noted above, was checked
instead.
This case also does not present the issue whether a hearing
upon a domestic violence complaint or motion, when no ex parte
order was entered, could be continued repeatedly, even for more
than a year, and we do not address that situation. In the case
before us, plaintiff and the trial court proceeded as directed
by the ex parte order issued under N.C. Gen. Stat. § 50B-2(c).
As noted above, the ex parte DVPO was properly entered, remained
in effect for 18 months by serial continuances of the order, and
-23-
then expired by its own terms. Thus, we hold that when an ex
parte DVPO expires beyond the time limitations of N.C. Gen.
Stat. § 50B-3(b) for a one-year DVPO without a motion to renew,
the trial court no longer has authority to enter an order
effectively further extending the expired DVPO, as the trial
court would also be unable to extend even a one-year DVPO in
this situation without a motion to renew.7
Because the trial court, in this case, lacked authority to
enter the September 2012 order after the ex parte DVPO expired
more than 18 months after its original entry, we vacate the
September 2012 DVPO and remand for a hearing on defendant's
motion for return of firearms. Because of our disposition of
this appeal, we need not address defendant's remaining arguments
regarding the September 2012 DVPO.
Affirmed in part, vacated in part, and remanded in part.
Chief Judge MARTIN and Judge STROUD concur.
7
As plaintiff here did not file a motion to renew under N.C.
Gen. Stat. § 50B-3(b), we do not address whether an ex parte
DVPO is actually subject to renewal in this manner, nor do we
mean to suggest that it could be, particularly given the
limitations of N.C. Gen. Stat. § 50B-2(c)(5).