Shackley v. Shackley ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-774
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
NICOLE HARTFORD SHACKLEY,
Plaintiff
Pitt County
v.
No. 13 CvD 537
NORMAN HENRY SHACKLEY,
Defendant
Appeal by defendant from order entered 15 March 2013 by
Judge Ericka Y. James in Pitt County District Court. Heard in
the Court of Appeals 6 January 2014.
Nicole Shackley, pro se. No brief filed.
David C. Sutton for Defendant.
ERVIN, Judge.
Defendant Norman Henry Shackley, Jr., appeals from a
domestic violence protective order entered against him as the
result of acts of domestic violence that he was alleged to have
committed against his former wife, Plaintiff Nicole Hartford
Shackley. On appeal, Defendant argues that the trial court’s
findings that he committed acts of domestic violence against
Plaintiff lack adequate evidentiary support and that the trial
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court was biased against him. After careful consideration of
Defendant’s challenges to the trial court’s order in light of
the record and the applicable law, we conclude that the trial
court’s order should remain undisturbed.
I. Factual Background
A. Substantive Facts
Plaintiff and Defendant were married from 2006 to 2009 and
were living together as of 4 March 2013. According to
Plaintiff, Defendant threatened to kill her during the course of
numerous phone conversations that occurred between 28 February
and 3 March 2013.1 At the time that Defendant made these
threatening phone calls, Plaintiff was in Raleigh and Defendant
was in Greenville and wearing an electronic monitoring bracelet
that would have notified law enforcement officers if he changed
locations. Even so, Plaintiff testified that she was terrified
by Defendant’s threats because she believed that Defendant would
cut off the bracelet and “hunt [her] down and kill [her].”2
1
As a result of the fact that none of these conversations
were recorded, the only evidence of the threats that Defendant
allegedly made against Plaintiff was contained in Plaintiff’s
testimony.
2
On cross-examination, Defendant questioned Plaintiff
concerning the existence of certain recorded phone conversations
between Plaintiff and Defendant and argues on appeal that the
trial court violated the “best evidence” rule by refusing to
require the production of these recordings and related
transcripts. However, Plaintiff testified that the calls in
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According to Plaintiff, Defendant’s threats were motivated
by a number of factors. For example, Plaintiff testified that
Defendant had been charged with impersonating a police officer
and threatened to kill her if she did not present false
testimony in his favor in that criminal proceeding. In
addition, Plaintiff testified that Defendant had told her that,
in the event that she failed to repay $35,000 that he claimed
she owed him in connection with a plastic surgery-related bill
by the time that he was ready to move to South Carolina, he
would kill her or force her to move with him and work off the
debt. As a result of these threats, Plaintiff was “really
scared, because [she] believe[d] he [would] do it.”
In addition, Plaintiff described other incidents in which
Defendant engaged in acts of domestic violence against her that
had occurred prior to the incidents upon which Plaintiff relied
in support of her effort to obtain the issuance of a DVPO. In
2012, while Plaintiff and Defendant were having an argument,
Defendant threw Plaintiff against a closet, put her in a
headlock, twisted her neck, threw her on a bed, jumped on top of
question did not contain Defendant’s threats to kill her and had
not led to her request for the issuance of a DVPO. As a result,
since these recordings and transcripts do not relate to the
conversations that underlie Plaintiff’s request for the issuance
of a DVPO, we need not address the validity of Defendant’s
challenge to the trial court’s refusal to require the production
of these items.
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her, and threatened to kill her. On another occasion, Defendant
jumped on top of Plaintiff and threatened to kill her while
holding her by the neck. As a result of these prior
experiences, Plaintiff testified that she believed that, in the
event that Defendant were to find her, he would kill her.
B. Procedural History
On 5 March 2013, Plaintiff filed a complaint seeking the
entry of a domestic violence protective order against Defendant.
On the same day, Judge David Leech entered an ex parte domestic
violence protective order against Defendant and scheduled a
hearing concerning the issues raised by Plaintiff’s complaint
for 15 March 2013. At the conclusion of the 15 March 2013
hearing, the trial court determined that Defendant had committed
acts of domestic violence against Plaintiff and entered an order
prohibiting Defendant from committing or threatening to commit
any further acts of domestic violence against Plaintiff,
ordering Defendant to refrain from having any contact with
Plaintiff and to avoid being present at Plaintiff’s residence
and workplace, and requiring Defendant to surrender any firearms
in his possession. Defendant noted an appeal to this Court from
the trial court’s order.3
3
Although the domestic violence protective order from which
Defendant has appealed expired on 14 March 2014, this Court has
held that, since a “protective order could have collateral legal
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II. Substantive Legal Analysis
A. Validity of Trial Court’s Findings of Domestic Violence
In his first challenge to the trial court’s order,
Defendant contends that the trial court erred on the ground that
its determination to the effect that Defendant had committed
acts of domestic violence against Plaintiff lacked adequate
record support. More specifically, Defendant asserts that the
record does not support the trial court’s determination that he
engaged in acts of domestic violence against Plaintiff as
alleged in Plaintiff’s complaint given that Plaintiff’s
complaint alleged that the acts of domestic violence that he
allegedly committed against Plaintiff occurred on a single date
rather than over a period of time and given that the trial court
denied Plaintiff’s request to amend her complaint to conform to
the evidence. Defendant is not entitled to any relief on the
basis of this argument.
1. Standard of Review
When the trial court sits without a jury
regarding a [domestic violence protective
order], the standard of review on appeal is
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
and non-legal consequences—including the stigma of judicial
determination of domestic violence—this appeal [of an expired
domestic violence protective order] is not moot.” Eagle v.
Johnson, 159 N.C. App. 701, 703, 583 S.E.2d 346, 347 (2003).
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is competent evidence to support the trial
court’s findings of fact, those findings are
binding on appeal.
Kennedy v. Morgan, __ N.C. App. __, __, 726 S.E.2d 193, 195
(2012) (quoting Hensey v. Hennessy, 201 N.C. App. 56, 59, 685
S.E.2d 541, 544 (2009)). In the event that “‘different
reasonable inferences can be drawn from the evidence, the
determination of which reasonable inferences shall be drawn is
for the trial [court],’” since “‘the trial judge is present for
the full sensual effect of the spoken word, with the nuances of
meaning revealed in pitch, mimicry and gestures, appearances and
postures, shrillness and stridency, calmness and composure, all
of which add to or detract from the force of spoken words.’”
Brandon v. Brandon, 132 N.C. App. 646, 651-52, 513 S.E.2d 589,
593 (1999) (quoting Elec. Motor & Repair Co. v. Morris &
Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968), and
State v. Sessoms, 119 N.C. App. 1, 6, 458 S.E.2d 200, 203
(1995), aff’d, 342 N.C. 892, 467 S.E.2d 243, cert. denied, 519
U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d 129 (1996)) (alteration
in original). As a result, “[t]he trial court’s findings turn
in large part on the credibility of the witnesses, [and] must be
given great deference by this Court.” Brandon, 132 N.C. App. at
652, 513 S.E.2d at 593 (quotation omitted). To support entry of
a domestic violence protective order, the trial court must also
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make a conclusion of law “‘that an act of domestic violence has
occurred.’” Kennedy, __ N.C. App. at __, 726 S.E.2d at 196(quoting N.C. Gen. Stat. § 50B–3(a)). 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. Gen.
Stat. § 50B-1(a)(2). “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.” Smith ex rel. Smith v. Smith, 145 N.C. App. 434, 437,
549 S.E.2d 912, 914 (2001) (quoting Brandon, 132 N.C. App. at
654, 513 S.E.2d at 595). In the event that the trial court
determines “that an act of domestic violence has occurred, the
court shall grant a protective order restraining the defendant
from further acts of domestic violence.” N.C. Gen. Stat. § 50B-
3(a). We will now utilize this standard of review to evaluate
Defendant’s challenge to the trial court’s order.
2. Adequacy of Support for Trial Court’s Findings
In this case, the trial court found that Defendant placed
Plaintiff in fear of imminent serious bodily injury by
threatening to kill her. The trial court also found that
Defendant possessed, owned, or had access to several firearms;
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that Defendant made threats to seriously injure or kill
Plaintiff; and that “Defendant has [engaged in] a pattern of
prior conduct involving the use of violence against
[P]laintiff.” These findings are clearly sufficient to support
the issuance of a domestic violence protective order.
According to the evidence that Plaintiff presented before
the trial court, Defendant threatened to kill Plaintiff over the
phone on multiple occasions. The threats that Plaintiff claimed
that Defendant had made against her stemmed from Defendant’s
demand that she perjure herself in a criminal proceeding in
which Defendant was charged with impersonating a police officer.
In addition, Defendant threatened to kill Plaintiff if she did
not pay the $35,000 that he claimed she owed him in connection
with a plastic surgery-related bill. As a result of these
threats, Plaintiff testified that she feared for her life,
asserting that she was “really scared,” and “terrified” that
Defendant was going to kill her. As a result of the fact that
trial court findings “turn in large part on the credibility of
the witnesses” and “must be given great deference by this
Court,” Brandon, 132 N.C. App. at 652, 513 S.E.2d at 593, we
hold that Plaintiff’s testimony supports the trial court’s
determination that Defendant placed Plaintiff in fear of
imminent serious bodily injury. Moreover, given that, “where
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the trial court finds that a plaintiff is actually subjectively
in fear of imminent serious bodily injury, an act of domestic
violence has occurred pursuant to [N.C. Gen. Stat. §] 50B-
1(a)(2),” Id. at 654-55, 513 S.E.2d at 595, we further hold that
the trial court’s finding of fact that Plaintiff was “placed in
fear of imminent serious bodily injury” supports the trial
court’s conclusion that Defendant committed acts of domestic
violence against Plaintiff so that a domestic violence
protective order should be entered.
In seeking to persuade us to reach a different result,
Defendant argues that the trial court’s findings lack adequate
evidentiary support on the grounds that, while Plaintiff’s
complaint alleges that the relevant acts of domestic violence
occurred on 4 March 2013, Plaintiff testified that the phone
calls in question actually took place between 28 February and 3
March 2013 and notes that the trial court denied Plaintiff’s
request to amend her complaint to conform to the evidence
concerning the dates upon which these acts of domestic violence
occurred.4 Defendant has not, however, cited any authority in
4
Admittedly, the only date mentioned in the complaint is 4
March 2013. However, Plaintiff testified that the reference in
the complaint to 4 March 2013 related to the date upon which she
wrote the factual statement that she submitted in support of her
request for the issuance of a DVPO rather than to the dates upon
which the acts of domestic violence upon which her complaint
rested actually occurred.
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support of his contention that the discrepancy between the date-
related allegations contained in the complaint and the dates
specified in Plaintiff’s testimony deprives the domestic
violence protective order at issue here of adequate evidentiary
support. According to well-established North Carolina law, an
argument in support of which no authority is cited will be
deemed abandoned. State v. Sinnott, 163 N.C. App. 268, 273, 593
S.E.2d 439, 442-43, appeal dismissed, 358 N.C. 738, 602 S.E.2d
678 (2004), cert. denied, 544 U.S. 962, 125 S. Ct. 1740, 161 L.
Ed. 2d 604 (2005). As a result, given that the record evidence
supports the trial court’s determination that Defendant
committed acts of domestic violence against Plaintiff and given
that Defendant has failed to cite any authority in support of
his challenge to the trial court’s findings based upon the
difference between the date specified in the complaint and the
dates set out in Plaintiff’s testimony, we decline to address
this argument, State v. Latham, 157 N.C. App. 480, 486, 579
S.E.2d 443, 448, disc. review denied, 357 N.C. 509, 588 S.E.2d
376 (2003); N.C. R. App. P. 28(b)(6), and conclude that the
record contains sufficient evidence to support the trial court’s
finding that Defendant placed Plaintiff in fear of imminent
serious bodily injury by threatening to kill her and had, by
doing that, committed an act of domestic violence against her.
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B. Judicial Bias
Secondly, Defendant argues that he was deprived of his
right to a fair hearing in connection with Plaintiff’s request
for the issuance of a domestic violence protective order on the
grounds that the trial court was biased against him. In support
of this contention, Defendant argues that the trial judge’s
statement to the effect that “[b]lood is not going to be on my
hands” demonstrates that the trial court was biased against him.
Defendant is not entitled to relief from the trial court’s order
on the basis of this contention either.
“On motion of any party, a judge should disqualify
himself/herself in a proceeding in which the judge’s
impartiality may reasonably be questioned, including but not
limited to instances where . . . [t]he judge has a personal bias
or prejudice concerning a party[.]” Code of Judicial Conduct
Canon 3C(1)a. Canon 3 does not, however, impose an affirmative
duty upon members of the trial bench to disqualify themselves on
their own motion. In re Key, 182 N.C. App. 714, 719, 643 S.E.2d
452, 456, disc. review denied, 361 N.C. 428, 648 S.E.2d 506(2007) (stating that, “[w]hile [Canon 3 of the Code of Judicial
Conduct] certainly encourages a judge to recuse himself or
herself in cases where his or her ‘impartiality may reasonably
be questioned’ upon [his or her] own motion, [he or she is] not
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required to do so in the absence of a motion by a party”). In
the event that a party fails to move to disqualify the trial
judge during the course of the proceedings in the court below,
the issue of whether the trial judge should have disqualified
himself or herself is not properly preserved for purposes of
appellate review. Id. (citing State v. Love, 177 N.C. App. 614,
627–28, 630 S.E.2d 234, 243, disc. review denied, 360 N.C. 580,
636 S.E.2d 193 (2006)). A careful review of the record
presented for our review in this case indicates that Defendant
never moved to disqualify the trial court or raised the issue of
the trial court’s alleged bias in the court below in any other
manner. As a result, given Defendant’s failure “to move that
the trial judge recuse h[er]self,” he is not entitled to “raise
on appeal the judge’s alleged bias based on an undesired
outcome.” Sood v. Sood, __ N.C. App. __, __, 732 S.E.2d 603,
608, disc. review denied, 366 N.C. 417, 735 S.E.2d 336 (2012).
As a result, we hold that Defendant is not entitled to an award
of appellate relief based upon the trial court’s alleged bias in
favor of Plaintiff.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s order
provide any basis for an award of appellate relief. As a
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result, the trial court’s order should be, and hereby is,
affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).