{ "id": 8237484, "name": "DONNA WORNSTAFF, Plaintiff-Appellee v. DON RAY WORNSTAFF, Defendant-Appellant", "name_abbreviation": "Wornstaff v. Wornstaff", "decision_date": "2006-09-19", "docket_number": "No. COA05-1657", "first_page": "516", "last_page": "524", "citations": [ { "type": "official", "cite": "179 N.C. App. 516" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "355 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "497" } ], "opinion_index": 0 }, { "cite": "319 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740986 ], "year": 1987, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0449-01" ] }, { "cite": "549 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "914", "parenthetical": "\"[A]n appeal should be dismissed as moot when... the underlying controversy . . . ceasefs] to exist.\"" }, { "page": "914", "parenthetical": "internal quotes and citation omitted" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438328 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "436", "parenthetical": "\"[A]n appeal should be dismissed as moot when... the underlying controversy . . . ceasefs] to exist.\"" }, { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0434-01" ] }, { "cite": "453 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518948, 2517098, 2517646, 2517202, 2520243 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0669-05", "/nc/338/0669-02", "/nc/338/0669-01", "/nc/338/0669-04", "/nc/338/0669-03" ] }, { "cite": "449 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524783 ], "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0513-01" ] }, { "cite": "513 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "595" }, { "page": "594" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239625 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "654-55" }, { "page": "652" }, { "page": "654-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0646-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-277.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "580 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "13" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188322 ], "year": 2003, "pin_cites": [ { "page": "643" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0638-01" ] }, { "cite": "610 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "477", "parenthetical": "upheld stalking conviction when the defendant became \"very clingy and possessive,\" called the victim multiple times, and accused the victim of making sexual advances to her" } ], "opinion_index": 1 }, { "cite": "169 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469886 ], "year": 2005, "pin_cites": [ { "page": "338", "parenthetical": "upheld stalking conviction when the defendant became \"very clingy and possessive,\" called the victim multiple times, and accused the victim of making sexual advances to her" } ], "opinion_index": 1, "case_paths": [ "/nc-app/169/0331-01" ] }, { "cite": "596 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "374" } ], "opinion_index": 1 }, { "cite": "164 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8899393 ], "year": 2004, "pin_cites": [ { "page": "593" } ], "opinion_index": 1, "case_paths": [ "/nc-app/164/0588-01" ] }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "215" } ], "opinion_index": 1 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "pin_cites": [ { "page": "336" } ], "opinion_index": 1, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "280 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "303 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571975, 8572010, 8571948, 8572045, 8571922 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/303/0180-03", "/nc/303/0180-04", "/nc/303/0180-02", "/nc/303/0180-05", "/nc/303/0180-01" ] }, { "cite": "275 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "275" } ], "opinion_index": 1 }, { "cite": "51 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643360 ], "year": 1981, "pin_cites": [ { "page": "105" } ], "opinion_index": 1, "case_paths": [ "/nc-app/51/0103-01" ] }, { "cite": "136 L. Ed. 2d 129", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1996, "opinion_index": 1 }, { "cite": "519 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11640836, 11640517, 11640572, 11640551, 11640488, 11640877, 11640624, 11640670, 11640595, 11640917, 11640761, 11640731, 11640700, 11640798, 11640639 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/us/519/0873-13", "/us/519/0873-02", "/us/519/0873-04", "/us/519/0873-03", "/us/519/0873-01", "/us/519/0873-14", "/us/519/0873-06", "/us/519/0873-08", "/us/519/0873-05", "/us/519/0873-15", "/us/519/0873-11", "/us/519/0873-10", "/us/519/0873-09", "/us/519/0873-12", "/us/519/0873-07" ] }, { "cite": "467 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 1 }, { "cite": "342 N.C. 892", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796165 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/nc/342/0892-01" ] }, { "cite": "458 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "203" } ], "opinion_index": 1 }, { "cite": "119 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913477 ], "year": 1995, "pin_cites": [ { "page": "6" } ], "opinion_index": 1, "case_paths": [ "/nc-app/119/0001-01" ] }, { "cite": "162 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "613" }, { "page": "652" } ], "opinion_index": 1 }, { "cite": "2 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551022 ], "year": 1968, "pin_cites": [ { "page": "75" } ], "opinion_index": 1, "case_paths": [ "/nc-app/2/0072-01" ] }, { "cite": "549 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "914", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 50B-3(a)" }, { "page": "914" } ], "opinion_index": 1 }, { "cite": "145 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438328 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "437", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 50B-3(a)" }, { "page": "437" } ], "opinion_index": 1, "case_paths": [ "/nc-app/145/0434-01" ] }, { "cite": "513 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "593", "parenthetical": "quoting Repair Co. v. Morris & Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968)" }, { "page": "593" }, { "page": "594", "parenthetical": "reversing domestic violence protective order because the trial court's findings of fact failed to support its conclusions of law" }, { "page": "595", "parenthetical": "reversing domestic violence protective order because findings that the defendant's conduct caused the plaintiff to \"feel uncomfortable\" failed to support a conclusion the defendant placed the plaintiff in fear" }, { "page": "595", "parenthetical": "reversing domestic violence protective order because trial court failed to enter findings regarding the plaintiff's subjective fear of imminent serious bodily injury" } ], "opinion_index": 1 }, { "cite": "132 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239625 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "651", "parenthetical": "quoting Repair Co. v. Morris & Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968)" }, { "page": "654" }, { "page": "654" }, { "page": "654-55" } ], "opinion_index": 1, "case_paths": [ "/nc-app/132/0646-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-277.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 726, "char_count": 18126, "ocr_confidence": 0.75, "pagerank": { "raw": 1.6244019533648893e-07, "percentile": 0.6878580565893996 }, "sha256": "7e886b8a7b730d1a74c944cad9897485484da9d3ed3208a536e43226e0c93400", "simhash": "1:9fe955aa725e3f44", "word_count": 2939 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "DONNA WORNSTAFF, Plaintiff-Appellee v. DON RAY WORNSTAFF, Defendant-Appellant" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant Don Ray Womstaff appeals from a trial court\u2019s entry of a protective order against him for alleged acts of domestic violence against Plaintiff Donna Wornstaff. Because there is competent evidence in the record to support the trial court\u2019s finding that Ms. Wornstaff was in fear of continued harassment under section 50B-l(a)(2) of the North Carolina General Statutes, we affirm the trial court\u2019s order.\nThe facts pertinent to this appeal indicate that the parties married in 1988; had one child born in 1992; owned a business, jointly; and separated in May 2005.\nAccording to Mr. Womstaff, on 31 July 2005, upon discovering that his telephone and power lines were cut off at his home, he decided to go to the couple\u2019s jointly-owned business because he wanted to make sure that nothing had happened to it. He called the police, asking that an officer accompany him to the business because \u201cthings were awry at his house.\u201d Once there, Mr. Wornstaff met the officer and retrieved the key from the manager on duty because the business was closed.\nAbout an hour later, Ms. Womstaff arrived. An argument ensued, during which Mr. Womstaff asked Ms. Wornstaff, \u201cWould you like to hurt me? Would you like to kill me and hit me? Would that make you feel better?\u201d According to Ms. Womstaff, Mr. Womstaff picked up a stapler, banged it on the counter and in his hand, and threw a water bottle in her direction. Ms. Wornstaff asked the officer to remove Mr. Wornstaff, but he refused since Mr. Womstaff was a joint owner in the business. Ms. Wornstaff left the business, returned the next morning, and noticed that Mr. Wornstaff was still present. Thereafter, she filed a complaint seeking a domestic violence protective order against Mr. Wornstaff.\nAt the hearing on her complaint and motion for a domestic violence protective order, Ms. Womstaff further stated that during her encounter with Mr. Wornstaff at their business on 31 July, Mr. Womstaff pushed her out of his way, that she was scared, that she thought Mr. Wornstaff was \u201cout of control,\u201d and that he could have eventually hit her with something. Ms. Wornstaff also testified that she and Mr. Womstaff had prior confrontations that included yelling.\nThe trial court found that Mr. Wornstaff had committed domestic violence against Ms. Womstaff and entered a domestic violence protective order against him for one year. Mr. Womstaff appeals to this Court, arguing that (I) the trial court\u2019s findings of fact are not supported by competent evidence; and (II) the findings of fact do not support the trial court\u2019s conclusion of law.\nI.\nMr. Wornstaff first contends that there was insufficient evidence to support the trial court\u2019s finding that he committed an act of domestic violence, against Ms. Womstaff. He argues that his actions were not shown to rise to the necessary level of continued harassment as defined in section 14-277.3 of the North Carolina General Statutes. We disagree.\nSection 50B-l(a)(2) of the North Carolina General Statutes defines domestic violence as \u201c[p]lacing the aggrieved party or a member of the aggrieved party\u2019s 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.\u201d N.C. Gen. Stat. \u00a7 50B-1 (a)(2) (2005). Harassment is defined as \u201cknowing conduct. . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.\u201d N.C. Gen. Stat. \u00a7 14-277.3 (2005). The plain language of the statute requires the trial court to apply only a subjective test to determine if the aggrieved party was in actual fear; no inquiry is made as to whether such fear was objectively reasonable under the circumstances. Brandon v. Brandon, 132 N.C. App. 646, 654-55, 513 S.E.2d 589, 595 (1999).\nHere, the trial court found that, by yelling at her, Mr. Womstaff placed Ms. Womstaff in fear of continued harassment. Ms. Womstaff testified that Mr. Womstaff yelled, \u201cWould you like to hurt me? Would you like to kill and hit me? Would that make you feel better?\u201d, and that he banged the stapler on the counter, threw a water bottle in her direction, and refused to leave the jointly-owned business during the late night hours. Ms. Womstaff further testified that she is afraid of Mr. Womstaff, and she thinks that he is \u201cout of control.\u201d Upon this evidence, the trial court entered the finding of fact that Ms. Womstaff was placed in fear of continued harassment that rose to such a level as to inflict substantial emotional distress.\nWhere the trial judge sits as the finder of fact, \u201cand where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial judge.\u201d Sharp v. Sharp, 116 N.C. App. 513, 530, 449 S.E.2d 39, 48 (citation omitted), disc. review denied, 338 N.C. 669, 453 S.E.2d 181 (1994). \u201cThe trial judge has the authority to believe all, any, or none of the testimony.\u201d Id. As in previous cases, \u201c[w]e emphasize that the trial court was present to see and hear the inflections, tone, and temperament of the witnesses, and that we are forced to review a cold record.\u201d Brandon, 132 N.C. App. at 652, 513 S.E.2d at 594.\nIn this case, while different reasonable inferences could be drawn from the evidence presented, we must defer to the trial judge\u2019s determination of which reasonable inferences should have been drawn. Based on our review of the evidence, we conclude that there was competent evidence to support the trial judge\u2019s finding that Mr. Womstaff placed Ms. Womstaff in actual fear of continued harassment that rose to such a level as to inflict substantial emotional distress.\nII.\nWe next determine whether the trial court\u2019s findings of fact support its conclusion of law that Mr. Womstaff \u201cha[d] committed acts of domestic violence against [Ms. Womstaff].\u201d Id., 513 S.E.2d at 594.\nDomestic violence is statutorily defined as \u201c[p]lacing the aggrieved party or a member of the aggrieved party\u2019s family or household in fear of imminent serious bodily injury or continued harassment . . . that rises to such a level, as to inflict substantial emotional distress.\u201d N.C. Gen. Stat. \u00a7 50B-1 (a)(2). Previously, this Court has held that, where the trial court finds that a plaintiff is actually subjectively in fear of serious bodily injury, an act of domestic violence has occurred pursuant to North Carolina General Statutes \u00a7 50B-1 (a)(2). Brandon, 132 N.C. App. at 654-55, 514 S.E.2d at 595. Since that case, our legislature has amended the statute to also include the fear of \u201ccontinued harassment . . . that rises to such a level as to inflict substantial emotional distress.\u201d Thus, if the trial court enters such a finding of actual fear of continued harassment, an act of domestic violence has occurred.\nAs we have already determined that competent evidence was presented to support the trial court\u2019s finding that Mr. Womstaff \u201cplaced [Ms. Wornstaff] ... in fear of . . . continued harassment that [rose] to such a level as to inflict substantial emotional distress[,]\u201d we also conclude that this finding of fact is sufficient to support the trial court\u2019s conclusion of law, that Mr. Wornstaff had committed an act of domestic violence against Ms. Womstaff. Because the trial court\u2019s findings of fact support its conclusion of law, we affirm the trial court\u2019s entry of a domestic violence protective order against Mr. Wornstaff.\nAffirmed.\nJudge HUDSON concurs.\nJudge TYSON dissents in a separate opinion.\n. As a side matter to this appeal, we note that the domestic violence protective order in this case expired on 11 August 2006. Generally, when an issue is no longer in controversy, the appeal is dismissed as moot. See Smith v. Smith, 145 N.C. App. 434, 436, 549 S.E.2d 912, 914 (2001) (\u201c[A]n appeal should be dismissed as moot when... the underlying controversy . . . ceasefs] to exist.\u201d); Pearson v. Martin, 319 N.C. 449, 451, 355 S.E.2d 496, 497 (1987) (when \"the relief sought has been granted or . . . the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law[.]\u201d (citation omitted)). However, this Court has held that a defendant\u2019s appeal of an expired domestic violence protective order is not moot because of the \u201cstigma that is likely to attach to a person judicially determined to have committed [domestic] abuse\u201d and \u201cthe continued legal significance of an appeal of an expired domestic violence protective order.\u201d Smith, 145 N.C. App. at 437, 549 S.E.2d at 914 (internal quotes and citation omitted). Thus, we address the merits of Mr. Wornstaffs appeal. See id.", "type": "majority", "author": "WYNN, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion affirms the domestic violence protective order entered against defendant. This holding ignores the trial court\u2019s failure to enter required findings of fact to support its conclusion of law. I vote to reverse the trial court\u2019s order and respectfully dissent.\nI. Standard of Review\n\u201cWhere the trial court sits as the finder of fact, \u2018and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial [court].\u2019 \u201d Brandon v. Brandon, 132 N.C. App. 646, 651, 513 S.E.2d 589, 593 (1999) (quoting Repair Co. v. Morris & Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968)). \u201cThe trial [court]\u2019s findings \u2018turn in large part on the credibility of the witnesses, [and] must be given great deference by this Court.\u2019 \u201d Id. at 652, 513 S.E.2d at 593 (quoting State v. Sessoms, 119 N.C. App. 1, 6, 458 S.E.2d 200, 203 (1995), aff\u2019d per curiam, 342 N.C. 892, 467 S.E.2d 243, cert. denied, 519 U.S. 873, 136 L. Ed. 2d 129 (1996)). \u201c[W]here the trial court\u2019s findings of fact are supported by competent evidence, they are binding on appeal.\u201d Id. (citing Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275, cert. denied, 303 N.C. 180, 280 S.E.2d 452 (1981)). The trial court\u2019s \u201cconclusions of law are reviewable de novo on appeal.\u201d Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).\nIf the findings of fact do not support the trial court\u2019s conclusions of law, the order must be reversed. Woodring v. Woodring, 164 N.C. App. 588, 593, 596 S.E.2d 370, 374 (2004); see Brandon, 132 N.C. App. at 654, 513 S.E.2d at 594 (reversing domestic violence protective order because the trial court\u2019s findings of fact f\u00e1iled to support its conclusions of law).\nII. Domestic Violence Protective Order\nDefendant contends insufficient evidence shows his conduct constituted continued harassment to inflict substantial emotional distress on plaintiff. I agree.\n\u201cA trial court may grant a protective order \u2018to bring about the cessation of acts of domestic violence.\u2019 \u201d Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001) (quoting N.C. Gen. Stat. \u00a7 50B-3(a)). Domestic violence is defined as:\n(a) ... the commission of one or more of the following acts upon an aggrieved party . . . :\n(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or\n(2) Placing the aggrieved party or a member of the aggrieved party\u2019s 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\n(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.\nN.C. Gen. Stat. \u00a7 50B-l(a)(l)-(3) (2005) (emphasis supplied).\nUnder N.C. Gen. Stat. \u00a7 14-277.3(c) (2005), \u201charassment\u201d is defined as \u201cknowing conduct. . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate puipose.\u201d \u201cTorment\u201d is defined as, \u201c[t]o annoy, pester, or harass.\u201d American Heritage College Dictionary 1428 (3rd ed. 1997). \u201cTerrorize\u201d is defined as, \u201c[t]o fill or overpower with terror; terrify.\u201d American Heritage College Dictionary 1401 (3rd ed. 1997). \u201cTerrify\u201d is defined as, \u201c[t]o fill with terror; make deeply afraid; alarm.\u201d American Heritage College Dictionary 1400 (3rd ed. 1997); see State v. Watson, 169 N.C. App. 331, 338, 610 S.E.2d 472, 477 (2005) (upheld stalking conviction when the defendant became \u201cvery clingy and possessive,\u201d called the victim multiple times, and accused the victim of making sexual advances to her); see also State v. Thompson, 157 N.C. App. 638, 643, 580 S.E.2d 9, 13 (2003) (the defendant caused the victim substantial emotional distress when the defendant stated he was engaged in \u201cpsychological warfare\u201d against the victim and stated that he intended to \u201cbuy two guns, and . . . blow away some Emerald Isle police that had been harassing him, [the victim], and bum the pier down.\u201d).\nPlaintiff instituted the civil action for a domestic violence protective order and bears the burden of proof. See N.C. Gen. Stat. \u00a7 50B-2(a) (2005) (any person residing in North Carolina may seek relief by filing a civil action alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person).\n\u201cThe test for whether the aggrieved party has been placed \u2018in fear of imminent serious bodily injury\u2019 is subjective; thus the trial court must find as fact the aggrieved party \u2018actually feared\u2019 imminent serious bodily injury.\u201d Smith, 145 N.C. App. at 437, 549 S.E.2d at 914 (quoting Brandon, 132 N.C. App. at 654, 513 S.E.2d at 595 (reversing domestic violence protective order because findings that the defendant\u2019s conduct caused the plaintiff to \u201cfeel uncomfortable\u201d failed to support a conclusion the defendant placed the plaintiff in fear)). \u201c[W]here the trial court finds that a plaintiff is actually subjectively in fear ... an act of domestic violence has occurred pursuant to section 50B-l(a)(2).\u201d Brandon, 132 N.C. App. at 654-55, 513 S.E.2d at 595 (reversing domestic violence protective order because trial court failed to enter findings regarding the plaintiff\u2019s subjective fear of imminent serious bodily injury).\nThe trial court entered findings that on 31 July 2005, defendant \u201cplaced [plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress by yelling at plaintiff at the [T]rading [P]ost, banging the stapler on the counter, throwing a water bottle in her direction and refusing to leave during the late night hours.\u201d The trial court failed to enter any findings of fact regarding plaintiffs \u201cfear of continued harassment\u201d and her \u201csubstantial emotional distress.\u201d\nThe trial court\u2019s order findings of fact only address defendant\u2019s conduct on solely one occasion. The trial court\u2019s failure to find plaintiff actually feared defendant would continuously harass or inflict substantial emotional distress on her does not support the trial court\u2019s conclusion of law that defendant committed acts of domestic violence against plaintiff.\nUndisputed evidence shows: (1) defendant\u2019s conduct was not continuous because it occurred only on 31 July 2005; (2) defendant\u2019s conduct occurred at defendant and plaintiff\u2019s jointly-owned business where defendant had a right to be arid after plaintiff came to the business; (3) defendant\u2019s conduct occurred in the presence of a law enforcement officer; (4) defendant did not threaten plaintiff when he asked her, \u201cwould you like to hurt me? Would you like to kill me and hit me? Would that make you feel better?;\u201d (5) defendant banged a stapler on the desk because a staple was jammed; (6) defendant threw a half-empty water bottle in the direction of a trash can and plaintiff; and (7) plaintiff attempted to block defendant\u2019s exit from the jointly owned business. Plaintiff failed to present any evidence she actually feared continued harassment by defendant or that she suffered substantial emotional distress.\nThe trial court\u2019s order contains no findings regarding plaintiff\u2019s actual fear of continued harassment by defendant or that he inflicted substantial emotional distress. In the absence of these findings of fact, the trial court\u2019s conclusion of law that defendant committed acts of domestic violence as defined by the statute against plaintiff is unsupported.\nIII. Conclusion\nThe record fails to contain competent evidence, and the trial court failed to enter any findings of fact to show plaintiff actually feared. continued harassment or that she suffered substantial emotional distress as defined in the statute. The trial court\u2019s conclusion of law that defendant committed acts of domestic violence is not supported by the evidence plaintiff presented or by the findings of fact contained in its order. I vote to reverse the domestic violence protective order and respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Stephanie B. Irvine, for Plaintiff-Appellee.", "James R. Willis III, for Defendant-Appellant." ], "corrections": "", "head_matter": "DONNA WORNSTAFF, Plaintiff-Appellee v. DON RAY WORNSTAFF, Defendant-Appellant\nNo. COA05-1657\n(Filed 19 September 2006)\n1. Domestic Violence\u2014 protective order \u2014 evidence sufficient \u2014 presence of fear \u2014 subjective rather than objective test\nAlthough differing reasonable inferences could be drawn, there was sufficient evidence to support the trial court\u2019s finding that defendant committed an act of domestic violence against his wife. The plain language of the statute requires the trial court to apply only a subjective test and to determine if the aggrieved party was in actual fear; no inquiry is made as to whether such fear was objectively reasonable.\n2. Domestic Violence\u2014 protective order \u2014 fear of continued harassment \u2014 emotional distress\nThere was sufficient evidence to support the finding that defendant placed his wife in fear of continued harassment that rose to such a level as to inflict substantial emotional distress, and the entry of a domestic violence protective order was affirmed.\nJudge Tyson dissenting.\nAppeal by Defendant from order entered 11 August 2005 by Judge Amber Davis in District Court, Dare County. Heard in the Court of Appeals 22 August 2006.\nStephanie B. Irvine, for Plaintiff-Appellee.\nJames R. Willis III, for Defendant-Appellant." }, "file_name": "0516-01", "first_page_order": 548, "last_page_order": 556 }