{ "id": 4173453, "name": "NICOLE HENSEY, Plaintiff v. MARK HENNESSY, Defendant", "name_abbreviation": "Hensey v. Hennessy", "decision_date": "2009-11-17", "docket_number": "No. COA08-1277", "first_page": "56", "last_page": "69", "citations": [ { "type": "official", "cite": "201 N.C. App. 56" } ], "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": "661 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641015 ], "year": 2008, "pin_cites": [ { "page": "320", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0313-01" ] }, { "cite": "632 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636403 ], "weight": 8, "year": 2006, "pin_cites": [ { "page": "822" }, { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0818-01" ] }, { "cite": "672 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642785 ], "weight": 6, "year": 2009, "pin_cites": [ { "page": "734", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "parenthetical": "emphasis added" }, { "page": "734" }, { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0732-01" ] }, { "cite": "651 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639561 ], "year": 2007, "pin_cites": [ { "page": "263", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0261-01" ] }, { "cite": "2009-3 N.C. Adv. Legis. Serv. 142", "category": "laws:leg_session", "reporter": "N.C. Adv. Legis. Serv.", "pin_cites": [ { "parenthetical": "LexisNexis" } ], "opinion_index": 0 }, { "cite": "509 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "458", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 833", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11206390 ], "year": 1998, "pin_cites": [ { "page": "835", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0833-01" ] }, { "cite": "400 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "482" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527876 ], "year": 1991, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0450-01" ] }, { "cite": "264 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "299 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575818 ], "year": 1980, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0715-01" ] }, { "cite": "190 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157771 ], "year": 2008, "pin_cites": [ { "page": "690", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0679-01" ] }, { "cite": "179 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8235301 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/179/0191-01" ] }, { "cite": "675 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "326", "parenthetical": "\"The order entered by the trial court was, therefore, an ex parte TRO entered under Rule 65(b), not a valid domestic violence protective order, entered pursuant to Chapter 50B.\"" } ], "opinion_index": 0 }, { "cite": "363 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151153 ], "year": 2009, "pin_cites": [ { "page": "221", "parenthetical": "\"The order entered by the trial court was, therefore, an ex parte TRO entered under Rule 65(b), not a valid domestic violence protective order, entered pursuant to Chapter 50B.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0214-01" ] }, { "cite": "198 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1973, "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551715 ], "year": 1973, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0193-01" ] }, { "cite": "291 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "144", "parenthetical": "\"An interlocutory decree which does not affect a substantial right is reviewable only on appropriate exception upon an appeal from the final judgment in the cause.\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "305 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571503 ], "year": 1982, "pin_cites": [ { "page": "578", "parenthetical": "\"An interlocutory decree which does not affect a substantial right is reviewable only on appropriate exception upon an appeal from the final judgment in the cause.\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0575-01" ] }, { "cite": "57 S.E.2d, 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "382", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "297 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "137" }, { "page": "137-38" }, { "page": "137-38" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526890 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0533-01" ] }, { "cite": "186 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157009 ], "year": 2007, "pin_cites": [ { "page": "392", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0390-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 32658, "ocr_confidence": 0.754, "pagerank": { "raw": 3.545042278020274e-07, "percentile": 0.884995418651821 }, "sha256": "8063a87bdeb05c01f0048f441caa003a67bc4c41514d22b81caff9f9d2229bc4", "simhash": "1:19e931e2565a2cd0", "word_count": 5524 }, "last_updated": "2023-07-14T21:19:33.177262+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and ERVIN concur." ], "parties": [ "NICOLE HENSEY, Plaintiff v. MARK HENNESSY, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals from a 19 November 2007 ex parte domestic violence order of protection, 10 March 2008 domestic violence order of protection, and 21 April 2008 order denying defendant\u2019s motions for a new trial and relief from judgment. For the following reasons, we affirm the 19 November 2007 ex parte domestic violence order of protection and reverse the 10 March 2008 domestic violence order of protection.\nI. Background\nOn 19 November 2007, plaintiff filed a \u201ccomplaint and motion for domestic violence protective order[,]\u201d (original in all caps), alleging that on 17 November 2007, while she was 29 weeks pregnant, defendant had, inter alia, \u201cput [her] in a headlock\u201d and \u201cbanged [her] into a wall[.]\u201d On 19 November 2007, the trial court granted an \u201cex parte domestic violence order of protection (\u201cex parte DVPO\u201d), (original in all caps), to be \u201ceffective until November 26, 2007[.]\u201d The trial court also noticed a hearing for 26 November 2007.\nDefendant moved for a continuance, and the hearing was rescheduled for 10 December 2007. The ex parte DVPO was \u201ccontinued in effect until the date of the hearing[.]\u201d On 10 December 2007, defendant filed a motiori for another continuance. The hearing was rescheduled for 14 January 2007, and the trial court again ordered that the ex parte DVPO remain in effect. On or about 17 December 2007, Joseph E. Stroud, Jr. entered his appearance on behalf of defendant. On 14 January 2008, the hearing was again continued by agreement of the parties until 10 March 2008; once again the ex parte DVPO remained in effect.\nAt the hearing on 10 March 2008, neither defendant nor his attorney were present. The trial court entered a \u201cdomestic violence order of protection\u201d (\u201cDVPO\u201d) (original in all caps), to be in effect until 10 March 2009. On 11 March 2008, defendant\u2019s attorney filed motions (1) for a new trial, (2) or, in the alternative, to set aside the 10 March 2008 DVPO, (3) to withdraw as counsel, and (4) to expedite the hearing of the motions. On 10 April 2008, defendant\u2019s attorney filed a separate motion to withdraw as counsel. On 21 April 2008, the trial court denied defendant\u2019s motions for a new trial and for relief from judgment. On 22 April 2008, the trial court allowed defendant\u2019s attorney to withdraw as counsel. Defendant appeals the ex parte DVPO, the DVPO, and the order denying his motions for a new trial and for relief from judgment.\nII. Appeal of Interlocutory Order\nThough not addressed by either party, \u201cwhether an appeal is interlocutory presents a jurisdictional issue, and this Court has an obligation to address the issue sua sponte.\u201d Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation, quotation marks, and brackets omitted). In Smart v. Smart, the defendant appealed from either an emergency or ex parte DVPO entered pursuant to N.C. Gen. Stat. \u00a7 50B-2. 59 N.C. App. 533, 536, 297 S.E.2d 135, 137 (1982). This Court dismissed the appeal and held \u201cthat the order is interlocutory and the immediate temporary emergency relief granted by the order does not affect any substantial right of the defendant which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on the merits.\u201d Id. at 536, 297 S.E.2d at 137-38. Smart is distinguishable from the present case because in Smart the defendant failed To appeal from the final order; in fact, in Smart it is unclear whether the trial court ever entered a final order. See Smart, 59 N.C. App. 533, 297 S.E.2d 135.\nWe have been unable to find any precedential case law which has addressed an appeal from an ex parte DVPO where the notice of appeal was filed after entry of the DVPO and notice of appeal was given as to both the ex parte DVPO and the DVPO. Thus, we conclude that although the ex parte DVPO was an interlocutory order and would not have been immediately appealable, see Smart at 536, 297 S.E.2d at 137-38, it is now \u201creviewable . . . [only] on appropriate exception upon an appeal from the final judgment in the cause.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d, 377, 382 (1950) (citation omitted); see Love v. Moore, 305 N.C. 575, 578, 291 S.E.2d 141, 144 (1982) (\u201cAn interlocutory decree which does not affect a substantial right is reviewable only on appropriate exception upon an appeal from the final judgment in the cause.\u201d (citation omitted)). As defendant properly waited until after entry of the DVPO to file his notice of appeal to the ex parte DVPO and the DVPO together, we will review both orders.\nIII. Standard of Review\nWhen the trial court sits without a jury [regarding a DVPO], the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s 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\u2019s findings of fact, those findings are binding on appeal.\nBurress v. Burress,-N.C. App.-,-, 672 S.E.2d 732, 734 (2009) (citations, quotation marks, and brackets omitted).\nIV. Ex Parte DVPO\nDefendant first contends that the trial court erred by making insufficient findings of fact before issuing the ex parte DVPO. Essentially, the defendant raises three separate arguments as to the ex parte order: (1) the trial court did not hear any evidence, but instead based the ex parte DVPO only upon the verified complaint; (2) the DVPO did not contain any findings as to the \u201cspecific facts\u201d upon which it is was based; and (3) if the ex parte DVPO did contain findings of fact, they were not sufficient under N.C. Gen. Stat. \u00a7 1A-1, Rule 52.\n1. DVPO Hearing\nA court may only issue an ex parte DVPO if \u201cit clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c) (emphasis added). N.C. Gen. Stat. \u00a7 50B-2(c) does not provide that the trial court may issue an ex parte DVPO based solely upon the allegations of the complaint. N.C. Gen. Stat. \u00a7 50B-2(c) instead provides that\n[i]f an aggrieved party acting pro se requests ex parte relief, the clerk of superior court shall schedule an ex parte hearing with the district court division of the General Court of Justice within 72 hours of the filing for said relief, or by the end of the next day on which the district court is in session in the county in which the action was filed, whichever shall first occur.\nId. (emphasis added).\nTherefore, N.C. Gen. Stat. \u00a7 50B-2 requires that a \u201chearing\u201d be held prior to issuance of the ex parte DVPO. See id. If the ex parte DVPO could be issued based only upon the verified complaint, without having the aggrieved party appear for a hearing before a judge or magistrate, there would be no need to schedule a hearing; the judge or magistrate could simply read the verified complaint and decide whether to issue the ex parte DVPO. See id.\nThe record before us does not contain any transcript of the ex parte hearing held on 19 November 2007, but the ex parte DVPO provides that \u201c[t]his matter was heard\u201d by the trial judge on that date. Given the expedited nature of the ex parte hearing process, we recognize the possibility that no transcript of that hearing was available to the parties. However, the record reflects that an ex parte hearing was held, and plaintiff appeared pro se before the trial court to request the ex parte DVPO, so presumably she offered evidence. See Potts v. Potts, 19 N.C. App. 193, 194, 198 S.E.2d 203, 204 (1973) (\u201cWhere there is evidence offered before the trial court and appellant assigns as error that the evidence does not support the findings of fact by the trial judge, but do\u00e9s not include the evidence in the record on appeal, we will presume the facts found are supported by competent evidence.\u201d). We may therefore presume that the facts as found in the ex parte DVPO were supported by competent evidence. See id.\n2. Incorporation of Complaint into Ex Parte DVPO\nDefendant\u2019s next arguments deal with the trial court\u2019s actual findings of fact. N.C. Gen. Stat. \u00a7 50B-2(c) provides that the trial court may enter an ex parte DVPO to protect the plaintiff \u201cif it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c). Ex parte DVPOs pursuant to N.C. Gen. Stat. \u00a7 50B-2 are normally in effect for a very brief time, until either entry or denial of entry of a DVPO under N.C. Gen. Stat. \u00a7 50B-3, as DVPO hearings are required \u201cwithin 10 days from the date of issuance of the [ex parte DVPO] or within seven days from the date of service of process on the other party, whichever occurs later.\u201d Id. Most likely due to the brief life of ex parte DVPOs, we find no prior cases which have addressed the findings of fact required in an ex parte DVPO.\nAn ex parte DVPO, although brief in duration, can have a tremendous effect upon a defendant. An ex parte DVPO requiring a defendant not to \u201cassault, threaten, abuse, follow, harass . . ., or interfere with the plaintiff\u2019 should not impose any particular hardship upon the defendant; however, the ex parte DVPO may also require a defendant to, inter alia, leave his or her home, stay away from his or her children, give up possession of a motor vehicle, and surrender his or her \u201cfirearms, ammunition, and gun permits\u201d to the sheriff. In addition, a defendant who knowingly violates a valid protective order, including an ex parte DVPO, may be charged with a class A1 misdemeanor or with various felonies for certain violations. See N.C. Gen. Stat. \u00a7 50B-4.1. Due to the potentially serious consequences of the ex parte DVPO, N.C. Gen. Stat. \u00a7 50B-2(c) requires that the ex parte DVPO be issued only if it \u201cclearly appears\u201d based upon \u201cspecific facts shown, that there is a danger of acts of domestic violence against the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c). Thus, in order to issue an ex parte DVPO, the trial court must make findings of fact which include \u201cspecific facts\u201d which demonstrate \u201cthat there is a danger of acts of domestic violence against the aggrieved party[.]\u201d Id.\nDefendant argues that the ex parte DVPO failed to include findings of fact at all, as the entire notation by the trial court was \u201csee complaint].]\u201d However, the complete factual findings of the ex parte DVPO, including provisions from the preprinted form, were as follows:\n2. That on (date of most recent conduct) see complaint, the defendant\na. attempted to cause . . . bodily injury to the plaintiff. . .\nb. placed in fear of imminent serious bodily injury the plaintiff])]\n[The trial court then made the following conclusions of law:]\n1. The defendant has committed acts of domestic violence against the plaintiff.\n3. It clearly appears that there is a danger of acts of domestic violence against the plaintiff.\n(Emphasis added.) Thus, it appears that the trial court incorporated the allegations of the complaint into its ex parte DVPO for the \u201cspecific facts\u201d showing \u201cthat there is a danger of acts of domestic violence against the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c).\nDefendant argues that pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 52, the trial court is required to \u201cfind the facts specially and state separately its conclusions of law thereon and direct entry of the appropriate judgment.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a) (2007). Defendant argues that the requirements of N.C. Gen. Stat. \u00a7 1A-1, Rule 52 apply to DVPO actions under N.C. Gen. Stat. Chapter 50B, as this is an \u201cactionf] tried upon the facts without a jury[.]\u201d Id.\nWe must first consider the extent of the application of N.C. Gen. Stat. Chapter 1A, the Rules of Civil Procedure, to actions brought under Chapter 50B. N.C. Gen. Stat. \u00a7 1A-1, Rule 1 provides that \u201c[t]hese rules shall govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 1. An action under Chapter 50B is a civil action. See N.C. Gen. Stat. \u00a7 50B-2 (2007) (\u201cAny person residing in this State may seek relief under this Chapter by filing a civil action ....\u201d) Therefore, the Rules of Civil Procedure apply to actions under Chapter 50B, except to the extent that \u201ca differing procedure is prescribed by statute.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 1.\nN.C. Gen. Stat. \u00a7 50B-2 sets forth certain specialized procedures which apply to actions which allege acts of domestic violence against an aggrieved party or a child residing with or in the custody of an aggrieved party under Chapter 50B. N.C. Gen. Stat. \u00a7 50B-2(a). The specialized procedures deal with issuance of emergency relief and ex parte DVPOs. N.C. Gen. Stat. \u00a7 50B-2(b) and (c). Although the procedures for emergency and ex parte DVPOs bear some resemblance to the procedures for temporary restraining orders under N.C. Gen. Stat. \u00a7 1A-1, Rule 65(b), compare N.C. Gen. Stat. \u00a7\u00a7 1A-1, Rule 65(b); 50B-2, proceedings under Chapter 50B are distinct from proceedings under N.C. Gen. Stat. \u00a7 1A-1, Rule 65. See State v. Byrd, 363 N.C. 214, 221, 675 S.E.2d 323, 326 (2009) (\u201cThe order entered by the trial court was, therefore, an ex parte TRO entered under Rule 65(b), not a valid domestic violence protective order, entered pursuant to Chapter 50B.\u201d). The procedures under N.C. Gen. Stat. \u00a7 50B-2 are intended to provide a method for trial court judges or magistrates to quickly provide protection from the risk of acts of domestic violence by means of a process which is readily accessible to pro se complainants. See N.C. Gen. Stat. \u00a7 50B-2. However, Chapter 50B does not contain any provisions which specifically exclude or conflict with any of the Rules of Civil Procedure which may be relevant to this case.\nHowever, requiring findings and conclusions of the nature contemplated by N.C. Gen. Stat. \u00a7 1A-1, Rule 52 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 needed in order to avert a threat of imminent harm. In such circumstances, there is simply not sufficient time to enter an order that is fully compliant with the requirements of N.C. Gen. Stat. \u00a7 1A-1, Rule 52. For that reason, despite the absence of specific statutory language excluding ex parte DVPOs from the coverage of the findings and conclusions requirement of N.C. Gen. Stat. \u00a7 1A-1, Rule 52, we hold that such orders need not contain findings and conclusions that fully satisfy the requirements of that provision of the Rules of Civil Procedure. Having reached this conclusion, however, we still need to address the adequacy of the ex parte DVPO entered in the present case, in which the trial court simply incorporated the allegations of the complaint into its order rather than setting forth a separate statement of its factual findings.\nAlthough it appears that this Court has never specifically approved incorporation of language from a complaint into a DVPO, we have recognized that a trial court may incorporate such allegations in other types of cases; for example, in State v. Henderson, 179 N.C. App. 191, 632 S.E.2d 818 (2006), a probation violation case, the trial court used a \u201cform for Judgment and Commitment Upon Revocation of Probation, AOC-CR-608.\u201d Id. at 196-97, 632 S.E.2d at 822. Mostly by use of the \u201cpreprinted text\u201d of the form, the order provided in part that\ndefendant was charged with violation of probation conditions as alleged in the violation reports, which were incorporated by reference, (3) the trial court was reasonably satisfied, by the evidence presented, that defendant violated each of the conditions set forth in the violation reports dated 5 April 2005, and (4) each violation was sufficient to revoke defendant\u2019s second probation and activate his suspended sentence.\nId. at 197, 632 S.E.2d at 822. The defendant argued that \u201cthe trial court\u2019s findings were not sufficiently specific to enable an appellate court to review the trial court\u2019s decision!,]\u201d but this Court rejected the defendant\u2019s argument and concluded that \u201cthe completed form, together with the probation violation report which was incorporated by reference, contained sufficient findings of fact to support revocation of defendant\u2019s second probation.\u201d Id. We see no reason why a similar approach should not suffice here, particularly given the need for expedition in the handling of results for the issuance of ex parte DVPOs. Thus, we conclude that while it would be preferable for the trial court to set forth the \u201cspecific facts\u201d which support its order separately, instead of by reference to the complaint, the ex parte DVPO, read in conjunction with plaintiff\u2019s complaint, does provide sufficient information upon which we may review the trial court\u2019s decision to issue the ex parte DVPO. See generally id.\n3. Sufficiency of Findings of Fact\nThe \u201cspecific facts\u201d here, as incorporated into the DVPO from the allegations of the verified complaint, are that on the\n[njight of Saturday Nov. 17 2007 (police report & magistrate papers documented) [Plaintiff] was at [defendant]\u2019s house and [they] had a disagreement over a girlfriend of his he currently contacted]. [Plaintiff] told [defendant] [she] wanted to go home & proceeded to call [her] parents to come & pick [her] up. [She] then gathered all of [her] belongings and realized [she] did not have [her] cell phone. [She] used his house phone to call [her] (sic) to find it\u2019s (sic) location. [She] found it broken in V2 & hidden from [her] ([defendant] did it) [Defendant] then started to heckle [h\u00e9r] (close to [her] face) calling [her] namefs.] Next [she] was put in a headlock and dragged. [She] was crying & kicking, & screaming to let [her] go/\u2019your (sic) hurting me\u2019. [Defendant] banged [her] into a wall several times. [She] put [her] foot/leg up to prote [ct] [her] pregnant belly. [She] finally got loose \u2014 ran around [defendant\u2019s] house (running away from him) and ran outside. [Defendant] chased [her] yelling at [her]. [She] went to a neighbor for help b/c [her] cell could not call 911.\nFurthermore, plaintiff\u2019s complaint stated that \u201c[t]here is another court proceeding between the defendant and [plaintiff] pending\u201d for domestic violence and that plaintiff \u201cbelieve[d] there is danger of serious and immediate injury to [her] or [her] children).\u201d By reference to the allegations of plaintiff\u2019s complaint, the trial court has complied with N.C. Gen. Stat. \u00a7 1A-1, Rule 52 and N.C. Gen. Stat. \u00a7 50B-2(c) regarding the findings of fact as to the \u201cspecific facts showing] that there is a danger of acts of domestic violence against the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c).\nLastly, as to the ex parte DVPO, we must consider \u201cwhether [the trial court\u2019s] conclusions of law were proper in light of [the] facts.\u201d Id. \u201c[I]f it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party or a minor child, the court may enter orders as it deems necessary to protect the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c) (emphasis added). Thus, in order for a trial court to properly enter an ex parte DVPO it must \u201cclearly appear to the court from specific facts shown, that\u201d . . . \u201cthe aggrieved party\u201d is in \u201cdanger of acts of domestic violence[.]\u201d Id. As the purpose of entering an ex parte DVPO is \u201cto protect the aggrieved partyf,]\u201d id., \u201cthe decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future\u201d harm. See generally In re A.S., 190 N.C. App. 679, 690, 661 S.E.2d 313, 320 (2008) (citation and quotation marks omitted).\nHere, the findings of fact show that on the Saturday prior to the Monday on which plaintiff filed her complaint, defendant had broken and hidden plaintiff\u2019s cell phone and heckled her. Defendant then put plaintiff in a headlock, dragged her, and banged her into a wall. When plaintiff got away from defendant, he chased her until she reached a neighbor\u2019s home to call for help. In addition, plaintiff and defendant had been in a dating relationship; plaintiff was 29 weeks pregnant' with defendant\u2019s child; plaintiff and defendant had other pending domestic violence proceedings; and plaintiff believed she was in serious, immediate danger. Considering the recency and severity of defendant\u2019s acts, we conclude that the trial court did not err in its conclusion that plaintiff was in \u201cdanger of acts of domestic violence\u201d and in need of protection. See N.C. Gen. Stat. \u00a7 50B-2(c).\nIV. DVPO\nDefendant next argues that \u201cthe trial court erred by entering the domestic violence order of protection without any evidence to support the findings of fact or conclusions of law and where defendant was denied any opportunity to be heard[.]\u201d Defendant first contends that\nto the extent the trial court entered the 10 March 2008 order based on the ex parte order, if this Court reverses the ex parte order, the trial court\u2019s basis for entering the 10 March 2008 order would be void, and the 10 March 2008 order should also be reversed.\nAlthough we have not reversed the ex parte DVPO, defendant is incorrect in his argument that the DVPO is dependent upon a valid ex parte DVPO. The two orders are independent of one another, and in some situations, a DVPO pursuant to N.C. Gen. Stat. \u00a7 50B-3 is entered properly even though an ex parte order may have been denied or was never requested. In fact, Chapter 50B provides for three separate types of orders: (1) an emergency order pursuant to N.C. Gen. Stat. \u00a7 50B-2(b), (2) an ex parte order pursuant to N.C. Gen. Stat. \u00a7 50B-2(c), and (3) a domestic violence protective order pursuant to N.C. Gen. Stat. \u00a7 50B-3. See N.C. Gen. Stat. \u00a7 50B-2; -3 (2007). The aggrieved party is not required to request an emergency or ex parte order prior to seeking entry of a DVPO. See N.C. Gen. Stat. \u00a7 50B-3. We must therefore consider defendant\u2019s arguments as to the DVPO of 10 March 2008, as these are independent of the issues regarding the ex parte DVPO.\nN.C. Gen. Stat. \u00a7 50B-3(a) provides that if the trial court \u201cfinds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defend\u00e1nt from further acts of domestic violence.\u201d N.C. Gen. Stat. \u00a7 50B-3. Again, we must first consider \u201cwhether there was competent evidence to support the trial court\u2019s findings of fact[.]\u201d Burress at-, 672 S.E.2d at 734.\nFor the 10 March 2008 hearing, unlike the 19 November 2007 ex parte hearing, we do have the transcript. Therefore, from the record before us, it is apparent that at the 10 March 2008 hearing, plaintiff presented absolutely no evidence before the trial court. The most troubling aspect of this case is that the transcript of the hearing reveals that the trial judge granted the order without hearing any evidence because he \u201cheard it on the criminal end.\u201d In other words, because he was the judge presiding over the criminal case in which charges stemming from this incident were brought against defendant, the trial judge concluded that he need not hear any evidence regarding this 'civil matter.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 43(a) requires that \u201c[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 43(a). Furthermore, neither the Rules of Civil Procedure nor Chapter 50B exempts hearings pursuant to N.C. Gen. Stat. \u00a7 50B-3 from the requirement that the trial court hear testimony from witnesses.\nAt the 14 April 2008 hearing on defendant\u2019s motion, inter alia, for a new trial, the trial judge stated that he had presided over the defendant\u2019s trial in criminal court and that at that trial\nwe weren\u2019t beyond a reasonable doubt which is a higher standard in criminal court but in civil court but that we would be to a preponderance of the evidence. That\u2019s why I indicated at that time to the defense attorney that it would probably be appropriate that I hear the civil case so that I can enter the Order having already used a lot of Court time hearing the criminal case and indicated at that time that I would more than likely be inclined to enter that Order.\nAlthough we appreciate the trial court\u2019s concern for judicial economy, a judge\u2019s own personal memory is not evidence. The trial court does not have authority to issue an order based solely upon the court\u2019s own personal memory of another entirely separate proceeding, and it should be obvious that the evidence which must \u201cbe taken orally in open court\u201d must be taken in the case which is at bar, not in a separate case which was tried before the same judge. Appellate review of the sufficiency of the evidence to support the trial court\u2019s findings of fact is impossible where the evidence is contained only in the trial judge\u2019s memory.\nPlaintiff argues that because defendant failed to file an answer to the complaint, the allegations of the complaint \u201cbecame judicial admissions that required no further proof, were conclusive, and eliminated entirely any issues to be tried.\u201d Plaintiff cites no cases as authority for the proposition and bases this assertion only upon N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d), which provides in pertinent part that \u201c[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d). Plaintiff therefore asserts that the trial judge could have based the DVPO upon the allegations of the verified complaint, without hearing any additional evidence, because defendant did not file an answer denying the allegations of the complaint.\nPlaintiff\u2019s argument fails for two reasons. First, the trial court specifically did not rely upon defendant\u2019s failure to answer the complaint to enter the DVPO, but instead relied upon the trial court\u2019s own personal recollection of the criminal trial. Secondly, plaintiff did not file a motion for entry of default judgment pursuant to N.C. Gen. Stat. \u00a7 LA-1, Rule 55(a) against defendant for his failure to answer. See generally Bell v. Martin, 299 N.C. 715, 721, 264 S.E.2d 101, 105 (1980) (\u201cOnce the default is established defendant has no further standing to contest the factual allegations of plaintiff\u2019s claim for relief. If he wishes an opportunity to challenge plaintiff\u2019s right to recover, his only recourse is to show good cause for setting aside the default[.]\u201d (citations and quotation marks omitted)); Spartan Leasing v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991). (\u201cThe effect of an entry of default is that the defendant against whom entry of default is made is deemed to have admitted the allegations in plaintiff\u2019s complaint, G.S. \u00a7 1A-1, Rule 8(d), and is prohibited from defending on the merits of the case.\u201d). judicial notice of adjudicative facts. Rule 201 provides that \u201c[a] judicially noticed fact must be one not subject to reasonable dispute in that it is' either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 201. \u201cA fact is considered indisputable if it is so well established as to be a matter of common knowledge. Conversely, a court cannot take judicial notice of a disputed question of fact.\u201d Hinkle v. Hartsell, 131 N.C. App. 833, 835, 509 S.E.2d 455, 458 (1998) (citation and quotation marks omitted). Plaintiff does not contend that the facts as alleged regarding defendant\u2019s acts of domestic violence were \u201cnot subject to reasonable dispute[,]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 201, but relies only upon the fact that the trial judge had already heard these same facts being disputed, apparently quite vigorously, in criminal court. Judicial notice is entirely inappropriate for factual issues such as those presented by this case. Accordingly, as no evidence was presented before the trial court at the 10 March 2008 hearing, there was no \u201ccompetent evidence to support the trial court\u2019s findings of fact[.]\u201d Burress at-, 672 S.E.2d at 734. Therefore, we reverse the DVPO.\nV. Conclusion\nWe affirm the trial court\u2019s entry of the ex parte DVPO and reverse the DVPO. As we are reversing the DVPO, we need not address defendant\u2019s other arguments.\nAFFIRMED IN PART; REVERSED IN PART.\nJudges ELMORE and ERVIN concur.\n. N.C. Gen. Stat. \u00a7 50B-2(cl) contains similar hearing provisions for the issuance of ex parte DVPO by magistrates in districts where the chief district judge has authorized magistrates to hear these cases. See N.C. Gen. Stat. \u00a7 50B-2(el).\n. In Session Law 2009-342, the legislature recently clarified that a \u201cvalid protective order\u201d under N.C. Gen. Stat. \u00a7 50B-4.1 includes emergency and ex parte orders entered under N.C. Gen. Stat. Chapter 50B. See 2009-3 N.C. Adv. Legis. Serv. 142 (LexisNexis).\n. Only the words in italics were added by the trial court.\n. N.C. Gen. Stat. \u00a7 50B-2(b) provides that \u201cA 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\u2019 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, 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 ap^ propriate law enforcement agency where the defendant is to be served.\u201d N.C. Gen. Stat. \u00a7 50B-2(b) (2007) (emphasis added).\n. Certainly the transcript of testimony from the criminal trial, assuming that one existed, could have been used as evidence if the transcript had been properly offered and admitted into evidence at the DVPO hearing.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Lana S. Warlick, for plaintiff-appellee.", "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant." ], "corrections": "", "head_matter": "NICOLE HENSEY, Plaintiff v. MARK HENNESSY, Defendant\nNo. COA08-1277\n(Filed 17 November 2009)\n1. Appeal and Error\u2014 interlocutory orders \u2014 ex parte domestic violence protective order\nAn ex parte domestic violence protective order (DVPO) was heard on appeal even though it was interlocutory where defendant waited until after a DVPO was entered to file notice of appeal to both the ex parte DVPO and the DVPO.\n2. Domestic Violence\u2014 protective order \u2014 ex parte hearing\u2014 evidence\nIt was presumed that the facts as found in an ex parte domestic violence protective order were supported by competent evidence where the record reflected that a hearing was held and plaintiff appeared, presumably offering evidence.\n3. Domestic Violence\u2014 ex parte protective order \u2014 findings\u2014 incorporation of complaint\nEx parte domestic violence protective orders need not contain findings and conclusions that fully satisfy the requirements of N.C.G.S. \u00a7 1A-1, Rule 52, but it was still necessary to consider whether the order in this case was sufficient since the court simply incorporated the allegations of the complaint. While it would be preferable for the court to set forth specific facts, this order, read with the complaint, provides sufficient information for appellate review.\n4. Domestic Violence\u2014 ex parte order \u2014 findings and conclusions \u2014 sufficiently supported\nThe findings and conclusions in an ex parte domestic violence protective order were supported by the allegations of the verified complaint and the recency and severity of defendant\u2019s acts.\n5. Domestic Violence\u2014 basis of protective order \u2014 memory of separate proceeding \u2014 sufficiency\nThere was no competent evidence to support the issuing of a domestic violence protective order where the trial court relied on its memory of a separate proceeding. Furthermore, judicial notice was not appropriate for factual issues such as those presented here.\nAppeal by defendant from orders entered 19 November 2007 by Judge Leonard W. Thagard, and 10 March 2008 and 21 April 2008 by Judge Henry L. Stephens, IV, in Onslow County District Court. Heard in the Court of Appeals 6 May 2009.\nLana S. Warlick, for plaintiff-appellee.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant." }, "file_name": "0056-01", "first_page_order": 84, "last_page_order": 97 }