{ "id": 4357956, "name": "KATHLEEN M. KENNEDY, Plaintiff v. BARRY C. MORGAN, Defendant", "name_abbreviation": "Kennedy v. Morgan", "decision_date": "2012-06-05", "docket_number": "No. COA11-1392", "first_page": "219", "last_page": "225", "citations": [ { "type": "official", "cite": "221 N.C. App. 219" } ], "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": "652 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639675 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/652/0262-01" ] }, { "cite": "643 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638129 ], "year": 2007, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0599-01" ] }, { "cite": "549 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "145 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438328 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/145/0434-01" ] }, { "cite": "361 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741505, 3737060, 3739557, 3744553, 3739019, 3743118, 3740528, 3741332, 3740312 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0693-05", "/nc/361/0693-09", "/nc/361/0693-02", "/nc/361/0693-04", "/nc/361/0693-03", "/nc/361/0693-06", "/nc/361/0693-07", "/nc/361/0693-01", "/nc/361/0693-08" ] }, { "cite": "182 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175369 ], "year": 2007, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0667-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "685 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "544", "parenthetical": "citations and brackets omitted" }, { "page": "544" }, { "page": "544" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173453 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "59", "parenthetical": "citations and brackets omitted" }, { "page": "59" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0056-01" ] } ], "analysis": { "cardinality": 543, "char_count": 15258, "ocr_confidence": 0.735, "pagerank": { "raw": 1.9899023779421173e-07, "percentile": 0.7416434317213089 }, "sha256": "18ff74cc2a30d2a03e25c337cad2ce08da6b6895e805dc141525dbda51e95a78", "simhash": "1:dbea35027a467dd4", "word_count": 2523 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ERVIN concur." ], "parties": [ "KATHLEEN M. KENNEDY, Plaintiff v. BARRY C. MORGAN, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals a domestic violence order of protection. For the following reasons, we reverse.\nI. Background\nOn 17 June 2011, plaintiff filed a \u201cCOMPLAINT AND MOTION FOR DOMESTIC VIOLENCE PROTECTIVE ORDER[.]\u201d On 28 July 2011, the trial court held a hearing which was at times a free-for-all which often failed to conform to many of the North Carolina Rules of Evidence. In summary, the actual relevant evidence presented by plaintiff showed that for a few nights in June of 2011, \u201ca black man in a white SUV\u201d was parked on the public street in front of plaintiff\u2019s home. Plaintiff believed that defendant, her ex-husband, was responsible for the presence of the man and perhaps, based upon threats he had made to her while married, that defendant had even sent the man to rape her. Defendant presented evidence that he had hired a private investigative service (\u201cPI service\u201d) to monitor whether plaintiff was co-habiting because defendant was informed by his attorney that he might be able to terminate alimony payments if he could establish that plaintiff was co-habiting with another individual. Defendant\u2019s evidence showed that the PI service was professional, had not broken any laws, and that its investigators had not been on plaintiff\u2019s property or approached the individuals residing in the plaintiff\u2019s home.\nOn 29 July 2011, the trial court entered a \u201cDOMESTIC VIOLENCE ORDER OF PROTECTION\u201d (\u201cDVPO\u201d) against defendant based entirely upon the following finding of fact:\nOn .... 6/11-6/15, the defendant\nplaced in fear of continued harassment that rises to such a level as to inflict substantial emotional distress the plaintiff\nby...\n[a]fter a long history of abuse plaintiff separated from the defendant and finished counseling through family circumstances, she remains afraid of the defendant who tries to intimidate her- \u2014 surveillance on her house at late hours, making the plaintiff and her neighbors apprehensive[.]\nThe trial court concluded that based on its finding of fact \u201c[t]he defendant has committed acts of domestic violence against the plaintiff.\u201d Defendant appealed.\nII. 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.\nHensey v. Hennessy, 201 N.C. App. 56, 59, 685 S.E.2d 541, 544 (2009) (citations and brackets omitted).\nIII. DVPO\nDefendant contends that the trial court erred in entering a DVPO against him.\nA. DVPOs Generally\nAny person residing in this State may seek relief under . . . Chapter [50B] by filing a civil action or by filing a motion in any existing action filed under Chapter 50 of the General Statutes alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person.\nN.C. Gen. Stat. \u00a7 50B-2(a) (2011). \u201cIf the court. . . finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence.\u201d N.C. Gen. Stat. \u00a7 50B-3(a) (2011).\nDomestic 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:\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. 14-277.3A, 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) (2011).\nHere, plaintiff did not allege that defendant had attempted to cause or intentionally caused her bodily injury or that he had committed an act defined in N.C. Gen. Stat. \u00a7\u00a7 14-27.2 through 14-27.7. See id. The trial court found that defendant had placed plaintiff \u201cin fear of continued harassment that rises to such a level as to inflict substantial emotional distress[.]\u201d See N.C. Gen. Stat. \u00a7 50B-l(a)(2). Thus, under the facts presented in this situation, under N.C. Gen. Stat. \u00a7 50B-l(a)(2), a conclusion of law that an act of domestic violence has occurred required evidence and findings of the following: (1) Defendant \u201chas or has had a personal relationship,\u201d as defined by N.C. Gen. Stat. \u00a7 50B-l(b), with plaintiff; (2) defendant committed one or more acts upon plaintiff or \u201ca minor child residing with or in the custody of\u2019 plaintiff; (3) the act or acts of defendant placed plaintiff \u201cor a member of . . . [her] family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A[;]\u201d and (4) the fear \u201crises to such a level as to inflict substantial emotional distress[.]\u201d See N.C. Gen. Stat. \u00a7 50B-1 (2011).\nChapter 50B does not define \u201charassment[,]\u201d but N.C. Gen. Stat. \u00a7 50B-1(a)(2) refers to N.C. Gen. Stat. \u00a7 14-277.3A which defines \u201charassment\u201d as \u201c[k]nowing 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 14-277.3A(b)(2) (2011). Thus, to support a conclusion of law that an act of domestic violence has occurred due to \u201charassment,\u201d as in this situation, there must also be evidence and findings of fact that defendant\u2019s acts (1) were knowing, (2) were \u201cdirected at a specific person[,]\u201d here, plaintiff, (3) tormented, terrorized, or terrified the person, here again, plaintiff, and (4) served no legitimate purpose. See id.\nB. DVPO Analysis\nDefendant argues that \u201cthe trial court erred in finding that there was competent evidence to support a finding of fact that defendant placed plaintiff in fear of continued harassment that rises to such a level as to inflict substantial emotional distress[.]\u201d (Original in all caps.) Defendant contends that there was no basis for the finding that he placed plaintiff \u201cin fear of continued harassment[.]\u201d The trial court found as fact that\n[o]n .... 6/11-6/15, the defendant\n[p]laced in fear of continued harassment that rises to such a level as to inflict substantial emotional distress the plaintiff. . .\n[b]y...\n[a]fter a long history of abuse plaintiff separated from the defendant and finished counseling through family circumstances, she remains afraid of the defendant who tries to intimidate her \u2014 surveillance on her house at late hours, making the plaintiff and her neighbors apprehensive[.]\nThus, we must determine if the evidence supports the trial court\u2019s finding of fact, and then if the finding of fact supports the conclusion of law that defendant committed an act of domestic violence against plaintiff. See Hensey, 201 N.C. App. at 59, 685 S.E.2d at 544.\nAlthough the trial court found that plaintiff had suffered \u201ca long history of abuse\u201d from defendant, most of the evidence as to the \u201chistory of abuse\u201d appears to have occurred during the parties\u2019 marriage. Plaintiff testified regarding a few other acts of \u201cabuse\u201d by defendant since their divorce, arising mostly from disputes surrounding defendant\u2019s visitation with the minor children, but the specific facts and dates are unclear as to these allegations; furthermore, it is clear that defendant\u2019s recent act of hiring a PI service, and not the \u201chistory of abuse [,]\u201d was the basis for the trial court\u2019s decision to enter the DVPO, as this was the only \u201cact of domestic violence\u201d found. N.C. Gen. Stat. \u00a7 50B-3(a). Although we appreciate that a \u201chistory of abuse\u201d may at times be quite relevant to the trial court\u2019s determination as to whether a recent act constitutes \u201cdomestic violence,\u201d a vague finding of a general \u201chistory of abuse\u201d is not a finding of an \u201cact of domestic violence\u201d as defined by N.C. Gen. Stat. \u00a7 50B-3(a). Id.\nTo support entry of a DVPO, the trial court must make a con elusion of law \u201cthat an act of domestic violence has occurred.\u201d N.C. Gen. Stat. \u00a7 50B-3(a). The conclusion of law must be based upon the findings of fact. See Hensey, 201 N.C. App. at 59, 685 S.E.2d at 544. While the trial court need not set forth the evidence in detail it does need to make findings of ultimate fact which are supported by the evidence; the findings must identify the basis for the \u201cact of domestic violence.\u201d N.C. Gen. Stat. \u00a7 50B-3(a); see In re Estate of Mullins, 182 N.C. App. 667, 671, 643 S.E.2d 599, 602, disc. review denied, 361 N.C. 693, 652 S.E.2d 262 (2007) (\u201cThe trial court need not recite in its order every evidentiary fact presented at hearing, but only must make specific findings on the ultimate facts that are determinative of the questions raised in the action and essential to support the conclusions of law reached. Ultimate facts are the final facts required to establish the plaintiff\u2019s cause of action or the defendant\u2019s defense.\u201d (citations, quotation marks, and ellipses omitted)). The trial court found as a fact that defendant hired a PI service to conduct surveillance on plaintiff\u2019s house; this was the only \u201cact\u201d of the defendant found by the trial court. N.C. Gen. Stat. \u00a7 50B-3(a). The trial court did not find that defendant had hired the \u201cblack man in a white SUV\u201d to \u201cstalk[,]\u201d or rape plaintiff or as a pretext to harass plaintiff instead of for actual surveillance services, as plaintiff claimed. Although it is understandable that a person may not appreciate being subjected to surveillance by a PI service, surveillance in and of itself, if properly conducted, in this situation, does not support a finding of \u201charassment\u201d with no \u201clegitimate purpose.\u201d See N.C. Gen. Stat. \u00a7 14-277.3A(b)(2); see also N.C. Gen. Stat. \u00a7 50B-1 (a)(2).\nThe finding of fact notes that the surveillance was conducted \u201cat late hours\u201d which also indicates that the trial court found defendant\u2019s testimony, in this regard, credible, as defendant claimed he had hired the PI service to see if plaintiff was co-habiting with another individual for alimony purposes, which would normally require overnight surveillance. The finding of fact further notes that plaintiff\u2019s \u201cneighbors [were] apprehensive[,]\u201d but this is irrelevant as \u201cthe aggrieved party or a member of the aggrieved party\u2019s family or household\u201d are the only people the trial court may consider in issuing a DVPO pursuant to N.C. Gen. Stat. \u00a7 50B-l(a)(2). N.C. Gen. Stat. \u00a7 50B-l(a)(2).\nIn addition, the \u201cact\u201d of hiring a PI service for surveillance, based upon the finding of the trial court, is not in and of itself enough to support its finding of \u201csubstantial emotional distress.\u201d N.C. Gen. Stat. \u00a7\u00a7 50B-1(a)(2), -3(a); see N.C. Gen. Stat. \u00a7 14-277.3A(b)(4) (2011). The only statement within the finding of fact at issue which could possibly indicate \u201csubstantial emotional distress\u201d on the part of plaintiff is the trial court\u2019s description of her as \u201cafraid\u201d and \u201capprehensive].]\u201d But the fact that plaintiff may have been \u201cafraid\u201d or \u201capprehensive\u201d because of defendant\u2019s actions does not necessarily support a determination of domestic violence. See Smith v. Smith, 145 N.C. App. 434, 437-38 n.2, 549 S.E.2d 912, 914-15 n.2 (2001) (\u201c[T]he trial court found as fact that Plaintiff testified Defendant\u2019s actions made her feel uncomfortable and creepy. The trial court also found as fact that Plaintiff testified Defendant had never physically hurt her, nor was she afraid that he would physically hurt her. These findings of fact which show Defendant\u2019s conduct caused Plaintiff to feel uncomfortable but did not place her in fear of bodily injury do not support a conclusion Defendant placed Plaintiff in fear of serious imminent bodily injury.\u201d The Court further noted in footnote 2, \u201cWe acknowledge the trial court found as fact that Defendant placed Plaintiff in actual fear of imminent serious bodily injury; however, this finding by the trial court was based on actions by Defendant that Plaintiff herself testified did not cause her fear of physical harm. Thus, this finding by the trial court cannot support its conclusion Plaintiff was placed in fear of imminent serious bodily injury.\u201d (quotation marks and brackets omitted)).\nBased upon the evidence presented and findings of fact made by the trial court, defendant\u2019s act of hiring a PI service to conduct surveillance in order to determine if plaintiff was co-habiting is not \u201c[k]nowing 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 14-277.3A(b)(2). As no further evidence was presented by plaintiff of \u201can act of domestic violence\u201d on the part of defendant, there was no other evidence for the trial court to consider. As there was no \u201charassment\u201d and thus no \u201cact[,]\u201d the evidence and findings of fact do not support the trial court\u2019s conclusion of law that defendant committed an act of domestic violence. See N.C. Gen. Stat. \u00a7\u00a7 14-277.3A(b)(2), 50B-1(a)(2), 50B-3.\nIV. Conclusion\nIn conclusion, the trial court\u2019s finding of fact that defendant hired a PI service for surveillance purposes does not support its finding of \u201charassment\u201d and does not support its conclusion of law as to an act of domestic violence. As such, the DVPO must be reversed. As we are reversing the DVPO we need not address defendant\u2019s other contentions on appeal regarding evidentiary errors during the hearing.\nREVERSED.\nJudges HUNTER, Robert C. and ERVIN concur.\n. There was no dispute as to the personal relationship element, as plaintiff and defendant were divorced and had children in common. See N.C. Gen. Stat. \u00a7 50B-l(b).\n. Although N.C. Gen. Stat. \u00a7 50B-3(a) states that the trial court must \u201cfind\u201d that an act of domestic violence has occurred, in fact this is a conclusion of law; the trial court must make findings of fact based upon the definition of domestic violence to support this conclusion; form AOC-CV-306, Rev. 8/09 entitled \u201cDOMESTIC VIOLENCE ORDER OF PROTECTION],]\u201d correctly identifies this as the conclusion of law required under N.C. Gen. Stat. \u00a7 50B-3(a), and the trial court made this conclusion of law here by checking the appropriate box on form AOC-CV-306, Rev. 8/09.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Brock, Payne & Meece, PA., by Barr\u00ed Hilton Payne, for defendant-appellant.", "No plaintiff-appellee brief filed." ], "corrections": "", "head_matter": "KATHLEEN M. KENNEDY, Plaintiff v. BARRY C. MORGAN, Defendant\nNo. COA11-1392\n(Filed 5 June 2012)\nDomestic Violence \u2014 protective order \u2014 harassment\u2014finding not supported \u2014 no act of domestic violence\nThe trial court erred in entering a domestic violence protective order against defendant. The trial court\u2019s finding of fact that defendant hired a private investigation service for surveillance purposes did not support its finding of \u201charassment\u201d and did not support its conclusion of law as to an act of domestic violence.\nAppeal by defendant from order entered 28 July 2011 by Judge Margaret Sharpe in District Court, Guilford County. Heard in the Court of Appeals 25 April 2012.\nBrock, Payne & Meece, PA., by Barr\u00ed Hilton Payne, for defendant-appellant.\nNo plaintiff-appellee brief filed." }, "file_name": "0219-01", "first_page_order": 229, "last_page_order": 235 }