{ "id": 12168549, "name": "ALISA G. HENDERSON, Plaintiff v. JASON JORDAN HENDERSON, Defendant", "name_abbreviation": "Henderson v. Henderson", "decision_date": "2014-06-03", "docket_number": "No. COA13-843", "first_page": "129", "last_page": "141", "citations": [ { "type": "official", "cite": "234 N.C. App. 129" } ], "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": "672 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642785 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "734" }, { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0732-01" ] }, { "cite": "684 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "753", "parenthetical": "commenting that \"no objection on hearsay grounds was made by either parent [at the termination of parental rights hearing]. Therefore, any objection has been waived, and the testimony must be considered competent evidence.\"" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171626 ], "year": 2009, "pin_cites": [ { "page": "693", "parenthetical": "commenting that \"no objection on hearsay grounds was made by either parent [at the termination of parental rights hearing]. Therefore, any objection has been waived, and the testimony must be considered competent evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0681-01" ] }, { "cite": "576 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "390", "parenthetical": "holding that the respondent-parents waived their argument that certain testimony constituted inadmissible hearsay because they failed to object to the testimony at the permanency planning hearing" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190833 ], "year": 2003, "pin_cites": [ { "page": "403", "parenthetical": "holding that the respondent-parents waived their argument that certain testimony constituted inadmissible hearsay because they failed to object to the testimony at the permanency planning hearing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0398-01" ] }, { "cite": "319 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "311 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681076 ], "year": 1984, "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0739-01" ] }, { "cite": "195 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164447 ], "year": 2009, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0447-01" ] }, { "cite": "572 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511169, 1511387, 1511370, 1511183, 1511131 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0434-04", "/nc/356/0434-05", "/nc/356/0434-02", "/nc/356/0434-03", "/nc/356/0434-01" ] }, { "cite": "567 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082078 ], "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0697-01" ] }, { "cite": "164 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "274 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560662 ], "year": 1968, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0473-01" ] }, { "cite": "715 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "893", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "216 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4343338 ], "year": 2011, "pin_cites": [ { "page": "34", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/216/0028-01" ] }, { "cite": "685 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2009, "pin_cites": [ { "page": "546", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "546", "parenthetical": "italics added" }, { "page": "546-47" }, { "page": "547" }, { "page": "546" }, { "page": "548" } ], "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": "62", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "63" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0056-01" ] }, { "cite": "689 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "592", "parenthetical": "italics added" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175288 ], "year": 2010, "pin_cites": [ { "page": "511", "parenthetical": "italics added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0509-01" ] }, { "cite": "215 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "288 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564852 ], "year": 1975, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0071-01" ] } ], "analysis": { "cardinality": 1093, "char_count": 27888, "ocr_confidence": 0.726, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.2889556495378688 }, "sha256": "123cca133d12f955e388dcb23c408dc936d569f433ae19bb0d5b14d4fed272bf", "simhash": "1:0567902e7706a9f2", "word_count": 4610 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and DAVIS concur." ], "parties": [ "ALISA G. HENDERSON, Plaintiff v. JASON JORDAN HENDERSON, Defendant" ], "opinions": [ { "text": "STEPHENS, Judge.\nFactual Background and Procedural History\nThis case arises from the filing of a complaint for a domestic violence protective order (\u201cDVPO\u201d) by Plaintiff Alisa G. Henderson. The complaint was filed on 8 February 2013 and alleged that Plaintiff\u2019s former spouse, Defendant Jason Jordan Henderson, intentionally caused bodily injury to the parties\u2019 children, both girls, by frequently spooning with them in his underwear, grabbing their buttocks, placing cam: eras in their rooms while they were dressing, and beating them with belts, his hands, and a wooden spoon while other children were forced to watch. The complaint also asserted that Defendant placed the children in actual fear of imminent serious bodily injury by cursing at and threatening the children, allowing a friend to offer alcohol to one of the children, and becoming intoxicated to the point of falling over. Given these allegations, the trial court issued a temporary, ex parte DVPO on 8 February 2013. The ex parte DVPO was effective through 18 February 2013, and a hearing was set for the same date. Defendant received notice of the entering of the ex parte DVPO and the 18 February 2013 hearing. Therein, Defendant was informed that the purpose of the hearing was to determine \u201cwhether the [o]rder will be continued.\u201d\nEvidence presented at the hearing tended to show that Plaintiff and Defendant are divorced with two daughters, Eliza and Anna. At the time of the hearing, Eliza was fourteen and Anna was eleven. The parties shared joint custody of the children before the DVPO was issued. Both parties are now re-married, and Defendant has two daughters from his current marriage.\nAccording to a social worker at. the Wake County Division of Social Services (\u201cDSS\u201d), DSS received a report on 8 February 2013 alleging a number of instances of misconduct by Defendant. At the time of the hearing, the allegations had not been substantiated. Nonetheless, DSS had implemented a safety plan for the children. The children would stay with Plaintiff and have no unsupervised contact with Defendant.\nAt the close of the hearing, the trial court found that \u201cthere have been acts that constitute domestic violence.\u201d Thus, the court entered a DVPO for a period of one year, ordering Defendant, inter alia, to abide by the DSS safety plan and refrain from any unsupervised contact with Eliza and Anna during that period. A written DVPO was filed the same day, memorializing the court\u2019s oral pronouncement. An amended DVPO was filed two days later, on 20 February 2013, providing that, as a law enforcement officer, Defendant may possess or use a firearm for official use.\nOn 15 March 2013, Defendant filed notice of appeal from the trial court\u2019s 8,18, and 20 February 2013 orders. That same day, Defendant filed a motion to vacate or set aside the DVPO under Rule 60(b) of the North Carolina Rules of Civil Procedure. The trial court denied Defendant\u2019s motion by order filed 28 March 2013. On 18 April 2013, the trial court filed a second, written order denying Defendant\u2019s motion to vacate. The court determined that it retained jurisdiction over Defendant\u2019s motion pursuant to Rule 60(b), despite the fact that Defendant had already filed his notice of appeal of the DVPO orders. The court concluded that Defendant was not entitled to relief pursuant to Rule 60(b)(4) or (6) because the DVPO was not void and because \u201cDefendant was unable to show that any extraordinary circumstances exist or that justice demands for the DVPO to be vacated.\u201d Defendant also appealed from that order.\nDiscussion\nOn appeal, Defendant argues that the DVPO and amended DVPO are void because the trial court acted in excess of its jurisdiction. Therefore, Defendant asserts, the trial court erred in denying his Rule 60(b) motion to vacate. Alternatively, Defendant contends that the trial court\u2019s findings of fact are not supported by competent evidence and, thus, do not support its conclusion that Defendant committed acts of domestic violence against the children and put them in serious and immediate danger of injury. We affirm.\nI. Subject Matter Jurisdiction\nDefendant first argues that the trial court lacked subject matter jurisdiction to enter the DVPO because the court (1) failed to follow statutory procedure by not allowing Defendant 10 days following service of the summons and complaint to file an answer, and (2) held the DVPO hearing on the merits rather than for the purpose of simply continuing the ex parte order. We disagree.\n\u201cWhere jurisdiction is statutory and the [legislature requires the [trial court] to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the [cjourt to certain limitations, an act of the [cjourt beyond these limits is in excess of its jurisdiction.\u201d Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975). \u201cWhether a trial court has subject[ jmatter jurisdiction is a question of law, reviewed de novo on appeal.\u201d McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (italics added).\n(1) Time to File an Answer\nSection 50B-2 of the North Carolina General Statutes applies to the institution of civil actions, motions for emergency relief, temporary orders, and temporary custody in domestic violence cases. N.C. Gen. Stat. \u00a7 50B-2 (2013). Relevant to this appeal, subsections (a) and (c) provide as follows:\n(a) ... Any action for a [DVPO] requires that a summons be issued and served. The summons issued pursuant to this Chapter shall require the defendant to answer within 10 days of the date of service....\n(c) Ex Parte Orders.\n(5) Upon the issuance of an ex parte order under this subsection, a hearing shall be held within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later. A continuance shall be limited to one extension of no more than 10 days unless all parties consent or good cause is shown....\n(7) Upon the issuance of an ex parte order under this subsection, if the party is proceeding pro se, 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, order[,] and other papers through the appropriate law enforcement agency where the defendant is to be served.\nN.C. Gen. Stat. \u00a7 50B-2 (italics added). Here, Defendant was served with his summons on 12 February 2013. On appeal, Defendant contends that the trial court violated subsection (a) and, therefore, exceeded its jurisdiction because he was required to appear for the hearing on 18 February 2013, depriving him of a full 10 days to file his answer. We disagree.\n\u201c[T]he Rules of Civil Procedure apply to actions under Chapter 50B, except to the extent that a differing procedure is prescribed by statute.\u201d Hensey v. Hennessy, 201 N.C. App. 56, 62, 685 S.E.2d 541, 546 (2009) (citation and internal quotation marks omitted). Relevant to this case, section 50B-2 sets forth specialized procedures to \u201cdeal with issuance o\u00ed... ex parte DVPOs,\u201d which axe distinct from those for issuing temporary restraining orders. Id. at 63, 685 S.E.2d at 546 (italics added). Instead, \u201c[t]he procedures under [section] 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.\u201d Id. at 63, 685 S.E.2d at 546-47. Moreover,\nin construing statutes [,] courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results. Accordingly, an unnecessary implication arising from one statutory section, inconsistent with the express terms of another on the same subject, yields to the expressed intent.\nRomulus v. Romulus, 216 N.C. App. 28, 34, 715 S.E.2d 889, 893 (2011) (citation omitted). Similarly, the words in a statute \u201cmust be interpreted in context so as to render them harmonious with the intent and tenor of the entire statute and must be accorded the meaning which harmonizes with the other modifying provisions so as to give effect to the reason and purpose of the law.\u201d Underwood v. Howland, 274 N.C. 473, 479, 164 S.E.2d 2, 7 (1968).\nDefendant\u2019s contention that he has the right to a period of 10 days in which to file his answer is inconsistent with subsection 50B-2(c), which explicitly pertains to \u201c[e]x \\p]arte [o]rders.\u201d N.C. Gen. Stat. \u00a7 50B-2(c) (italics added). Subsection (c)(5) states unequivocally that a hearing on an ex parte DVPO must be held \u201cwithin 10 days\u201d of the issuance of the DVPO or \u201cwithin seven days\u201d of the date of service of process, whichever is later. N.C. Gen Stat. \u00a7 50B-2(c)(5). Subsection (c)(7) clarifies that, when the complaining party is proceeding pro se, the clerk must set a hearing date \u201cwithin the time periods provided in this subsection.\u201d N.C. Gen. Stat. \u00a7 50B-2(c)(7). Accordingly, if service of process occurs even one day after the issuance of an ex parte DVPO, the subsequent hearing must occur before the 10-day period of time within which Defendant might otherwise be allowed to answer. To interpret subsection (a) according to Defendant\u2019s logic would strip subsections (c)(5) and (7) of any rational construction. We decline Defendant\u2019s invitation to do so.\nAs we noted in Hensey, the \u201cfundamental nature and purpose of an ex parte DVPO\u201d is that it must be \u201centered on relatively short notice in order to address a situation in which quick action is needed ... to avert a threat of imminent harm.\u201d 201 N.C. App. at 63, 685 S.E.2d at 547. Similarly, the hearing on the ex parte DVPO must be conducted quickly in order to ensure that the rights of both parties, the complainant and the respondent, are not infringed. Subsection (c) encapsulates this principle by ensuring that both parties are able to present their positions to the trial court in a timely manner. To the extent that subsection (a) might otherwise suggest that the defendant has a longer period of time in which to answer, subsection (c) supersedes it by mandating the time limits for the court to conduct the hearing after the issuance of an ex parte DVPO. See N.C. Gen. Stat. \u00a7 50B-2. In the circumstance in which, as here, the hearing on the ex parte DVPO must be held before the expiration of 10 days after service of process on the defendant, the defendant is required to answer, if at all, within the period of time leading up to the hearing as prescribed by subsection (c)(5).\nHere, the ex parte DVPO was issued on 8 February 2013, and Defendant was served with a summons and notice of the hearing on 12 February 2013. Pursuant to section 50B-2(c), the hearing was set to occur within seven days of the date of service of process and within 10 days of the date of the issuance of the order, on 18 February 2013. Following service of process, Defendant had at least five days in which to submit a formal, written answer. At the hearing, Defendant had the opportunity to further respond to Plaintiff\u2019s allegations. He was permitted to appear and testify despite the fact that he had not filed an answer. This comports with section 50B-2. Accordingly, Defendant\u2019s argument is overruled.\n(2) The Purpose of the DVPO Hearing\nDefendant also argues that the trial court exceeded its jurisdiction by holding a hearing on whether to issue a DVPO. Specifically, Defendant asserts that this hearing was not held in accordance with the notice he received, which stated that the purpose of the hearing was to determine whether the ex parte order should be continued. Citing case law which prohibits the court from entering a permanent injunction during a hearing on a temporary restraining order (\u201cTRO\u201d), Defendant contends that the \u201cexpress, unambiguous language\u201d of the notice informed him that \u201cthe hearing is not to decide the claim on the merits; rather the hearing\u2019s function is to determine whether the ex parte order should be continued in effect until a,future hearing, when [the] plaintiff\u2019s claims... would be decided.\u201d (Certain italics added). We disagree.\nAs discussed in Hensey, the procedures for ex parte DVPOs are distinct from the procedures for TROs. 201 N.C. App. at 63, 685 S.E.2d at 546. Defendant\u2019s attempt to liken this case to one involving a TRO or a permanent injunction is misplaced. The process of issuing an ex parte DVPO is completed once the trial court determines that the complainant, alone, has alleged sufficient facts to show a \u201cdanger of acts of domestic violence.\u201d See id. at 65, 685 S.E.2d at 548. It is nonsensical to suggest that a hearing involving both parties could possibly be for the purpose of continuing an ex parte DVPO. In accordance with the term \u201cex parte, \u201d such orders are not intended to be issued with input from both sides. Therefore, a hearing to determine whether to continue the trial court\u2019s order, notice of which must be given to the opposing party, cannot be a hearing on whether to continue the ex parte DVPO. Instead, it must be a hearing to determine whether the trial court\u2019s protective order should be continued beyond the temporary time frame of the ex parte DVPO.\nDefendant\u2019s argument that the trial court lacked jurisdiction to enter the 18 February 2013 order and 20 February 2013 amended order is overruled. The trial court did not exceed its jurisdiction in entering those orders. Accordingly, Defendant\u2019s argument that the trial court erred in denying his Rule 60(b) motion to vacate the DVPO for lack of jurisdiction is also overruled.\nII. The Trial Court\u2019s Findings and Conclusions\nAlternatively, Defendant asserts that the trial court\u2019s 18 February 2013 DVPO and 20 February 2013 amended DVPO must be reversed because certain of the court\u2019s findings of fact are not based on competent evidence and, without those findings, the trial court\u2019s conclusions of law are improper. Again, we disagree.\n\u201cThe standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment.\u201d Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (citation and internal quotation marks omitted), disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). The trial court made the following relevant findings of fact in the challenged orders:\n3. On ... Jan. 5, 2013,... [Defendant\na. attempted to cause . . . bodily injury to . . . [the children;]\nb. placed in fear of imminent serious bodily injury ... a member of the plaintiff\u2019s familyf;]\nd. committed an act defined by [N.C. Gen. Stat. \u00a7] 14-[27.5A (sexual battery)] against the [children] by BECOMING EXTREMELY INTOXICATED WHILE CARING FOR THE CHILDREN AND ENGAGED IN INAPPROPRIATE CONTACT, CHILDREN DISCLOSED PRIOR INCIDENTS OF PHYSICAL AND VERBAL ABUSE INCLUDING HITTING W/A BELT AND THREATENING TO KNOCK THEIR TEETH DOWN THEIR THROAT. ALSO, [DEFENDANT] INAPPROPRIATELY SQUEEZED BUTTOCKS OF MINOR DAUGHTER. CONDUCT HAS RESULTED IN EMOTIONAL HARM TO CHILDREN RESULTING IN THREATS OF SELF[-]HARM.\nBased upon those findings, the court concluded that:\n2. ... [Defendant has committed acts of domestic violence against the minor child(ren) residing with or in the custody of... [P]laintiff.\n3. There is a danger of serious and immediate injury to the minor child(ren)....\nDefendant argues that findings 3(a), 3(b), and 3(d) are not supported by the evidence because they are based on statements made by the children to Plaintiff and the children\u2019s psychiatrist in the context of an ongoing DSS investigation. For support, Defendant cites Burress v. Burress, where we stated that the \u201cresults\u201d of a DSS investigation might be relevant to the issue of domestic violence, but the mere existence of the investigation is not. 195 N.C. App. 447, 450, 672 S.E.2d 732, 734 (2009). Defendant contends that, as in Burress, the evidence concerning the children\u2019s allegations is irrelevant because it stems from \u201creports of abuse,\u201d not the \u201cresults\u201d of a DSS investigation. Defendant also asserts that Plaintiff\u2019s testimony is not competent because it did not reference specific dates of the acts at issue. We are unpersuaded.\nPlaintiff offered the following pertinent testimony at trial:\n[PLAINTIFF]: [Eliza] went to her... psychiatrist appointment and told of drunken episodes that happened in the house in which there were seven children in the house; two of which were my children.\nAnd... [Defendant] and a friend offered my daughter alcohol. She did not drink it, but it ended up with the one man passed out on the floor; my ex-husband in a drunken stupor.\n[My daughter] asked him, \u201cWhat do I look like to you?\u201d And he said, \u201cYou look like [a] n i-g-g-e-r.\u201d And then spilled alcohol on the floor; made [Eliza] clean it up: \u201cClean this s-h-i-t up.\u201d...\n[My daughters] have actually exhibited self-harm such as cutting themselves because . . . the discipline of [Defendant] is so strict and strong that when he disciplines them, they express wanting to kill themselves and cutting themselves.\nJUDGE . . . : All right. So this incident that you spoke of when they were \u2014 when he was intoxicated \u2014\n[PLAINTIFF]: Yes, sir.\nJUDGE . ..: \u2014 and had another man in the house, when was this?\n[PLAINTIFF]: It was January 5th. But there\u2019s been ongoing over-the-top abuse: spankings with belts, one much \u2022\u2014 the younger child was made to stand there and \u2014 in front \u2014 he had all three children sit down on the couch[] and said, \u201cThis is what happens when you forget your agenda at school.\u201d And spanked her with a belt in front of all three children.\nHe curses at . . . them. He yells at them. He screams at them....\nJUDGE ...: All right. Now, as I understand it, there were more allegations than what you\u2019ve just told me in your \u2014\n[PLAINTIFF]: Yes, sir. Yes, sir. There is the spooning incident that happened with [Eliza]. [Defendant] spooned with her in his underwear....\nJUDGE ...: When was that?\n[PLAINTIFF]: [Eliza] said that he does it very often. I don\u2019t have a date.\nJUDGE . . . : And then was there some \u2014 you\u2019ve also alleged some inappropriate contact?\n[PLAINTIFF]: Yes. He slaps her on the bottom and squeezes her bottom, which I feel, obviously, very inappropriate for a 14[ ]year[ ]old or even ll[-]year[-]old girls.\nJUDGE . . . : All right. And you said there were threats of violence or extensive violence? Was it \u2014 physical violence?\n[PLAINTIFF]: Yes. [Defendant] threatens, \u201cIf \u2014 if you tell what happens in my home \u2014 if you tell family business or tell daddy/daughter secrets,\u201d he said in the past, \u201cI will knock your teeth down your throat.\u201d\nJUDGE . . . : And what\u2019s the most recent time that that has happened?\n[PLAINTIFF]: I don\u2019t know. I know that it happens quite often. My youngest actually has told myself and the DSS worker that when she \u2014 every time she sees a belt, she has flashbacks, and she gets afraid.\nShe says she has nightmares every night and headaches quite often, and she\u2019s very [emotionally] scarred.\n[Regarding the intoxication incident, Eliza] was very afraid, and she asked the friend, \u201cDo I need to call an ambulance for you? What do I need to do?\u201d \u2018Cause he was laying on the floor, talking out of his mind. [Defendant] started speaking Spanish. He doesn\u2019t speak Spanish. This is according to my daughter.\nAnd so, [Eliza] had to be responsible, while these men were intoxicated, for all [seven] children [who were in the house at the time].\n... May I say something else?\nJUDGE ...: Sure.\n[PLAINTIFF]: Okay. After [Eliza] told the psychiatrist about the incident, she said \u2014 and she knew that she was going to make the DSS report. She said, \u201cDo I have to go back to Dad\u2019s?\u201d She said, \u201cCause if I do, he\u2019s going to hurt me.\u201d\nSeveral times she has busted out into tears because of fear of her father.\nTestifying for himself, Defendant admitted becoming intoxicated, getting sick, and throwing up while supervising the children on January 5th, but asserted that he still \u201ckn[ew] what was going on around the house[.]\u201d Defendant also admitted to cursing in front of the children, yelling at them, and, approximately four years before the hearing, spanking one of the children with a belt until she began to make retching sounds.\nDefendant\u2019s admissions and Plaintiffs testimony constitute competent evidence to justify the trial court\u2019s findings of fact. Plaintiff testified to multiple circumstances in which Defendant vigorously spanked the children, and Defendant admitted to hitting one daughter until she made retching sounds. Plaintiff testified that Defendant threatened the children, spooned with them, and squeezed their buttocks. According to Plaintiff, this distressed the children, causing them to exhibit self-harm and express an interest in suicide. Plaintiff testified that Anna has nightmares every night, headaches on a regular basis, and is now emotionally scarred. Plaintiff also testified to an incident in which Defendant became intoxicated, which Defendant admitted. On that occasion, according to Plaintiff, Defendant was unable to stand or supervise the children and began babbling in Spanish.\nIt does not matter that certain of these allegations were also made in the context of DSS\u2019s investigation. In Burress, we found irrelevant the plaintiff\u2019s testimony that \u201c[DSS] was investigating allegations of sexual abuse against the plaintiff\u2019s minor children by [the] defendant\u201d because the mere existence of a DSS investigation does not mean that domestic violence has occurred. Id. at 450, 672 S.E.2d at 734. As no evidence was presented in that case regarding what was revealed by the investigation, however, we did not have the opportunity to address whether statements made in the context of a DSS investigation would also be irrelevant. See id. We hold that they are not. To hold otherwise would create a conflict of interest in which the plaintiff in a domestic violence case is incentiv-ized to decline sharing information with DSS for fear of having her testimony stricken at a subsequent DVPO hearing. We decline to reach such a result here. Plaintiff testified to statements made to her by her children about what they experienced with Defendant. In addition, Plaintiff described her personal observations of the adverse effects Defendant\u2019s actions have had on her daughters\u2019 behavior and emotional health. The fact that some of the' children\u2019s statements were also made to DSS does not render the rest of Plaintiff\u2019s testimony irrelevant and incompetent. Accordingly, Defendant\u2019s argument is overruled.\nMoreover, Plaintiffs inability to provide specific dates with regard to certain of the incidents, which were largely described to her by her children, is not fatal. See State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984) (\u201cWe have stated repeatedly that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child\u2019s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence.\u201d). Therefore, we.hold that the trial court\u2019s findings of fact in the 18 February 2013 and 20 February 2013 orders are based on competent evidence and, in turn, fully support its conclusions of law. Accordingly, Defendant\u2019s alternative argument is overruled. The orders appealed from are\nAFFIRMED.\nJudges STEELMAN and DAVIS concur.\n. Pseudonyms are used for the protection of the juveniles.\n. We do not hold that subsection (a) gives a defendant in a section 50B case the absolute right to a full 10 days in which to ffle an answer. On the contrary, we conclude that the statute gives him no more than 10 days to answer.\n. \u201cEx parte\u201d means \u201c[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested', of or relating to court action taken by one party without notice to the other, usu[ally] for temporary or emergency relief].]\u201d Black\u2019s Law Dictionary 657 (9th ed. 2009) (emphasis added).\n. Defendant\u2019s argument that the trial court erred by denying his Rule 60(b) motion to vacate is based entirely on his argument that the trial court lacked jurisdiction to enter the 18 and 20 February 2013 orders.\n. Defendant does not argue that Plaintiff\u2019s testimony about statements her daughters made directly to her is incompetent as inadmissible hearsay. In addition, Defendant did not make any objection on those grounds at the hearing. Therefore, any such objection is waived, and Plaintiff\u2019s testimony is not incompetent in that respect. See In re Ivey, 156 N.C. App. 398, 403, 576 S.E.2d 386, 390 (2003) (holding that the respondent-parents waived their argument that certain testimony constituted inadmissible hearsay because they failed to object to the testimony at the permanency planning hearing); see also In re F.G.J., 200 N.C. App. 681, 693, 684 S.E.2d 745, 753 (2009) (commenting that \u201cno objection on hearsay grounds was made by either parent [at the termination of parental rights hearing]. Therefore, any objection has been waived, and the testimony must be considered competent evidence.\u201d) (citation omitted); N.C.R. App. P. 10(a)(1).", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Cranfill Sumner & Hartzog LLP, by M. Denisse Gonzalez, for Plaintiff.", "Edmundson & Burnette, L.L.P, by James T. Duckworth, III, for Defendant." ], "corrections": "", "head_matter": "ALISA G. HENDERSON, Plaintiff v. JASON JORDAN HENDERSON, Defendant\nNo. COA13-843\nFiled 3 June 2014\n1. Domestic Violence\u2014time to file answer\u2014up to ten days rather than full ten days\nThe trial did not exceed its jurisdiction in holding a hearing on a Domestic Violence Prevention Order (DVPO) because defendant was deprived of a full 10 days to file his answer. N.C.G.S. \u00a7 50B-2(c) states unequivocally that a hearing on an ex parte DVPO must be held \u201cwithin 10 days\u201d of the issuance of the DVPO or \u201cwithin seven days\u201d of the date of service of process, whichever is later. The statute gives defendant no more than 10 days to answer, not the absolute right to a full 10 day; moreover, defendant was permitted to appear and testify despite the fact that he had not filed an answer.\n2. Domestic Violence\u2014jurisdiction\u2014stated purpose of hearing\nThe trial court did not exceed its jurisdiction entering a Domestic Violence Protective Order (DVPO) where defendant asserted that the hearing was not held in accordance with the notice he received, which stated that the purpose of the hearing was to determine whether the ex parte order should be continued. A hearing to determine whether to continue the trial court\u2019s ex parte order must be a hearing to determine whether the trial court\u2019s protective order should be continued beyond the temporary time frame of the ex parte DVPO.\n3. Domestic Violence\u2014findings\u2014statements made during investigation\nIn a hearing on a Domestic Violence Prevention Order, the evidence justified the trial court\u2019s findings of fact even though certain statements by the children were made in the context of DSS\u2019s investigation. The mere existence of a DSS investigation did not mean that domestic violence had occured.\n4. Domestic Violence\u2014findings\u2014children\u2019s statements\u2014specificity about dates\nPlaintiff\u2019s inability to be specific about certain dates was not fatal to the findings in a Domestic Violence Prevention Order. Young children cannot be expected to be exact regarding times and dates, and a child\u2019s uncertainty as to time or date goes to the weight rather than the admissibility of the evidence.\nAppeal by Defendant from Orders entered 8 February 2013 by Judge Ned W. Mangum, 18 and 20 February 2013 by Judge Robert B. Rader, and 18 April 2013 by Judge Margaret Eagles in Wake County District Court. Heard in the Court of Appeals 22 January 2014.\nCranfill Sumner & Hartzog LLP, by M. Denisse Gonzalez, for Plaintiff.\nEdmundson & Burnette, L.L.P, by James T. Duckworth, III, for Defendant." }, "file_name": "0129-01", "first_page_order": 139, "last_page_order": 151 }