{ "id": 12168616, "name": "ELIZABETH McDUFFIE RUDDER, Plaintiff v. WILLIAM OVERTON RUDDER, Defendant", "name_abbreviation": "Rudder v. Rudder", "decision_date": "2014-06-03", "docket_number": "No. COA13-424", "first_page": "173", "last_page": "186", "citations": [ { "type": "official", "cite": "234 N.C. App. 173" } ], "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": "656 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640369 ], "year": 2008, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0695-01" ] }, { "cite": "628 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635632 ], "year": 2006, "pin_cites": [ { "page": "811" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0808-01" ] }, { "cite": "672 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642785 ], "year": 2009, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0732-01" ] }, { "cite": "749 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "367 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4331427, 4318793, 4323402, 4321356, 4333458, 4328861 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc/367/0255-01", "/nc/367/0255-06", "/nc/367/0255-04", "/nc/367/0255-03", "/nc/367/0255-02", "/nc/367/0255-05" ] }, { "cite": "745 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "228 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4220678 ], "year": 2013, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/228/0248-01" ] }, { "cite": "522 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242869 ], "year": 1999, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0734-01" ] }, { "cite": "188 N.C. App. 842", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155675 ], "year": 2008, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0842-01" ] }, { "cite": "177 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301489 ], "year": 2006, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0441-01" ] }, { "cite": "535 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "878", "parenthetical": "quoting Black's Law Dictionary 563 (7th ed. 1999)" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123845 ], "year": 2000, "pin_cites": [ { "page": "202", "parenthetical": "quoting Black's Law Dictionary 563 (7th ed. 1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0198-01" ] }, { "cite": "195 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164447 ], "year": 2009, "pin_cites": [ { "page": "449-50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0447-01" ] }, { "cite": "685 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2009, "pin_cites": [ { "page": "544", "parenthetical": "quoting Burress v. Burress, 195 N.C. App. 447, 449-50, 672 S.E.2d 732, 734 (2009)" }, { "page": "546" }, { "page": "546" }, { "page": "547" }, { "page": "546-57" }, { "page": "547" }, { "page": "547" }, { "page": "545" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173453 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "59", "parenthetical": "quoting Burress v. Burress, 195 N.C. App. 447, 449-50, 672 S.E.2d 732, 734 (2009)" }, { "page": "61" }, { "page": "63" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0056-01" ] }, { "cite": "125 Md. App. 745", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 777279 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "753" }, { "page": "891" }, { "page": "753" }, { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/md-app/125/0745-01" ] }, { "cite": "549 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438328 ], "year": 2001, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0434-01" ] } ], "analysis": { "cardinality": 993, "char_count": 31964, "ocr_confidence": 0.724, "pagerank": { "raw": 6.233605815818255e-08, "percentile": 0.3854437073358331 }, "sha256": "dbc279237d7903acec6684f8436e011ff58f8692a48ad1bd19f11e85e584cb75", "simhash": "1:192c1a4246960df1", "word_count": 5441 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STROUD concur." ], "parties": [ "ELIZABETH McDUFFIE RUDDER, Plaintiff v. WILLIAM OVERTON RUDDER, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant William Overton Rudder appeals from an ex parte domestic violence protection order entered 23 November 2010 (\u201cthe \u00e9x parte DVPO\u201d) and a one-year DVPO entered 28 September 2012 (\u201cthe September 2012 DVPO\u201d). Defendant primarily contends that the trial court erred in entering the September 2012 DVPO after the ex parte DVPO was in effect for more than 18 months, but then expired without being renewed. We hold that because at the time the ex parte DVPO expired without being renewed, it had been in effect for more than a year, the trial court did not have authority to enter the September 2012 DVPO that was based upon the same complaint. We, therefore, vacate the September 2012 DVPO. Because, however, we find defendant\u2019s arguments regarding the ex parte DVPO unpersuasive, we affirm that order.\nFacts\nOn 23 November 2010, plaintiff Elizabeth McDuffie Rudder filed a complaint and motion for a DVPO against defendant, her husband. Plaintiff had permanently moved out of the marital home 14 November 2010. Plaintiffs verified complaint alleged:\nOn November 1, 2010,1 confronted Defendant about having an extra-marital affair. Defendant threw me on a couch, jumped on top of me and fractured my rib with his knee. The injury was documented by a physician. Defendant has attacked me physically on numerous occasions over the course of many years, including hitting me, throwing me on the floor and shoving me. Defendant encouraged me to kill myself by putting a gun in front of me and telling me to pull the trigger. Defendant has pointed a gun at me and said \u201cclick.\u201d Defendant has threatened to kill me and my immediate family.\nThe trial court entered an ex parte DVPO on the same day that plaintiff filed her complaint. The order found that defendant had committed acts of domestic violence against plaintiff, that there was a danger of future acts of domestic violence against plaintiff, and that defendant\u2019s conduct required that he surrender all firearms, ammunition, and gun permits. A \u201cNotice of Hearing on Domestic Violence Protective Order\u201d was issued, which scheduled a hearing on 6 December 2010 for the purpose of determining \u201cwhether the [23 November 2010 ex parte] Order will be continued.\u201d (Emphasis added.)\nThereafter, approximately 13 orders were entered continuing the hearing on the ex parte DVPO. The first continuance order was entitled \u201cORDER CONTINUING DOMESTIC VIOLENCE HEARING AND EX PARTE ORDER\u201d and noted that \u201c[t]his matter was scheduled for hearing for emergency relief pursuant to G.S. 50B-2.\u201d This order also provided, in pre-printed text, that \u201cthis hearing is continued to the date and time specified below to allow for proper service upon the defendant.\u201d However, it is not contested that defendant was actually served on 23 November 2010, so it appears that this form was used for convenience, with little regard for its substantive content. In handwriting, the order stated that \u201c[t]he parties agree to continue this matter to resolve the marital issues without prejudice to either party. The parties agree to not dissipate the marital assets except for reasonable living expenses.\u201d The order further specified that \u201c[t]he Court orders that the ex parte order entered in this case is continued in effect until the date of the hearing set above.\u201d\nNearly all of the other continuance orders were on the same form and contained the same pre-printed language that the hearing was being continued to allow time for service on the defendant. Some of the continuance orders further identified, in handwriting, the reason for the continuances as being, for example, to allow, by consent, the parties time to \u201cresolve the marital issues\u201d; by consent, to address matters in other pending litigation involving the parties; based upon secured leave by counsel; and because of the inability of the trial court to hear the matter due to other cases on the calendar.\nThe final continuance order entered 17 May 2012 was on the same form and included the same language as the first continuance order: \u201cThis matter was scheduled for hearing for emergency relief pursuant to G.S. 50B-2.\u201d This order scheduled a hearing for 9:30 a.m. on 4 June 2012. On 4 June 2012, however, no hearing took place, the trial court did not enter an additional continuance, and the court did not renew the existing ex parte DVPO. The ex parte DVPO, therefore, expired on 4 June 2012.\nOn 6 June 2012, defendant filed a motion pursuant to N.C. Gen. Stat. \u00a7 50B-3.1(f), requesting return of firearms seized from him pursuant to the ex parte DVPO. On 7 June 2012, plaintiff filed a Rule 60 motion, seeking relief from the 17 May 2012 continuance order \u201con the grounds of excusable neglect, clerical error, and mistake in that the date set for hearing this matter was explicitly intended to be heard during the June 4, 2012 term of court as opposed to the specific day of June 4,2012.\u201d The record contains no indication that the trial court ever ruled on plaintiff\u2019s Rule 60 motion. Defendant, however, subsequently filed additional motions for return of his firearms on 12 June 2012 and 21 June 2012, using a pro se form.\nThe trial court calendared hearings on 31 August 2012 and 21 September 2012 to address various discovery-related motions in a related but separate divorce proceeding, as well as defendant\u2019s motion for return of firearms. At the hearing, plaintiff conceded that the ex parte DVPO had expired, but requested that the trial court nonetheless enter a one-year DVPO based upon the underlying complaint. The trial court allowed plaintiff to present evidence to support the issuance of a one-year DVPO at the 31 August 2012 hearing. Defendant presented his evidence at the hearing on 21 September 2012.\nOn 28 September 2012, the trial court entered a one-year DVPO, finding that defendant had, nearly two years earlier, intentionally caused bodily injury to the plaintiff, placed her in fear of imminent serious bodily injury, and placed her in fear of continued harassment that rose to such a level as to inflict substantial emotional distress. Specifically, the trial court found:\nOn November 1, 2010, the defendant shoved the plaintiff down on a couch and jumped on top of her. The defendant threatened to kill the plaintiff and her immediate family. The defendant pointed a gun at the plaintiff and informed her he could kill her without anyone ever knowing. The defendant placed a gun in front of the plaintiff and told her to pull the trigger and kill herself. Over the course of the marriage, the defendant physically assaulted the plaintiff and committed further acts of domestic violence.\nBased on its findings, the trial court concluded that the \u201cdefendant has committed acts of domestic violence against the plaintiff,\u201d that \u201c[t]here is danger of serious and immediate injury to the plaintiff,\u201d and that \u201c[t]he defendant\u2019s conduct requires that he[] surrender all firearms, ammunition and gun permits.\u201d The court entered a DVPO effective for one year. Defendant timely appealed both the ex parte DVPO and the September 2012 DVPO to this Court.\nDiscussion\nInitially, we note that the ex parte DVPO expired 4 June 2012, and the one-year DVPO was set to expire 28 September 2013, five days after this case was heard by this Court. This appeal is not, however, moot. See Smith v. Smith, 145 N.C. App. 434, 437, 549 S.E.2d 912, 914 (2001) (holding that defendant\u2019s appeal of expired DVPO was not moot because of \u201c \u2018stigma that is likely to attach to a person judicially determined to have committed [domestic] abuse []\u2019 \u201d and \u201cthe continued legal significance of an appeal of an expired domestic violence protective order\u201d (quoting Piper v. Layman, 125 Md. App. 745, 753, 726 A.2d 887, 891 (1999))).\nAs explained in Smith, \u201cthere are numerous non-legal collateral consequences to entry of a domestic violence protective order that render expired orders appealable. For example,... \u2018a person applying for a job, a professional license, a government position, admission to an academic institution, or the like, may be asked about whether he or she has been the subject of a [domestic violence protective order].\u2019 \u201d Id. (quoting Piper, 125 Md. App. at 753, 726 A.2d at 891). We, therefore, may properly review both the ex parte DVPO and the September 2012 DVPO.\nI\nIn reviewing the ex parte DVPO entered 23 November 2010, we determine \u201c \u2018whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in fight of such facts. Where there is competent evidence to support the trial court\u2019s findings of fact, those findings are binding on appeal.\u2019 \u201d Hensey v. Hennessy, 201 N.C. App. 56, 59, 685 S.E.2d 541, 544 (2009) (quoting Burress v. Burress, 195 N.C. App. 447, 449-50, 672 S.E.2d 732, 734 (2009)).\nDefendant argues (1) that the trial court\u2019s findings of fact were insufficient to support its conclusion that \u201cdefendant has committed acts of domestic violence against the plaintiff\u2019 and (2) that specific facts do not support its conclusion that \u201cit clearly appears that there is a danger of acts of domestic violence against the plaintiff.\u201d We disagree.\nThe trial court used pre-printed form AOC-CV-304, Rev. 8/09, entitled \u201cEX PARTE DOMESTIC VIOLENCE ORDER OF PROTECTION\u201d for its order. The form contains 12 pre-printed \u201cAdditional Findings.\u201d Before each numbered finding is a box corresponding to the finding as a whole. Some of the pre-printed findings contain subparts with additional boxes to check, blank spaces to fill in, or space to provide additional information.\nIn this case, the trial court made the following relevant findings of fact by marking the boxes next to certain pre-printed provisions and adding the information set out below in italics:\n[_] 2. That on... 11-01-2010, the defendant\n[x] a. . . . [x] intentionally caused bodily injury to [x] the plaintiff...\n[x] b. placed in fear of imminent serious bodily injury [x] the plaintiff [x] a member of the plaintiff\u2019s family [x] a member of the plaintiff\u2019s household\n[x] \u2022 c. placed in fear of continued harassment that rises to such a level as to inflict substantial emotional distress [x] the plaintiff [x] a member of plaintiff\u2019s family [x] a member of plaintiff\u2019s household\n[x] 3. The defendant is in possession of, owns or has access to firearms, ammunition, and gun permits described below....\nThe Defendant is in possession of hundreds of firearms and approximately 1000 boxes of ammunition which are spread through the marital residence.\n[x] 4. The defendant\n[x] a. ... [x] threatened to use a deadly weapon against the [x] plaintiff...\n[x] b. has a pattern of prior conduct involving the . . . [x] threatened use of violence with a firearm against persons\n[x] c. made threats to seriously injure or kill the [x] plaintiff...\n[x] e. inflicted serious injuries upon the [x] plaintiff... in that...:\nBroken [sic] her rib.\n(Emphasis added to indicate information added by trial court to form.)\nDefendant argues that by failing to mark the first box of Finding 2, which corresponds to Finding 2 as a whole, the trial court did not actually intend to make any of the findings marked under paragraph 2. It is apparent, however, that this omission was merely a clerical error.\n\u201c \u2018Clerical error\u2019 has been defined ... as: \u2018An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.\u2019 \u201d State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black\u2019s Law Dictionary 563 (7th ed. 1999)). Clerical errors include mistakes such as inadvertently checking the wrong box on pre-printed forms. See In re D.D.J., D.M.J., 177 N.C. App. 441, 444, 628 S.E.2d 808, 811 (2006).\nFinding 2 on Form AOC-CV-304 corresponds to the definition of domestic violence set out in N.C. Gen. Stat. \u00a7 50B-l(a), which provides:\n(a) Domestic 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.\nThe statute thus specifies several alternative ways in which one may commit an act of domestic violence.\nThe subparts of Finding 2 on Form AOC-CV-304 set out all the possible alternative findings that could support a finding of fact that the defendant committed an act of domestic violence. The form allows the trial court to indicate which alternatives apply by marking the relevant subparts. Thus, by checking the box next to Finding 2, the trial court indicates an ultimate finding of fact: that defendant committed an act of domestic violence. By marking the boxes next to the subparts of Finding 2, the trial court then provides more specific findings regarding how the defendant committed an act of domestic violence and against whom.\nHere, the trial court provided the \u201cdate of most recent conduct\u201d in the first line of Finding 2 and marked the subparts indicating what acts the defendant committed and against whom. Additionally, the trial court concluded as a matter of law that the defendant committed acts of domestic violence against the plaintiff. Under these circumstances, it is apparent that the trial court intended to mark the box next to Finding 2 and that its failure to do so was inadvertent and merely a clerical error. The error should, however, be corrected on remand. See State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (\u201cWhen, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record \u2018speak the truth.\u2019\u201d (quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999))).\nDefendant next argues that even if it is presumed that the trial court intended to mark Finding 2, the trial court\u2019s findings of fact are still insufficient. An ex parte DVPO may be issued \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)(l). This Court has interpreted this provision to mean that \u201cin order to issue an ex parte DVPO, the trial court must make findings of fact which include \u2018specific facts\u2019 which demonstrate \u2018that there is a danger of acts of domestic violence against the aggrieved party[.]\u2019 \u201d Hensey, 201 N.C. App. at 61, 685 S.E.2d at 546 (quoting N.C. Gen. Stat. \u00a7 50B-2(c)). Defendant argues that the ex parte DVPO in this case does not contain the required \u201cspecific facts.\u201d\nIn Hensey, the ex parte DVPO, which also was a pre-printed form order, did not itself set forth specific findings of facts in the DVPO, but rather appeared to incorporate by reference the allegations of the complaint. Id. at 62, 685 S.E.2d at 546. This Court concluded that \u201cwhile it would be preferable for the trial court to set forth the \u2018specific facts\u2019 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.\u201d Id. at 64, 685 S.E.2d at 547.\nIn reaching its conclusion, the Court in Hensey rejected the defendant\u2019s argument that the ex parte DVPO must comply with Rule 52 of the Rules of Civil Procedure, which requires that a trial court sitting without a jury shall \u201c \u2018find the facts specially.\u2019 \u201d Id. at 62-63, 685 S.E.2d at 546-57. The Court concluded that ex parte orders under N.C. Gen. Stat. \u00a7 50B-2 \u201cneed not contain findings and conclusions that fully satisfy the requirements of [Rule 52]\u201d because such a requirement \u201cwould 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.\u201d 201 N.C. App. at 63, 685 S.E.2d at 547.\nHere, in the space provided under Finding 2, the DVPO neither includes specific facts nor references the allegations of the complaint, although Finding 2 does specify the date of the most recent conduct by defendant. In addition, however, Finding 4 finds that defendant had threatened to use a deadly weapon against plaintiff, had a pattern of prior conduct involving the threatened use of violence with a firearm, had made threats to seriously injure the plaintiff, and had inflicted serious injuries on plaintiff by breaking her rib. While defendant argues that Finding 4 does not indicate whether defendant intentionally broke plaintiff\u2019s rib, that finding is included in Finding 2.\nWe hold that the combination of Finding 2 and Finding 4 are minimally adequate to supply the required \u201cspecific facts\u201d necessary to support the conclusion that the defendant committed acts of domestic violence against the plaintiff and that \u201cthere is a danger of acts of domestic violence against the plaintiff.\u201d We, therefore, affirm the ex parte DVPO. We note, however, that the better practice would be to include more specific facts under Finding 2 explaining the basis for the ultimate findings made by checking the boxes on the pre-printed form.\nII\nDefendant next contends that the trial court erred by entering the September 2012 DVPO when the ex parte DVPO had expired after being in effect for more than a year. We agree.\nIn this case, the ex parte DVPO continued in effect for more than 18 months until it expired on 4 June 2012. We question whether the General Assembly intended for an ex parte DVPO to continue in effect for this length of time based on repeated continuances - in this case, a total of 13. See N.C. Gen. Stat. \u00a7 50B-2(c)(5) (\u201cUpon 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. The hearing shall have priority on the court calendar.\u201d (Emphasis added)). We need not, however, specifically address that issue in order to resolve this appeal.\nThe North Carolina Domestic Violence Act, set out in Chapter 50B of the General Statutes, specifies the procedural framework for the issuance of DVPOs. The statute defines a \u201cprotective order\u201d as \u201cany order entered pursuant to this Chapter upon hearing by the court or consent of the parties.\u201d N.C. Gen. Stat. \u00a7 50B-l(c). As this Court explained in State v. Poole, 228 N.C. App. 248, 255, 745 S.E.2d 26, 32, appeal dismissed and disc. review denied, 367 N.C. 255, 749 S.E.2d 885 (2013), because an ex parte DVPO is entered following a hearing, the phrase \u201cprotective order\u201d when used in Chapter 50B encompasses both ex parte DVPOs and one-year DVPOs. Although the types of protection the two kinds of orders can provide are essentially the same, there are necessarily some procedural differences between an ex parte DVPO and a one-year DVPO.\nAs noted in Hensey, an ex parte DVPO \u201cis 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.\u201d 201 N.C. App. at 63, 685 S.E.2d at 547. In contrast, the one-year DVPO is entered only after notice to the defendant and an opportunity to participate in a full adversarial hearing. Id. at 61, 685 S.E.2d at 545. It is intended to address issues for a longer time period, although normally not more than three years, with temporary custody provisions limited to one year. See N.C. Gen. Stat. \u00a7 50B-3(b).\nUnfortunately, Chapter 50B does not clearly distinguish between some of the characteristics of an ex parte order and a DVPO entered after notice to the defendant and an opportunity for a full adversarial hearing. However, reading the entire Chapter in context, it is apparent that N.C. Gen. Stat. \u00a7 50B-2 addresses the procedure and time limitations for ex parte or temporary orders, while the substantive protective provisions of any type of protective order are addressed by N.C. Gen. Stat. \u00a7 50B-3, and the time limitations of the one-year DVPO are addressed by N.C. Gen. Stat. \u00a7 50B-3(b).\nN.C. Gen. Stat. \u00a7 50B-3(b) specifies what relief a \u201cprotective order\u201d may grant and, with respect to the time limitations for the one-year DVPO, provides:\nProtective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year. The court may renew a protective order for a fixed period of time not to exceed two years, including an order that previously has been renewed, upon a motion by the aggrieved party filed before the expiration of the current order; provided, however, that a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one-year period. The court may renew a protective order for good cause. The commission of an act as defined in G.S. 50B-l(a) by the defendant after entry of the current order is not required for an order to be renewed.\nIn this case, we are addressing the plaintiffs request for the trial court to enter a one-year DVPO based upon an ex parte DVPO that had already remained in effect for more than a year based upon continuances of the hearing. Even if we assume, without deciding, that an ex parte DVPO may lawfully continue for more than a year through the mechanism of repeated continuances, in this case, the ex parte DVPO ultimately expired on 4 June 2012 when no order was entered continuing the ex parte DVPO in effect after that date.\nWe also note that N.C. Gen. Stat. \u00a7 50B-3(b) provides that even for the renewal of a one-year DVPO, the motion for renewal must be filed before the expiration of the existing order. When the motion to renew is filed prior to expiration of the one-year DVPO, the plaintiff must show \u201cgood cause\u201d although the plaintiff need not show commission of an additional act of domestic violence after the entry of the original DVPO. This language implies that where even a one-year DVPO has expired, the plaintiff would need to allege and prove commission of an additional, more recent act of domestic violence to obtain a new order. That is, the plaintiff can rely upon the original acts that formed the basis for the issuance of the original ex parte DVPO and/or one-year DVPO for a limited time. Of course, the plaintiff is not prevented in any way from seeking a new DVPO in the event of new and additional acts of domestic violence, but the renewal and extensions of a DVPO based upon a particular act are limited by the statute.\nThe DVPO at issue here is clearly and exclusively based upon an act that occurred prior to the expiration of the ex parte order. The orders continuing the hearing on the ex parte order, including the one that set the matter for 4 June 2012, had scheduled the case \u201cfor hearing for emergency relief pursuant to G.S. 50B-2\u201d \u2014 and not for entry of an independent order under N.C. Gen. Stat. \u00a7 50B-3. The orders referred back to the original ex parte order by noting that \u201c [t]he Court orders that the ex parte order entered in this case is continued in effect until the date of the hearing set above.\u201d Ultimately, the ex parte order then expired by its own terms.\nApplying N.C. Gen. Stat. \u00a7 50B-3(b), the ex parte DVPO had already been in effect for more than one year (the maximum permissible length of time even for a DVPO entered upon a full adversarial hearing under N.C. Gen. Stat. \u00a7 50B-2(c)(5)). We also note that no one-year DVPO that was subject to renewal under N.C. Gen. Stat. 50B-3 had ever been entered. Based upon the orders entered continuing the ex parte DVPO and setting this matter for hearing, upon expiration of the ex parte order after more than a year, the trial court no longer had jurisdiction under the original complaint to enter an order further extending the DVPO.\nWe note that this situation is distinguished from a case in which a plaintiff files a civil action or motion seeking a DVPO, but either because the plaintiff did not request an immediate ex parte order or because the trial court declined to issue an immediate ex parte order, the trial court has not entered an ex parte order and has scheduled a hearing upon the complaint or motion to consider issuance of a DVPO after service of process and notice of hearing to the defendant, under N.C. Gen. Stat. \u00a7 50B-2(b) (emphasis added):\nA 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 appropriate law enforcement agency where the defendant is to be served.\nIn fact, Form AOC-CV-305, Rev. 6/2000 has pre-printed language to provide notice of a hearing to the defendant in just that situation:\n2. A hearing will be held before a district court judge at the date, time and location indicated below. At that hearing it will be determined whether emergency relief in protecting the plaintiff and the plaintiff\u2019s children) should be granted.\nThis option was not checked in this case since an ex parte order was entered, and the first option, as noted above, was checked instead.\nThis case also does not present the issue whether a hearing upon a domestic violence complaint or motion, when no ex parte order was entered, could be continued repeatedly, even for more than a year, and we do not address that situation. In the case before us, plaintiff and the trial court proceeded as directed by the ex parte order issued under N.C. Gen. Stat. \u00a7 50B-2(c). As noted above, the ex parte DVPO was properly entered, remained in effect for 18 months by serial continuances of the order, and then expired by its own terms. Thus, we hold that when an ex parte DVPO expires beyond the time limitations of N.C. Gen. Stat. \u00a7 50B-3(b) for a one-year DVPO without a motion to renew, the trial court no longer has authority to enter an order effectively further extending the expired DVPO, as the trial court would also be unable to extend even a one-year DVPO in this situation without a motion to renew.\nBecause the trial court, in this case, lacked authority to enter the September 2012 order after the ex parte DVPO expired more than 18 months after its original entry, we vacate the September 2012 DVPO and remand for a hearing on defendant\u2019s motion for return of firearms. Because of our disposition of this appeal, we need not address defendant\u2019s remaining arguments regarding the September 2012 DVPO.\nAffirmed in part, vacated in part, and remanded in part.\nChief Judge MARTIN and Judge STROUD concur.\n. This order was on the form entitled \u201cNOTICE OF HEARING ON DOMESTIC VIOLENCE PROTECTIVE ORDER,\u201d AOC-CV-305, Rev. 6/2000 Administrative Office of the Courts.\n. This order was on the form entitled \u201cORDER CONTINUING DOMESTIC VIOLENCE HEARING AND EX PARTE ORDER,\u201d AOC-CV-316, Rev. 12/04.\n. N.C. Gen. Stat. \u00a7 50B-3 (2013) provides that \u201c[p]rotective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year.\u201d We first note that this subsection, taken in context, clearly refers only to a DVPO entered after service of process and a hearing held after notice to the defendant, even though the general term \u201cprotective order\u201d is used. N.C. Gen. Stat. \u00a7 50B-2 (2013) specifically addresses \u201ctemporary orders\u201d and provides for a limited duration of an ex parte DVPO of 10 days, unless the ex parte order is continued by the trial court. .We are, therefore, referring to this DVPO as a \u201cone-year DVPO\u201d to distinguish it from the ex parte DVPO, although we recognize that a DVPO entered after service and notice to the defendant could be entered for afixed period of time less than one year.\n. The emphasized portion of this provision was added 1 October 2012 and is applicable to actions and motions filed on or after that date. 2012 N.C. Sess. Law 20 \u00a7\u00a7 1, 3. Therefore, it is not applicable to this case. Nevertheless, it is indicative of the General Assembly\u2019s current intent to limit the length of time an ex parte DVPO may continue in effect.\n. It would be absurd to read the provision of N.C. Gen. Stat. \u00a7 50B-3(b) that \u201cprotective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year\u201d as applying to an emergency order under N.C. Gen. Stat. \u00a7 50B-2(b) or an ex parte order under N.C. Gen. Stat. \u00a7 50B-2(c), since those sections include specific time requirements applicable to those orders. It would seem obvious that the statute would not permit the court to enter an ex parte order that lasted for a full year. But, as noted above, N.C. Gen. Stat. \u00a7 50B-l(c) (2013) also defines the term \u201cprotective order\u201d broadly, to include \u201cany order entered pursuant to this Chapter upon hearing by the court or consent of the parties.\u201d\n. The ex parte DVPO\u2019s time limitations are specifically addressed by N.C. Gen. Stat. \u00a7 50B-2(b) and (c).\n. As plaintiff here did not file a motion to renew under N.C. Gen. Stat. \u00a7 50B-3(b), we do not address whether an ex parte DVPO is actually subject to renewal in this manner, nor do we mean to suggest that it could be, particularly given the limitations of N.C. Gen. Stat. \u00a7 50B-2(c)(5).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "No brief filed on behalf of plaintiff-appellee.", "Wyrick Robbins Yates & Ponton, LLP, by Tobias S. Hampson, for defendant-appellant." ], "corrections": "", "head_matter": "ELIZABETH McDUFFIE RUDDER, Plaintiff v. WILLIAM OVERTON RUDDER, Defendant\nNo. COA13-424\nFiled 3 June 2014\n1. Domestic Violence\u2014ex parte protective order\u2014findings of fact\u2014pre-printed form\u2014minimally sufficient\nThe trial court did not err by entering an ex parte domestic violence protective order (DVPO) against defendant. The court\u2019s findings of fact marked on a pre-printed form were minimally sufficient to support its conclusions that defendant committed acts of domestic violence against plaintiff and that it clearly appeared that there was a danger of acts of domestic violence against plaintiff. The trial court\u2019s failure to mark the first box of Finding 2 was merely a clerical error.\n2. Domestic Violence\u2014one-year protective order\u2014ex parte order expired\u2014court lacked authority\nThe trial court erred by entering a one-year domestic violence protection order (DVPO) after an ex parte DVPO had been in effect for more than 18 months, but then expired without being renewed. The trial court did not have authority to enter the one-year DVPO that was based upon the same complaint as the ex parte DVPO.\nAppeal by defendant from orders entered 23 November 2010 by Judge L. Walter Mills and 28 September 2012 by Judge Kirby Smith in Carteret County District Court. Heard in the Court of Appeals 23 September 2013.\nNo brief filed on behalf of plaintiff-appellee.\nWyrick Robbins Yates & Ponton, LLP, by Tobias S. Hampson, for defendant-appellant." }, "file_name": "0173-01", "first_page_order": 183, "last_page_order": 196 }