McKinney v. Duncan ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-565
Filed: 5 December 2017
Davidson County, Nos. 16 CVD 1729-30
SHIRLEY G. McKINNEY and ROBERT J. McKINNEY, Plaintiffs,
v.
MARK JEFFREY DUNCAN, Defendant.
Appeal by defendant from orders dated 12 December 2016 by Judge Mary F.
Paul in Davidson County District Court. Heard in the Court of Appeals 19 October
2017.
David S. Doherty for plaintiffs-appellees.
Richard Croutharmel for defendant-appellant.
ZACHARY, Judge.
Mark Duncan (defendant) appeals from orders finding him in contempt of
earlier orders that had directed him to have no contact with Shirley McKinney or
Robert McKinney (plaintiffs). On appeal, defendant argues that the trial court erred
by “failing to specify a deadline” within which defendant could purge himself of civil
contempt, with the result that the court’s order was “impermissibly vague in that it
effectively held the defendant in civil contempt indefinitely.” Defendant also argues
that the trial court erred by failing to find that he had the present ability to comply
with the purge condition that he obtain a psychological examination within 60 days
MCKINNEY V. DUNCAN
Opinion of the Court
of the entry of the order. For the reasons discussed below, we conclude that defendant
has attempted to appeal from orders that were not entered. An order cannot be
enforced or appealed until it is entered, and we are without jurisdiction to consider
defendant’s appeal, which must be dismissed.
Factual and Procedural Background
On 30 June 2016, plaintiffs filed complaints seeking entry of no-contact orders
barring defendant from harassing or threatening them. A hearing was conducted on
plaintiffs’ complaints in domestic violence court on 5 July 2016, before the Honorable
B. Carlton Terry, Jr. Ms. McKinney testified that defendant and his wife had moved
into a house across the street from plaintiffs’ house about a year earlier. After moving
into the neighborhood, defendant had engaged in threatening and upsetting behavior,
including shouting at Ms. McKinney and making “pig noises” in her direction,
displaying a banner that disparaged the condition of plaintiffs’ yard, and sending
letters to Ms. McKinney that she found frightening. On one occasion, defendant
displayed a firearm and pointed it at plaintiffs’ house, before firing it in a different
direction. Mr. McKinney testified that he was 28 years old and lived with his mother,
Ms. McKinney. His testimony generally corroborated that of Ms. McKinney; in
addition, Mr. McKinney testified that defendant stalked and harassed him as Mr.
McKinney walked from his home to his employment at a Walmart store a few minutes
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MCKINNEY V. DUNCAN
Opinion of the Court
away. Defendant testified that he was a “62 year old grandfather, disabled veteran”
and that he had not committed the acts to which plaintiffs testified.
At the conclusion of the hearing, the trial court ruled that plaintiffs had proven
by the preponderance of the evidence that on one or more occasions defendant had
harassed or tormented plaintiffs. The court informed defendant that it was entering
no-contact orders and that for the following year defendant would be subject to
restrictions:
So for both of these cases for the next year, sir, I’m ordering
that you should not visit, assault, molest or otherwise
interfere with either of these Plaintiffs. Cease stalking of
them is a term of art. Cease harassment. Do not abuse or
injure them. Do not contact them by telephone, written
communication, or electronic means, or in person. Do not
enter or remain present at their residence, place of
employment for the next year.
On 5 July 2016, Judge Terry entered no-contact orders barring defendant from
having any contact with either plaintiff. Defendant did not appeal these orders.
Upon plaintiffs’ motions filed on 22 August 2016, the assistant clerk of court
issued orders that required defendant to appear and show cause why he should not
be held in contempt of court for violating the terms of the no-contact orders entered
on 5 July 2016. Plaintiffs’ motions alleged that defendant had failed to comply with
the no-contact orders and had continued to engage in harassing and threatening
behavior. The parties subsequently reached an agreement resolving the issues raised
by plaintiffs’ motions. At a hearing conducted on 10 October 2016 by the Honorable
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MCKINNEY V. DUNCAN
Opinion of the Court
Mary F. Paul, the judge reviewed the terms of each of the memoranda of agreement,
which were then signed by the parties, defense counsel, and the court. The judgments
specified ways in which the parties agreed to respect one another’s privacy and avoid
contact, and provided that the judgments could be enforced by contempt proceedings.
Upon plaintiffs’ motions filed on 8 November 2016, the assistant clerk of court
issued orders that required defendant to appear and show cause why he should not
be held in contempt of court for violation of the terms of the no-contact orders entered
5 July 2016 and of the consent judgments entered 10 October 2016 in response to
plaintiffs’ earlier motions for contempt. Plaintiffs alleged that defendant continued
to engage in threatening and harassing behavior directed at plaintiffs. Judge Paul
conducted a hearing on plaintiffs’ motions on 12 December 2016. Ms. McKinney
testified that defendant had continued to violate the terms of the original no-contact
orders and the consent judgments. Defendant testified that he had abided by the
orders.
On 12 December 2016, Judge Paul signed orders with respect to each plaintiff,
finding defendant in contempt of both the no-contact orders and both of the
judgments. The orders stated that defendant was to be incarcerated until he was no
longer in contempt, but that the incarceration was stayed and that defendant could
purge himself of contempt by committing “no further violations of the orders entered
on 7/5/16 and 10/10/16” and by obtaining a psychological evaluation within 60 days.
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MCKINNEY V. DUNCAN
Opinion of the Court
Defendant appealed to this Court from the orders finding him in civil contempt and
setting out the means by which he could purge himself of contempt.
Jurisdiction over Appeal
Proceedings for civil contempt are governed by N.C. Gen. Stat. § 5A-23 (2016).
N.C. Gen. Stat. § 5A-23(e) requires that if, at the conclusion of a hearing, the trial
court finds the alleged contemnor to be in contempt, “the judicial official must enter
an order finding the facts constituting contempt and specifying the action which the
contemnor must take to purge himself or herself of the contempt.” In the present
case, the record fails to establish that the orders holding defendant in contempt were
entered.
A “judgment is entered when it is reduced to writing, signed by the judge, and
filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2016). “This Court has
previously held that Rule 58 applies to orders, as well as judgments, such that an
order is likewise entered when it is reduced to writing, signed by the judge, and filed
with the clerk of court.” Watson v. Price, 211 N.C. App. 369, 370, 712 S.E.2d 154, 155
(2011) (citing Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737-38
(1997)). “[A] judgment that has merely been [orally] rendered, but which has not
been entered, is not enforceable until entry.” Watson, 211 N.C. App. at 371, 712 S.E.2d
at 155. An order “cannot be modified or enforced or appealed before it is entered.”
Spears v. Spears, __ N.C. App. __, __, 784 S.E.2d 485, 502 (2016) (citing Carland v.
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MCKINNEY V. DUNCAN
Opinion of the Court
Branch, 164 N.C. App. 403, 405, 595 S.E.2d 742, 744 (2004) (“Since there was no order
‘entered’ when defendant filed her motion to modify, there was nothing to modify.”)).
In the present case, the trial court orally rendered judgment at the conclusion
of the hearing.
THE COURT: Now, I’m going to hold him in Civil
Contempt. . . . The only way he can purge himself of this
Contempt, is I want to see a full psychological evaluation.
That is to be done within the next, I’ll give him 60 days to
complete it.
...
So the Order is that he gets 30 days in custody, that is
suspended on the condition that he get a full
psychological[] evaluation. And that he not violate any
other portions of this Order. So the suspension is, is that if
they file this and there’s a problem and he hasn’t done that
psychological. It’s not much of a hearing to be done. It’s
already there. I’m staying the execution of my judgment to
give him that opportunity.
Defendant has attempted to appeal from orders that were signed by the trial
court on 12 December 2016. 1 These orders do not bear a file stamp or other indication
that they were ever filed with the clerk of court. As a result, the record fails to
establish that the orders were entered:
Clerk Hinshaw orally rendered her decision . . . on 26 April
2007 in open court. Thereafter, she reduced the order to
writing and dated it. However, nothing in the record
indicates that the order was filed with the clerk of court.
1These orders differ from the court’s orally rendered judgment in that they order defendant to
be “committed to the county jail for an indefinite period” rather than for 30 days. The orders otherwise
track the language used by the court in its orally rendered judgment.
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MCKINNEY V. DUNCAN
Opinion of the Court
The order is devoid of any stamp-file or other marking
necessary to indicate a filing date, and therefore it was not
entered. See Huebner v. Triangle Research Collaborative,
193 N.C. App. 420, 422, 667 S.E.2d 309, 310 (2008)
(asserting that a filing date is to be determined by the date
indicated on the file-stamp); see also Watson, 211 N.C. App.
at 373, 712 S.E.2d at 157 (standing for the proposition that
a signed and dated order is insufficient to be considered
filed).
In re Thompson, 232 N.C. App. 224, 228, 754 S.E.2d 168, 171 (2014). A properly
entered order is essential to vest this Court with subject matter jurisdiction over an
appeal:
Entry of judgment by the trial court is the event which
vests jurisdiction in this Court, and the judgment is not
complete for the purpose of appeal until its entry. Since
entry of judgment is jurisdictional, this Court has no
authority to hear an appeal where there has been no entry
of judgment. . . . [We] must dismiss this appeal since we
lack jurisdiction. See Mason v. Moore County Bd. of
Comm’rs, 229 N.C. 626, 629, 51 S.E.2d 6, 8 (1948) (“If [the
record] fails to disclose the necessary jurisdictional facts we
have no authority to do more than dismiss the appeal.”)
In re Estate of Walker, 113 N.C. App. 419, 420-21, 438 S.E.2d 426, 427 (1994) (citing
Searles v. Searles, 100 N.C. App. 723, 725-26, 398 S.E.2d 55, 57 (1990)). We conclude
that the orders from which defendant has attempted to appeal were never entered,
and we have no subject matter jurisdiction to review their contents. Accordingly,
defendant’s appeal is
DISMISSED.
Judges DAVIS and BERGER concur.
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