Wornstaff v. Wornstaff , 179 N.C. App. 516 ( 2006 )

WYNN, Judge.

Defendant Don Ray Womstaff appeals from a trial court’s entry of a protective order against him for alleged acts of domestic violence against Plaintiff Donna Wornstaff. Because there is competent evidence in the record to support the trial court’s finding that Ms. Wornstaff was in fear of continued harassment under section 50B-l(a)(2) of the North Carolina General Statutes, we affirm the trial court’s order.

The facts pertinent to this appeal indicate that the parties married in 1988; had one child born in 1992; owned a business, jointly; and separated in May 2005.

According to Mr. Womstaff, on 31 July 2005, upon discovering that his telephone and power lines were cut off at his home, he decided to go to the couple’s jointly-owned business because he wanted to make sure that nothing had happened to it. He called the police, asking that an officer accompany him to the business because “things were awry at his house.” Once there, Mr. Wornstaff met the officer and retrieved the key from the manager on duty because the business was closed.

About an hour later, Ms. Womstaff arrived. An argument ensued, during which Mr. Womstaff asked Ms. Wornstaff, “Would you like to hurt me? Would you like to kill me and hit me? Would that make you feel better?” According to Ms. Womstaff, Mr. Womstaff picked up a stapler, banged it on the counter and in his hand, and threw a water bottle in her direction. Ms. Wornstaff asked the officer to remove Mr. Wornstaff, but he refused since Mr. Womstaff was a joint owner in the business. Ms. Wornstaff left the business, returned the next morning, and noticed that Mr. Wornstaff was still present. Thereafter, she filed a complaint seeking a domestic violence protective order against Mr. Wornstaff.

At the hearing on her complaint and motion for a domestic violence protective order, Ms. Womstaff further stated that during her encounter with Mr. Wornstaff at their business on 31 July, Mr. Womstaff pushed her out of his way, that she was scared, that she thought Mr. Wornstaff was “out of control,” and that he could have eventually hit her with something. Ms. Wornstaff also testified that she and Mr. Womstaff had prior confrontations that included yelling.

The trial court found that Mr. Wornstaff had committed domestic violence against Ms. Womstaff and entered a domestic violence protective order against him for one year. Mr. Womstaff appeals to this Court, arguing that (I) the trial court’s findings of fact are not supported by competent evidence; and (II) the findings of fact do not support the trial court’s conclusion of law.¹

I.

Mr. Wornstaff first contends that there was insufficient evidence to support the trial court’s finding that he committed an act of domestic violence, against Ms. Womstaff. He argues that his actions were not shown to rise to the necessary level of continued harassment as defined in section 14-277.3 of the North Carolina General Statutes. We disagree.

Section 50B-l(a)(2) of the North Carolina General Statutes defines domestic violence as “[p]lacing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3, that rises to such a level as to inflict substantial emotional distress.” N.C. Gen. Stat. § 50B-1 (a)(2) (2005). Harassment is defined as “knowing conduct. . . directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” N.C. Gen. Stat. § 14-277.3 (2005). The plain language of the statute requires the trial court to apply only a subjective test to determine if the aggrieved party was in actual fear; no inquiry is made as to whether such fear was objectively reasonable under the circumstances. Brandon v. Brandon, 132 N.C. App. 646, 654-55, 513 S.E.2d 589, 595 (1999).

Here, the trial court found that, by yelling at her, Mr. Womstaff placed Ms. Womstaff in fear of continued harassment. Ms. Womstaff testified that Mr. Womstaff yelled, “Would you like to hurt me? Would you like to kill and hit me? Would that make you feel better?”, and that he banged the stapler on the counter, threw a water bottle in her direction, and refused to leave the jointly-owned business during the late night hours. Ms. Womstaff further testified that she is afraid of Mr. Womstaff, and she thinks that he is “out of control.” Upon this evidence, the trial court entered the finding of fact that Ms. Womstaff was placed in fear of continued harassment that rose to such a level as to inflict substantial emotional distress.

Where the trial judge sits as the finder of fact, “and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial judge.” Sharp v. Sharp, 116 N.C. App. 513, 530, 449 S.E.2d 39, 48 (citation omitted), disc. review denied, 338 N.C. 669, 453 S.E.2d 181 (1994). “The trial judge has the authority to believe all, any, or none of the testimony.” Id. As in previous cases, “[w]e emphasize that the trial court was present to see and hear the inflections, tone, and temperament of the witnesses, and that we are forced to review a cold record.” Brandon, 132 N.C. App. at 652, 513 S.E.2d at 594.

In this case, while different reasonable inferences could be drawn from the evidence presented, we must defer to the trial judge’s determination of which reasonable inferences should have been drawn. Based on our review of the evidence, we conclude that there was competent evidence to support the trial judge’s finding that Mr. Womstaff placed Ms. Womstaff in actual fear of continued harassment that rose to such a level as to inflict substantial emotional distress.

II.

We next determine whether the trial court’s findings of fact support its conclusion of law that Mr. Womstaff “ha[d] committed acts of domestic violence against [Ms. Womstaff].” Id., 513 S.E.2d at 594.

Domestic violence is statutorily defined as “[p]lacing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment . . . that rises to such a level, as to inflict substantial emotional distress.” N.C. Gen. Stat. § 50B-1 (a)(2). Previously, this Court has held that, where the trial court finds that a plaintiff is actually subjectively in fear of serious bodily injury, an act of domestic violence has occurred pursuant to North Carolina General Statutes § 50B-1 (a)(2). Brandon, 132 N.C. App. at 654-55, 514 S.E.2d at 595. Since that case, our legislature has amended the statute to also include the fear of “continued harassment . . . that rises to such a level as to inflict substantial emotional distress.” Thus, if the trial court enters such a finding of actual fear of continued harassment, an act of domestic violence has occurred.

As we have already determined that competent evidence was presented to support the trial court’s finding that Mr. Womstaff “placed [Ms. Wornstaff] ... in fear of . . . continued harassment that [rose] to such a level as to inflict substantial emotional distress[,]” we also conclude that this finding of fact is sufficient to support the trial court’s conclusion of law, that Mr. Wornstaff had committed an act of domestic violence against Ms. Womstaff. Because the trial court’s findings of fact support its conclusion of law, we affirm the trial court’s entry of a domestic violence protective order against Mr. Wornstaff.

Affirmed.

Judge HUDSON concurs. Judge TYSON dissents in a separate opinion.

1 . As a side matter to this appeal, we note that the domestic violence protective order in this case expired on 11 August 2006. Generally, when an issue is no longer in controversy, the appeal is dismissed as moot. See Smith v. Smith, 145 N.C. App. 434, 436, 549 S.E.2d 912, 914 (2001) (“[A]n appeal should be dismissed as moot when... the underlying controversy . . . ceasefs] to exist.”); Pearson v. Martin, 319 N.C. 449, 451, 355 S.E.2d 496, 497 (1987) (when "the relief sought has been granted or . . . the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law[.]” (citation omitted)). However, this Court has held that a defendant’s appeal of an expired domestic violence protective order is not moot because of the “stigma that is likely to attach to a person judicially determined to have committed [domestic] abuse” and “the continued legal significance of an appeal of an expired domestic violence protective order.” Smith, 145 N.C. App. at 437, 549 S.E.2d at 914 (internal quotes and citation omitted). Thus, we address the merits of Mr. Wornstaffs appeal. See id.