Domestic Relations – DVPO – Subjective Fear – Firearms Surrender

Howe v. Howe (Lawyers Weekly No. 11-16-0815, 12 pp.) (John C. Martin, Ch.J.) Appealed from Caldwell County District Court. (J. Gary Dellinger, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: The plaintiff-wife testified that she feared that, since the defendant-husband wasn’t getting his way in the court’s custody proceedings, she was in fear of imminent bodily injury because “it’s just a matter of time before you do something because you’re not getting your way.” This testimony as to the wife’s subjective fear of the husband supports the trial court’s finding that the husband placed the wife in fear of imminent serious bodily injury.

We affirm the trial court’s issuance of a domestic violence protective order; however, we reverse the part of the order that required the husband to surrender his firearms.

On a weekday morning, after the plaintiff-wife told the defendant-husband to leave her property, the husband went across the street and started videotaping the wife and the parties’ child. Then, the husband managed to get to the child’s daycare before the wife and child.

The wife allowed the husband to take the child because she didn’t want to cause a scene. However, the wife then sought a domestic violence protective order.

G.S. § 50B-1(a)(2) does not require a trial court to try to determine whether a plaintiff’s actual subjective fear is objectively reasonable under the circumstances. Accordingly, where the trial court finds that a plaintiff is actually subjectively in fear of imminent serious bodily injury, an act of domestic violence has occurred pursuant to § 50B-1(a)(2).

The trial court made the following findings on the Domestic Violence Order of Protection form: “On May 11, 10, the defendant placed [the plaintiff] in fear of imminent serious bodily injury [and] placed [the plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress.”

Below these findings, the trial court wrote “defendant would not leave when plaintiff told him to leave her property.”

Where the trial court 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 court.

Because the trial court’s findings turn in large part on the credibility of the witnesses and must be given great deference by this court, we hold that plaintiff’s testimony supports the trial court’s finding on this point.

Plaintiff’s testimony supports the trial court’s finding that plaintiff feared imminent serious bodily injury, and this finding in turn supports the trial court’s conclusion that “defendant has committed acts of domestic violence against plaintiff” and the trial court’s entry of a domestic violence protective order.

During the hearing, the trial court allowed defendant the opportunity to play the video he had recorded on May 11, 2010, but informed him it would not “set up the courtroom for either parties [sic] evidence” and stated, “If you want to present evidence it’s up to you to present evidence.” The trial court denied defendant’s request for a recess so that he could get equipment to play the video. Because defendant had ample time before the hearing to obtain the necessary equipment to play the video he wished to offer as evidence and apparently failed to do so, we find no merit to defendant’s assertion that the trial court abused its discretion by denying his request for a recess.

Finally, the trial court did err by ordering that defendant surrender his firearms without entering findings in accordance with G.S. § 50B-3.1(a).

The trial court’s order expired on June 2, 2011. However, G.S. § 50B-3.1(f) provides that a defendant who has surrendered firearms must file a motion requesting the return of the surrendered firearms at the expiration of the domestic violence protective order. Because it is unclear whether defendant has recovered his firearms, we cannot dismiss this issue as moot.

Because G.S. § 50B-3.1(a) provides that “the court shall order the defendant to surrender to the sheriff all firearms … if the court finds any of the following factors…” and the trial court failed to find any of those factors, it erred by ordering that defendant surrender his firearms.

The record contains no evidence that defendant made any of the threats described in G.S. § 50B-3.1(a) factors one, two, and three or that defendant inflicted serious injuries on plaintiff or a minor child as described in factor four. In fact, plaintiff testified that defendant had never threatened her in the past.

Because the evidence fails to support a finding that defendant engaged in any of the acts described in the factors of G.S. § 50B-3.1(a), remand would be futile. Therefore, the portion of the trial court’s order requiring that defendant surrender his firearms is reversed.

Affirmed in part, reversed in part.