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Domestic Relations – DVPO Complaint – Subjective Fear – Incorrect Standard – Pregnancy Hormones

Sylvester v. Sylvester (Lawyers Weekly No. 012-008-17, 6 pp.) (Chris Dillon, J.) (John Tyson, J., concurring in the result only without separate opinion) Appealed from Buncombe County District Court (Edwin Clontz, J.) N.C. App. Unpub.

Holding: The trial court erred when it essentially found that the plaintiff-wife subjectively feared the defendant-husband but then denied the wife’s petition for a domestic violence protective order, anyway.

We vacate the trial court’s denial of a DVPO. Remanded.

In considering whether the husband committed domestic violence by committing an act which placed the wife in fear of imminent serious bodily injury, the plain language of G.S. § 50B-1(a)(2) imposes only a subjective test, rather than an objective reasonableness test, to determine whether an act of domestic violence has occurred.

The wife put on evidence that the husband made threats and acted violently in their home and that she was actually afraid of him. She testified that the husband (1) smashed a bathroom light with a shower rod while she was taking a bath; (2) cut his wrists in front of her; (3) smashed his head through a sliding glass door of their home during an argument; (4) physically restrained her when she tried to exit the home, causing her to fall to the floor while holding their child; and (5) said to her, “[I]s this the part of the story where the husband strangles his family and then kills himself[?]” She also testified that the husband’s actions caused her to feel “really scared.”

The husband admitted that the wife was scared of him. He did not deny any of her testimony concerning his behavior, except to say that her fall to the floor was an accident.

After considering the evidence, the trial court suggested that it believed that the wife’s fear was caused, at least in part, by the husband’s behavior. However, the trial court based its denial of the DVPO on its belief that the wife’s fear was mostly the result of a “feeling of paranoia” caused by “hormones involved in [her] pregnancy.”

The trial court did not apply the subjective test concerning the wife’s fear. The trial court denied the wife’s petition even though it essentially found that the wife subjectively feared the husband.

The trial court also erred in finding that the wife’s fear was, at least in part, caused by “hormones involved in pregnancy.” There was no competent evidence to support this finding.

Vacated and remanded.

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