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Domestic Relations – Parent & Child – DVPO – Attorney’s Time Conflict – Jurisdiction – Risk of Future Harm

Bowden v. Washburn (Lawyers Weekly No. 012-134-17, 13 pp.) (Wanda Bryant, J.) Appealed from Harnett County District Court (R. Dale Stubbs, J.) N.C. App. Unpub.

Holding: Since respondent’s counsel was handling a separate abuse, neglect, or dependency matter in juvenile court in another county at the same time as the hearing scheduled in this domestic violence case, the trial court acted within its discretion when it (1) agreed to counsel’s solution of delaying the hearing until 11:00 a.m., (2) waited until noon, and (3) proceeded in counsel’s absence.

We affirm the trial court’s issuance of a domestic violence protective order against respondent and grant of temporary custody to petitioner.

If an attorney has conflicting engagements in different courts, certain juvenile matters take precedence. The trial court in this domestic violence case attempted to accommodate respondent’s counsel according to her proposed solution by waiting an hour past the requested continuance.

The responsibility fell on counsel to guarantee that the court was informed of the delay in the juvenile matter. Given the court’s attempt to accommodate respondent’s counsel’s schedule, the trial court acted within its discretion when it moved forward on the domestic violence case.

Where the petitioner-father was a North Carolina resident with joint legal custody of his children, and where he sought relief for acts of domestic violence pursuant to G.S. Chapter 50B, the basic requirements for subject matter jurisdiction pursuant to G.S. § 50B-2(a) were satisfied.

The respondent-mother, a resident of Hawaii, raises the issue of personal jurisdiction for the first time on appeal. Respondent’s counsel notified the trial court that she represented respondent and requested that respondent be allowed to testify by telephone, thereby indicating a willingness to participate in the hearing. This functioned as respondent’s submission to the trial court’s authority.

Moreover, respondent later filed a motion and amended motion to set aside the trial court’s DVPO. Thus, respondent made a general appearance before the trial court prior to objecting to the trial court’s exercise of personal jurisdiction. Therefore, respondent waived her objection to the trial court’s exercise of personal jurisdiction.

Finally, petitioner presented sufficient evidence that the minor children were exposed to a risk of future harm. Petitioner testified to the veracity of the allegations in the complaint, as related to him by his children immediately upon their arrival in North Carolina. The complaint alleged that respondent spanked the parties’ six- and eight-year-old children, forced them to ingest dishwashing liquid when they would not finish their dinner, and forced them to hold a push-up stance and do “wall sits.”

The evidence presented to the trial court was sufficient to establish specific facts and circumstances from which the trial court could find that the acts committed by respondent upon her children were acts capable of causing bodily injury and that there existed a substantial risk of future harm. As a result, the conclusion of the trial court – that respondent committed acts of domestic violence against the children – is supported by the facts as found by the trial court. Thus, the trial court acted properly in removing the children from plaintiff’s custody.

Affirmed.


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