Shackley v. Shackley

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-774
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-774 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 NICOLE HARTFORD SHACKLEY, Plaintiff

Pitt County v. No. 13 CvD 537

NORMAN HENRY SHACKLEY, Defendant

Appeal by defendant from order entered 15 March 2013 by

Judge Ericka Y. James in Pitt County District Court. Heard in

the Court of Appeals 6 January 2014.

Nicole Shackley, pro se. No brief filed.

David C. Sutton for Defendant.

ERVIN, Judge.

Defendant Norman Henry Shackley, Jr., appeals from a

domestic violence protective order entered against him as the

result of acts of domestic violence that he was alleged to have

committed against his former wife, Plaintiff Nicole Hartford

Shackley. On appeal, Defendant argues that the trial court’s

findings that he committed acts of domestic violence against

Plaintiff lack adequate evidentiary support and that the trial -2- court was biased against him. After careful consideration of

Defendant’s challenges to the trial court’s order in light of

the record and the applicable law, we conclude that the trial

court’s order should remain undisturbed.

I. Factual Background

A. Substantive Facts

Plaintiff and Defendant were married from 2006 to 2009 and

were living together as of 4 March 2013. According to

Plaintiff, Defendant threatened to kill her during the course of

numerous phone conversations that occurred between 28 February

and 3 March 2013.1 At the time that Defendant made these

threatening phone calls, Plaintiff was in Raleigh and Defendant

was in Greenville and wearing an electronic monitoring bracelet

that would have notified law enforcement officers if he changed

locations. Even so, Plaintiff testified that she was terrified

by Defendant’s threats because she believed that Defendant would

cut off the bracelet and “hunt [her] down and kill [her].”2

1 As a result of the fact that none of these conversations were recorded, the only evidence of the threats that Defendant allegedly made against Plaintiff was contained in Plaintiff’s testimony. 2 On cross-examination, Defendant questioned Plaintiff concerning the existence of certain recorded phone conversations between Plaintiff and Defendant and argues on appeal that the trial court violated the “best evidence” rule by refusing to require the production of these recordings and related transcripts. However, Plaintiff testified that the calls in -3- According to Plaintiff, Defendant’s threats were motivated

by a number of factors. For example, Plaintiff testified that

Defendant had been charged with impersonating a police officer

and threatened to kill her if she did not present false

testimony in his favor in that criminal proceeding. In

addition, Plaintiff testified that Defendant had told her that,

in the event that she failed to repay $35,000 that he claimed

she owed him in connection with a plastic surgery-related bill

by the time that he was ready to move to South Carolina, he

would kill her or force her to move with him and work off the

debt. As a result of these threats, Plaintiff was “really

scared, because [she] believe[d] he [would] do it.”

In addition, Plaintiff described other incidents in which

Defendant engaged in acts of domestic violence against her that

had occurred prior to the incidents upon which Plaintiff relied

in support of her effort to obtain the issuance of a DVPO. In

2012, while Plaintiff and Defendant were having an argument,

Defendant threw Plaintiff against a closet, put her in a

headlock, twisted her neck, threw her on a bed, jumped on top of

question did not contain Defendant’s threats to kill her and had not led to her request for the issuance of a DVPO. As a result, since these recordings and transcripts do not relate to the conversations that underlie Plaintiff’s request for the issuance of a DVPO, we need not address the validity of Defendant’s challenge to the trial court’s refusal to require the production of these items. -4- her, and threatened to kill her. On another occasion, Defendant

jumped on top of Plaintiff and threatened to kill her while

holding her by the neck. As a result of these prior

experiences, Plaintiff testified that she believed that, in the

event that Defendant were to find her, he would kill her.

B. Procedural History

On 5 March 2013, Plaintiff filed a complaint seeking the

entry of a domestic violence protective order against Defendant.

On the same day, Judge David Leech entered an ex parte domestic

violence protective order against Defendant and scheduled a

hearing concerning the issues raised by Plaintiff’s complaint

for 15 March 2013. At the conclusion of the 15 March 2013

hearing, the trial court determined that Defendant had committed

acts of domestic violence against Plaintiff and entered an order

prohibiting Defendant from committing or threatening to commit

any further acts of domestic violence against Plaintiff,

ordering Defendant to refrain from having any contact with

Plaintiff and to avoid being present at Plaintiff’s residence

and workplace, and requiring Defendant to surrender any firearms

in his possession. Defendant noted an appeal to this Court from

the trial court’s order.3

3 Although the domestic violence protective order from which Defendant has appealed expired on 14 March 2014, this Court has held that, since a “protective order could have collateral legal -5- II. Substantive Legal Analysis

A. Validity of Trial Court’s Findings of Domestic Violence

In his first challenge to the trial court’s order,

Defendant contends that the trial court erred on the ground that

its determination to the effect that Defendant had committed

acts of domestic violence against Plaintiff lacked adequate

record support. More specifically, Defendant asserts that the

record does not support the trial court’s determination that he

engaged in acts of domestic violence against Plaintiff as

alleged in Plaintiff’s complaint given that Plaintiff’s

complaint alleged that the acts of domestic violence that he

allegedly committed against Plaintiff occurred on a single date

rather than over a period of time and given that the trial court

denied Plaintiff’s request to amend her complaint to conform to

the evidence. Defendant is not entitled to any relief on the

basis of this argument.

1. Standard of Review

When the trial court sits without a jury regarding a [domestic violence protective order], the standard of review on appeal is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts. Where there

and non-legal consequences—including the stigma of judicial determination of domestic violence—this appeal [of an expired domestic violence protective order] is not moot.” Eagle v. Johnson, 159 N.C. App. 701, 703, 583 S.E.2d 346, 347 (2003). -6- is competent evidence to support the trial court’s findings of fact, those findings are binding on appeal.

Kennedy v. Morgan, __ N.C. App. __, __, 726 S.E.2d 193, 195

(2012) (quoting Hensey v. Hennessy, 201 N.C. App. 56, 59, 685

S.E.2d 541, 544 (2009)). In the event that “‘different

reasonable inferences can be drawn from the evidence, the

determination of which reasonable inferences shall be drawn is

for the trial [court],’” since “‘the trial judge is present for

the full sensual effect of the spoken word, with the nuances of

meaning revealed in pitch, mimicry and gestures, appearances and

postures, shrillness and stridency, calmness and composure, all

of which add to or detract from the force of spoken words.’”

Brandon v. Brandon, 132 N.C. App. 646, 651-52, 513 S.E.2d 589,

593 (1999) (quoting Elec. Motor & Repair Co. v. Morris &

Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968), and

State v. Sessoms, 119 N.C. App. 1, 6, 458 S.E.2d 200, 203

(1995), aff’d, 342 N.C. 892, 467 S.E.2d 243, cert. denied, 519

U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d 129 (1996)) (alteration

in original). As a result, “[t]he trial court’s findings turn

in large part on the credibility of the witnesses, [and] must be

given great deference by this Court.” Brandon, 132 N.C. App. at

652, 513 S.E.2d at 593 (quotation omitted). To support entry of

a domestic violence protective order, the trial court must also -7- make a conclusion of law “‘that an act of domestic violence has

occurred.’” Kennedy, __ N.C. App. at __, 726 S.E.2d at 196

(quoting N.C. Gen. Stat. § 50B–3(a)). An act of domestic

violence is defined, in pertinent part, as “[p]lacing the

aggrieved party or a member of the aggrieved party’s family or

household in fear of imminent serious bodily injury.” N.C. Gen.

Stat. § 50B-1(a)(2). “The test for whether the aggrieved party

has been placed ‘in fear of imminent serious bodily injury’ is

subjective; thus, the trial court must find as fact the

aggrieved party ‘actually feared’ imminent serious bodily

injury.” Smith ex rel. Smith v. Smith, 145 N.C. App. 434, 437,

549 S.E.2d 912, 914 (2001) (quoting Brandon, 132 N.C. App. at

654, 513 S.E.2d at 595). In the event that the trial court

determines “that an act of domestic violence has occurred, the

court shall grant a protective order restraining the defendant

from further acts of domestic violence.” N.C. Gen. Stat. § 50B-

3(a). We will now utilize this standard of review to evaluate

Defendant’s challenge to the trial court’s order.

2. Adequacy of Support for Trial Court’s Findings

In this case, the trial court found that Defendant placed

Plaintiff in fear of imminent serious bodily injury by

threatening to kill her. The trial court also found that

Defendant possessed, owned, or had access to several firearms; -8- that Defendant made threats to seriously injure or kill

Plaintiff; and that “Defendant has [engaged in] a pattern of

prior conduct involving the use of violence against

[P]laintiff.” These findings are clearly sufficient to support

the issuance of a domestic violence protective order.

According to the evidence that Plaintiff presented before

the trial court, Defendant threatened to kill Plaintiff over the

phone on multiple occasions. The threats that Plaintiff claimed

that Defendant had made against her stemmed from Defendant’s

demand that she perjure herself in a criminal proceeding in

which Defendant was charged with impersonating a police officer.

In addition, Defendant threatened to kill Plaintiff if she did

not pay the $35,000 that he claimed she owed him in connection

with a plastic surgery-related bill. As a result of these

threats, Plaintiff testified that she feared for her life,

asserting that she was “really scared,” and “terrified” that

Defendant was going to kill her. As a result of the fact that

trial court findings “turn in large part on the credibility of

the witnesses” and “must be given great deference by this

Court,” Brandon, 132 N.C. App. at 652, 513 S.E.2d at 593, we

hold that Plaintiff’s testimony supports the trial court’s

determination that Defendant placed Plaintiff in fear of

imminent serious bodily injury. Moreover, given that, “where -9- 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 [N.C. Gen. Stat. §] 50B-

1(a)(2),” Id. at 654-55, 513 S.E.2d at 595, we further hold that

the trial court’s finding of fact that Plaintiff was “placed in

fear of imminent serious bodily injury” supports the trial

court’s conclusion that Defendant committed acts of domestic

violence against Plaintiff so that a domestic violence

protective order should be entered.

In seeking to persuade us to reach a different result,

Defendant argues that the trial court’s findings lack adequate

evidentiary support on the grounds that, while Plaintiff’s

complaint alleges that the relevant acts of domestic violence

occurred on 4 March 2013, Plaintiff testified that the phone

calls in question actually took place between 28 February and 3

March 2013 and notes that the trial court denied Plaintiff’s

request to amend her complaint to conform to the evidence

concerning the dates upon which these acts of domestic violence

occurred.4 Defendant has not, however, cited any authority in

4 Admittedly, the only date mentioned in the complaint is 4 March 2013. However, Plaintiff testified that the reference in the complaint to 4 March 2013 related to the date upon which she wrote the factual statement that she submitted in support of her request for the issuance of a DVPO rather than to the dates upon which the acts of domestic violence upon which her complaint rested actually occurred. -10- support of his contention that the discrepancy between the date-

related allegations contained in the complaint and the dates

specified in Plaintiff’s testimony deprives the domestic

violence protective order at issue here of adequate evidentiary

support. According to well-established North Carolina law, an

argument in support of which no authority is cited will be

deemed abandoned. State v. Sinnott, 163 N.C. App. 268, 273, 593

S.E.2d 439, 442-43, appeal dismissed, 358 N.C. 738, 602 S.E.2d

678 (2004), cert. denied, 544 U.S. 962, 125 S. Ct. 1740, 161 L.

Ed. 2d 604 (2005). As a result, given that the record evidence

supports the trial court’s determination that Defendant

committed acts of domestic violence against Plaintiff and given

that Defendant has failed to cite any authority in support of

his challenge to the trial court’s findings based upon the

difference between the date specified in the complaint and the

dates set out in Plaintiff’s testimony, we decline to address

this argument, State v. Latham, 157 N.C. App. 480, 486, 579

S.E.2d 443, 448, disc. review denied, 357 N.C. 509, 588 S.E.2d

376 (2003); N.C. R. App. P. 28(b)(6), and conclude that the

record contains sufficient evidence to support the trial court’s

finding that Defendant placed Plaintiff in fear of imminent

serious bodily injury by threatening to kill her and had, by

doing that, committed an act of domestic violence against her. -11- B. Judicial Bias

Secondly, Defendant argues that he was deprived of his

right to a fair hearing in connection with Plaintiff’s request

for the issuance of a domestic violence protective order on the

grounds that the trial court was biased against him. In support

of this contention, Defendant argues that the trial judge’s

statement to the effect that “[b]lood is not going to be on my

hands” demonstrates that the trial court was biased against him.

Defendant is not entitled to relief from the trial court’s order

on the basis of this contention either.

“On motion of any party, a judge should disqualify

himself/herself in a proceeding in which the judge’s

impartiality may reasonably be questioned, including but not

limited to instances where . . . [t]he judge has a personal bias

or prejudice concerning a party[.]” Code of Judicial Conduct

Canon 3C(1)a. Canon 3 does not, however, impose an affirmative

duty upon members of the trial bench to disqualify themselves on

their own motion. In re Key, 182 N.C. App. 714, 719, 643 S.E.2d

452, 456, disc. review denied, 361 N.C. 428, 648 S.E.2d 506

(2007) (stating that, “[w]hile [Canon 3 of the Code of Judicial

Conduct] certainly encourages a judge to recuse himself or

herself in cases where his or her ‘impartiality may reasonably

be questioned’ upon [his or her] own motion, [he or she is] not -12- required to do so in the absence of a motion by a party”). In

the event that a party fails to move to disqualify the trial

judge during the course of the proceedings in the court below,

the issue of whether the trial judge should have disqualified

himself or herself is not properly preserved for purposes of

appellate review. Id. (citing State v. Love, 177 N.C. App. 614,

627–28, 630 S.E.2d 234, 243, disc. review denied, 360 N.C. 580,

636 S.E.2d 193 (2006)). A careful review of the record

presented for our review in this case indicates that Defendant

never moved to disqualify the trial court or raised the issue of

the trial court’s alleged bias in the court below in any other

manner. As a result, given Defendant’s failure “to move that

the trial judge recuse h[er]self,” he is not entitled to “raise

on appeal the judge’s alleged bias based on an undesired

outcome.” Sood v. Sood, __ N.C. App. __, __, 732 S.E.2d 603,

608, disc. review denied, 366 N.C. 417, 735 S.E.2d 336 (2012).

As a result, we hold that Defendant is not entitled to an award

of appellate relief based upon the trial court’s alleged bias in

favor of Plaintiff.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s order

provide any basis for an award of appellate relief. As a -13- result, the trial court’s order should be, and hereby is,

affirmed.

Chief Judge MARTIN and Judge McCULLOUGH concur.

Report per Rule 30(e).